EXHIBIT 10.18
Employment Agreement
THIS AGREEMENT effective the 1st day of July, 1997 by and between
Thermo-Xxxxx Environmental Corp., a Delaware corporation with offices at 000
Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (the "Corporation") and Xxx X. Xxxxx
residing at 00 Xxxxxx Xxxx Xx. Xxxx Xxxxx XX (the "Employee").
WITNESSETH
WHEREAS, the Corporation, having been organized for the purpose of engaging
in the business of manufacturing, designing, assembling and selling a family of
products used to monitor a wide variety of environmental conditions for clean
rooms, factory emissions, chillers, and other critical data on a real time basis
to assist companies in complying with environmental laws and regulations,
desires to employ Employee to devote full time to the business of the
Corporation; and
WHEREAS, Employee, understanding and accepting the conditions of employment
set forth herein, desires to be so employed.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
set forth herein, and for other good and valuable consideration, the receipt
whereof is hereby duly acknowledged, the parties hereto covenant and agree as
follows:
1. Employment
Corporation agrees to employ Employee and Employee agrees to be so
employed, in the capacity of Chief Executive Officer or for such other duties
and services for the Corporation as may be determined and assigned to him from
time to time by the Board of Directors. Employee shall devote his entire
knowledge and best skills to the furtherance of the business purposes of the
Corporation as shall be entrusted to him under the general rules from time to
time promulgated by the Corporation through its Board of Directors.
2. Term
Employment shall be for a term of three (3) years effective as of July 1,
1997 and terminating on June 30, 2000 unless sooner terminated by the death or
permanent disability of Employee or by written notice given by either party as
hereinafter provided. This Agreement shall be automatically extended for two (2)
additional three (3) year periods unless terminated pursuant to the provisions
of Paragraph 3. Compensation for each period of extension shall be at the same
level as in Year 3 or be increased as determined at the time of extension.
3. Termination
This Agreement and the employment of the Employee may be terminated by
either party with stated cause upon 30 days' written notice given by either
party to the other within 12 months from the date of commencement of employment
hereunder, or upon 90 days' written notice with stated cause thereafter.
Termination for cause shall include, but not necessarily be limited to, the
following:
(A) Employee's failure, or refusal to perform services required of him
by the Corporation to the best of his ability;
(B) Employee's commitment of an offense of moral turpitude or offense
under federal, state or local laws;
(C) Commission by Employee of an act of disloyalty against the
Corporation or the violation by Employee of any provision of this
Agreement.
4. Board of Directors
Employee shall at all times discharge his duties in consultation with and
under the supervision of the Corporation's Board of Directors. In the
performance of his duties, Employee shall make his principal office in such
place as the Corporation's Board of Directors and Employee may from time to time
agree.
5. Compensation
Employee's compensation for services rendered to or on behalf of the
Corporation for each fiscal year for which this Agreement is in effect shall be
$135,000, $145,000 and $155,000, respectively, and shall be paid in bi-weekly
installments. The Board of Directors may, at its sole discretion, elect to
provide additional compensation from time to time based on the operating
performance of the Corporation.
In addition, the Corporation, in each fiscal year, shall provide stock
options to Employee as follows:
If Laminaire Corporation is acquired by Corporation, the employee shall be
entitled to receive the number of options determined using the following
formula:
(C) minus (A plus B)
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Where:
(A) equals Laminaire's 1996 gross profit. If Laminaire is not
acquired (A) will be excluded from the calculation.
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(B) equals the Corporation's fiscal 1997 gross profit.
(C) equals the reported gross profit in the current fiscal year.
For the purposes of calculation, gross profits shall be reduced by product
development costs but shall exclude all impacts associated with the amortization
of purchase adjustments recorded in conformity with Opinions No. 16 and 17 of
the Accounting Principles Board. Such formula shall be adjusted in a similar
manner to give effect to other business combinations effected by the Corporation
during the term of this Agreement.
The options to purchase shares of Corporation's Common Stock shall be
exercisable at a price of $0.50 per share. The shares of stock into which the
options are exercisable shall be registered with the Securities and Exchange
Commission on a Form S-8.
