EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of December , 1996, is between U.S. PLASTIC
LUMBER CORPORATION, a Nevada corporation (the "Company"), and XXXXX X. XXXXXX
("Executive").
RECITALS
A. Executive has been employed as a principal executive officer of
the Company, and as such has made a unique contribution to the business of the
Company.
B. The Board of Directors of the Company believes that the continued
services of Executive would be of great value to the Company and desires
retaining his services for a number of years.
C. Executive is willing to accept employment by the Company upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and of the mutual benefits herein provided, the
Company and Executive hereby agree as follows:
SECTION 1. TERM OF EMPLOYMENT.
The Company shall employ Executive and Executive hereby accepts
employment by the Company, on the terms and conditions herein contained, for a
period commencing as of the date hereof and ending on the second (2nd)
anniversary of the date hereof, subject to termination as hereinafter provided
(the period from the date hereof through the second (2nd) anniversary of the
date hereof or the date of such termination, as the case may be, being the
(Employment Period").
SECTION 2. DUTIES.
(a) General Duties. During the Employment Period, Executive shall
serve the Company and its subsidiaries in a senior executive capacity with
such duties consistent therewith, and shall perform such other services for
the Company and its subsidiaries consistent with the position of a senior
executive officer, as may be reasonably assigned to Mm from time to time by
the Board of Directors of the Company. Executive's initial position with the
Company shall be Chairman.
(b) Primary Activity. Durina the Employment Period, Executive shall
devote at least 75%, and shall be under no obligation to devote more than 75%,
of his working time and energy to the interests and business of the Company
and its subsidiaries; however, Executive shall be excused from perfo@ng any
services for the Company hereunder during periods of temporary illness or
incapacity and during reasonable vacations, and Executive may devote a
reasonable amount of time to the handling of his personal affairs, without
thereby in any way affecting the compensation to which he is entitled
hereunder. Although it is acknowledged that the duties of a senior executive
officer may require from time to time attention to business at times other
than normal business hours, it is intended by the parties hereto that
Executive shall perform his duties hereunder during normal business hours.
During the Employment Period, Executive shall, to the best of his skill and
ability, use his best efforts and endeavors to the extension and promotion of
the business of the Company and its subsidiaries, to the proper servicing of
such business and to the protection of the good will of such business, both as
now enjoyed and hereafter acquired.
(c) Location and Travel. During the Employment Period, Executive's
business office shall be located (and his duties shall generally be
performable) at the executive offices of the Company in Boca Raton, Florida,
unless otherwise agreed to in writing by the Company and Executive. Executive
agrees to travel for business purposes in a reasonable amount for reasonable
lengths of time, commensurate with Executive's senior executive position.
SECTION 3. COMPENSATION.
As full compensation to Executive for performance of his services
hereunder, the Company agrees to pay Executive and Executive agrees to accept
the following salary and other benefits during the Employment Period:
(a) Salary. The Company shall pay Executive a salary at the annual
rate of $52,000. or such greater annual rate of compensation as the Board of
Directors of the Company may from time to time determine ("Base Salary"). The
Base Salary due Executive hereunder shall be payable in equal weekly
installments, less any amounts required to be withheld by the Company from
time to time from such salary under any applicable federal, state or local
income tax laws or similar laws then in effect. Executive will be granted
options to purchase 100,000 shares of common stock of U.S. Plastic Lumber at
$4.00 per share.
(b) Reimbursement of Expenses. The Company shall reimburse Executive
for all expenses properly incurred by him in the performance of his duties
hereunder in accordance with policies, established from time to time by the
Board of Directors of the Company.
(c) Further Benefits. Executive shall be entitled to participate in
any health, accident, retirement or similar employee benefit plans provided by
the Company generally to its employees to the extent conunensurate with the
participation therein of executives of the Company; provided, however, that
such employee benefit plans shall be no less favorable to Executive than those
provided by the Company to Executive immediately prior to the entering into of
this Agreement. Executive shall be entitled to participate in any present or
future bonus, insurance, pension, retirement, profit sharing or other
compensation or incentive plans adopted by the Company, for the general and
overall benefit of executives of the Company, the extent and manner of
participation to be determined by the Board of Directors of the Company. The
benefits provided in this subsection (c) shall be in addition to the
compensation and benefits provided in the other subsections of this Section 3.