6. Expenses
(A) Reimbursements: The Corporation shall reimburse Employee for all
reasonable and necessary expenses incurred in carrying out his duties under this
Agreement. Employee shall present to the Corporation from time to time an
itemized account of such expenses in any form required by the Corporation. Such
expenses shall be subject to review by the Audit Committee of the Board of
Directors.
(B) Automobile: The Corporation recognizes Employee' s need for an
automobile for business purposes. The Corporation shall, therefore, provide
Employee with automobile expenses, including all related maintenance, repairs,
insurance, and other costs related thereto. The automobile and related costs
shall be comparable to those which Employee's current employer presently
provides to Employee.
(C) Disability: In the event any illness or accident renders Employee
totally disabled, Corporation's obligations under this Agreement shall extend
only to the end of the current contract period and terminate at that time, in a
manner, and under such conditions as the Board of Directors may then determine
in its own discretion at such time. At that time or upon termination of
employment for any reason the corporation will give to the employee the one
million dollar life insurance policy carried on the employee free of all
encumbrances.
(D) Notices: All notices required or permitted to be given under this
Agreement shall be given by certified mail, return receipt requested, to the
parties at the following addresses or to such other addresses as either may
designate in writing to the other party.
If to Corporation Thermo-Xxxxx Environmental Corp., 000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to Employee Xxx X. Xxxxx, 00 Xxxxxx Xxxx Xx., Xxxx Xxxxx N.J.
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7. Certificate of Incorporation and Bylaws
Employee agrees that the Corporation's articles of incorporation and
bylaws, together with all currently effective rules and regulations made
thereunder, are hereby included in and made a part of this Agreement. Employee
further agrees that all new rules and regulations and all resolutions affecting
employees of the Corporation generally shall modify this Agreement as if they
had been included in it and had been made a part of it from the date of its
execution.
8. Restrictions
Employee hereby covenants and agrees that:
(a) he will not personally, make, draw, accept, or endorse any
promissory note, xxxx of exchange, lease, contract, or other obligation for
the payment of money or its equivalent by or in the name of the
Corporation;
(b) he will not pledge the credit of the Corporation in any way
whatsoever except as he may be authorized to do so by the Corporation's
Board of Directors; and
(c) any breach of this Article 8 by him shall entitle the Corporation
to recover from him any expense in which it may become involved as a result
of such prohibited action.
9. Confidential Matters
All confidential information relating to the Corporation's business shall
be kept confidential by Employee and shall not be disclosed by him except to the
extent necessary for performance of his services and obligations as set forth
herein and in all such instances Employee will take reasonable steps to
safeguard the confidentiality of all such information.
Employee acknowledges his understanding that in the performance of his
duties and obligations hereunder he may obtain knowledge of "confidential
information" as hereinafter defined, relating to the business of the
Corporation. As used herein, "confidential information" means any information
(including, without limitation, any formula, pattern, device, plan, process or
compilation of information) which (i) is, or is designed to be, used in the
business of the Corporation or results from its research or development
activities; (ii) is private or confidential in that it is not generally known or
available to the public; and (iii) gives the Corporation an opportunity to
obtain an advantage over competitors who do not know or use it.
Employee shall not, without the prior written consent of the Corporation,
either during the term of this Agreement or after any termination thereof:
(a) use or disclose any such confidential information outside the
Corporation;
(b) publish any writing with respect thereto; or
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(c) except in the performance of his duties hereunder, remove or aid
in the removal of any such confidential information or any property or
material relating thereto from the Corporation.
10. Inventions
Employee shall promptly disclose to the Corporation any and all inventions.
improvements, machines, appliances, processes, products, or the like (all of
which are referred to herein as "inventions") which Employee may invent,
conceive, produce, or reduce to practice, either solely or jointly with others,
at any time, in furtherance or in the performance of his duties as set forth in
this Agreement.