(d) Offices. Executive agrees to serve without additional
compensation, if elected or appointed thereto, in one or more offices or as a
director of any of the Company's subsidiaries, provided, however, that
Executive shall not be required to serve as an officer or director of any
subsidiary if such service would expose him to adverse financial consequences.
SECTION 4. CERTAIN COVENANTS.
In order to induce the Company to enter into this Agreement, Executive
hereby acknowledges and agrees as follows:
(a) Proprietary Information. All documents, records, techniques,
business secrets and other information which have come into the possession of
or have been developed by Executive from time to time in the course and for
the business of the Company and its subsidiaries prior to the date hereof or
which may come into his possession or be developed by him during his
employment by the Company hereunder shall be deemed to be confidential and
proprietary to the Company, except for such documents, records, techniques,
business secrets and other information which have come into the possession of
or have been developed by Executive prior to the date hereof in the course and
for the business of, and which is used by, U.S. Plastic Lumber Corp. None of
such Confidential Information, or any copies thereof, shall be retained by
Executive after termination of the Employment Period.
(b) Confidentiality. Executive shall keep confidenfial all, and shall
not divulge to any other party any, of the Confidential Information of the
Company and its subsidiaries including, but not limited to, Confidential
Information relating to such matters as their finances and operations, the
materials, processes, plans, designs, models, apparatus, equipment and
formulas used in their operations, the names of their customers and such
customers' requirements and the names of their suppliers, except for any such
disclosure (1) which Executive believes in good faith to be required by
applicable law or (ii) is now in the public domain, or hereafter enters the
public domain, through no violation by Executive of his obligations hereunder.
(c) Remedies. In the event of a breach or threatened breach by
Executive of the provisions of this Section 4, the Company shall be entitled
to an injunction restraining Executive from disclosing, in whole or in part,
confidential information described herein, or from rendering any services to
any person, firm, corporation, association or other entity to whom such
confidential information has been disclosed, or is threatened to be disclosed,
or from otherwise violating the provisions of this Section 4. Nothing herein
contained shall be construed as prohibiting the Company or any of its
subsidiaries from pursuing any other remedies available to them for such
breach or threatened breach, including recovery of damages from Executive.
SECTION 5. TERMINATION OF AGREEMENT.
(a) Events of Termination. The Employment Period shall cease and
terminate upon the earliest to occur of the events specified below:
(i) The close of business on the second anniversary of the date
hereof,
(ii) the death of Executive;
(iii)termination of Executive's employment for Cause. For the purpose
of this Agreement, the Company shall have "Cause" to terminate Executive's
employment hereunder upon (A) the failure by Executive to substantially
perform his duties hereunder, other than any such failure resulting from
incapacity due to physical or mental illness, (B) the engaging by Executive in
gross negligence of willful misconduct injurious to the Company, (C) the
violation by Executive of the provisions of Section 4 hereof, or (D) the
conviction of Executive of a felony of a crime involving moral turpitude.
(iv) the election by Executive to terminate his employment hereunder;
(v) the election by the Company to terminate Executive's employment
hereunder; or
(vi) the permanent disability of Executive. For the purpose of this
Agreement, the "permanent disability" of Executive shall mean Executive's
inability, because of his injury, illness, or other incapacity (physical or
mental), to perform the services to the Company contemplated hereby for a
continuous period of 150 days or for 180 days out of a continuous period of
300 days. Such permanent disability shall be deemed to have occurred on the
150th consecutive day or on the 180th day within the specified period,
whichever is applicable.
(b) Compensation Upon Termination. If the Employment Period shall
cease and terminate hereunder:
(i) pursuant to subsection (a)(i), (a)(ii), (a)(iii), (a)(iv) or
(a)(vi) of this Section 5, the Company shall pay to Executive (or his estate
in the case of subsection (a) (ii)) his Base Salary pursuant to Section 3(a)
hereof and the reimbursable expenses incurred under Section 3(b) hereof
through the date of termination. The Company shall have no additional or
further liability to Executive hereunder; or
(ii) pursuant to subsection (a)(v) of this Section 5, the company shall
(A) pay to Executive his Base Salary pursuant to Section 3(a) hereof and the
reimbursable expenses incurred under Section 3(b) hereof through the date of
termination, (B) pay to Executive an amount equal to his then current annual
Base Salary, such amount to be payable in 24 equal sernimonthly installments,
less any amounts required to be withheld by the Company under any applicable
federal, state or local income tax laws or similar laws then in effect, and
(c) continue for a period of one year from the date of termination (but only
if permitted by the applicable plan) all fringe benefits to which Executive is
then entitled pursuant to Section 3(c) hereof (including payment for any
benefits to which Executive would be entitled to receive under the
Consolidated Omnibus Budget Reconciliation Act of 1985, the benefit period
with respect to which shall commence on the date of termination); provided,
however, that the Employment Period shall be deemed to have expired on the
date of termination for the purposes of any vesting period; and provided,
further, that in no event shall Executive be entitled to receive pursuant to
clause (B) above in amount in excess of that to which Executive would have
been entitled had this Agreement not been so terminated.
(c) Effect of Termination. This Agreement and all liabilities and
obligations of the parties hereto hereunder shall cease and terminate
effective upon any termination of the Employment Period permitted by this
Agreement; provided, however, that Executive's obligations under Section 4
hereof shall survive any such termination.
(d) Remedies. Nothing herein contained shall be construed as
prohibiting any party hereto from pursuing any other remedies available to it
for any breach of any provision hereof
SECTION 6. ASSIGNMENT.
This Agreement shall not be assigned by either party hereto, except that
the Company shall have the right to assign its rights hereunder to any direct
or indirect subsidiary of the Company, any successor in interest of the
Company whether by merger, consolidation, purchase of assets or otherwise, and
any person controlling or which controls or is under common control with the
Company, any such subsidiary or any such successor; provided, however, that
any such assignment shall not relieve the Company of any of its obligations
hereunder.
SECTION 7. NOTICES.
All notices requests, demands and other communications hereunder must be
in writing and shall be deemed to have been given if delivered by hand or
mailed by first class, registered mail, return receipt requested, postage and
registry fees prepaid and addressed as follows:
(a) If to the Company:
U.S. Plastic Lumber Corp.
0000 Xxxxxx Xx., Xxxxx 00XX
Xxxx Xxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxxx
Copies to:
Proskauer, Rose, Xxxxx & Xxxxxxxxxx
0000 Xxxxxx Xx., Xxxxx 000 Xxxx
Xxxx Xxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Addresses may be changed by notice in writing signed by the addressee.
SECTIONS. MISCELLANEOUS.
This Agreement embodies the entire understanding between the parties
hereto respecting the subject matter hereof and no change, alteration or
modification hereof may be made except in writing signed by both parties
hereto. Any prior employment agreement between the Company and Executive
shall be deemed to be superseded for all purposes by this Agreement and, upon
the execution and delivery of this Agreement by Executive and the Company, any
such prior employment agreement shall be deemed to be canceled and of no
further force or effect. The headings in this Agreement are for convenience
of reference only and shall not be considered as part of this Agreement or to
lin-dt or otherwise effect the meaning hereof If any provisions of this
Agreement shall be held invalid, illegal or unenforceable in whole or in part,
neither the validity of the remaining part of such provisions nor the validity
of any other provisions of this Agreement shall in any way be affected
thereby. This agreement shall in all respects be governed by and construed in
accordance with the laws of the State of Florida.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
U.S. PLASTIC LUMBER CORP.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