Any and all such inventions which in any way relate to the products
manufactured, sold, or used by the Corporation, or to any methods, processes, or
apparatus used in connection with the production of such goods or materials, or
in either case which are or may be or may become capable of use in the business
of the Corporation, shall at all times and for all purposes be regarded as
acquired and held by Employee in a fiduciary capacity and solely for the benefit
of the Corporation.
With respect to all such inventions, Employee shall:
(a) treat all information with respect thereto as confidential
information within the meaning of and subject to Article 9 of this
Agreement;
(b) Keep complete and accurate records thereof which records shall be
the property of the Corporation;
(c) execute any application for letters patent of the United States
and of any and all other countries covering such inventions, and give the
Corporation, its attorneys and counsel all reasonable and requested
assistance in preparing such application;
(d) from time to time, upon the request and at the expense of the
Corporation, but without charge for services beyond the payments herein
provided for, execute all assignments or other instruments required to
transfer and assign to the Corporation (or as the Corporation may otherwise
direct)) all inventions and all patents and applications for patents
covering such inventions or otherwise required to protect the rights and
interests of the Corporation;
(e) testify in any proceedings or litigation as to all such
inventions; and
(f) in case the Corporation shall desire to keep secret any such
invention, or shall for any reason decide not to have letters patent
applied for thereon, refrain from applying for such letters patent thereon.
No termination of employment of the Employee by the Corporation or of this
Agreement shall release the Employee or his heirs or legal representatives from
complying with the foregoing
obligations as to such inventions. To that extent, the terms of this Article 10
shall survive this Agreement.
11. Governing Law
This Agreement shall be construed and enforced in accordance with the laws
of the State of New Jersey.
12. Entire Contract
This Agreement constitutes the entire understanding and agreement between
the Corporation and the Employee with regard to all matters referred to herein.
There are no other agreements, conditions or representations, oral or written,
express or implied, with regard thereto. This Agreement may be amended only in
writing signed by both parties.
13. Non-Waiver
A day or failure by either party to exercise a right under this Agreement,
or a partial or single exercise of that right, shall not constitute a waiver of
that or any other right.
14. Assignment
This Agreement shall not be assigned by Employee except that any benefits
which inure at any time to his estate or personal representative shall be
transferable as a matter of right to such entity or entities. The Corporation
shall have the right to transfer and assign this Agreement and its rights
hereunder in its entirety in its sole discretion and, upon doing so, all of the
rights and obligations of the Corporation hereunder shall thereafter inure and
apply to its assignees and successors on condition such succeeding entity
assumes in writing at the time of any such assignment all the obligations of
Corporation hereunder.
15. Enforceability
The invalidity or unenforceability of any provision, term, or condition
hereof shall in no way effect the validity or enforceability of any other
provision or of this Agreement or of the Agreement in its entirety.
16. Restrictive Covenant
In the event that the employment of the Employee is terminated by any party
for any reason, the Employee for a period of six months from the date of the
termination shall be and hereby agrees to be prohibited from directly or
indirectly, either as a principal, agent, manager, employee, owner, partner,
stockholder, director, or officer of a corporation or otherwise from engaging or
becoming interested in , financially or otherwise, in any business, trade, or
occupation similar to or in competition with the business of the Employer within
a radius of one hundred (100) miles of the main office or any branch office of
the Corporation then existing at that time. The Corporation
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shall have the right to assign this restrictive covenant in the event that the
Corporation desires at a date subsequent hereto to sell or otherwise transfer
all of the stock or other assets of the Corporation, and Employee agrees to
remain bound by the terms and conditions of this restrictive covenant to any and
all subsequent purchasers of the stock and/or assets of the Corporation.
17. Headings
Headings in this Agreement are for the convenience of the parties hereto
only and shall not be used to interpret or construe its provisions.
18. Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original of which together shall constitute one and the same
agreement.
19. Binding Effect
The provisions of this Agreement shall be binding upon and inure to the
benefit of both parties and their respective successors and assigns.
IN WITNESS WHEREOF, Corporation has, by its appropriate officers, day
signed and sealed, and Employee has signed this Agreement.
THERMO-XXXXX ENVIRONMENTAL CORP
BY: ____________________________
ATTEST:
SECRETARY
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