Exhibit 2(v)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of August 1, 1999, between Cleaning Ideas
Corp., a Nevada corporation, with its principal office located c/o Enviro-Clean
of America, Inc. 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (the "Company") and
Xxxxxxx Xxxxx, an individual residing at 0 Xxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxx
00000 ("Xxxxx").
WHEREAS, the Company wishes to employ Xxxxx as Chief Operating Officer of
the Company and the Company desires to ensure the continued availability to the
Company of Xxxxx'x services in such capacity, and Xxxxx wishes to accept such
employment and is willing to render such services, all upon and subject to the
terms and conditions contained in this Agreement.
Accordingly, the parties agree as follows:
1. Employment
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The Company hereby employs Xxxxx as the Company's Chief Operating Officer
on the terms and conditions contained herein and Xxxxx agrees to such terms and
conditions of employment. Xxxxx shall devote such amount of time to the affairs
of the Company as shall be mutually agreed between Xxxxx and the Company.
2. Term of Employment
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Unless earlier terminated in accordance herewith, the term of Xxxxx'x
employment hereunder shall be for a period of five years commencing on August 1,
1999, and ending on August 1, 2004. The term of employment may be renewed beyond
August 1, 2004 upon the mutual agreement of the Company and Xxxxx for such
additional period and on such additional terms as the parties may agree at a
future date.
3. Duties
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(a) Xxxxx shall serve the Company as Chief Operating Officer and shall
perform the duties and responsibilities set by the Board of Directors for this
position from time to time, and Xxxxx shall at all times comply with the
employment policies established by the Board of Directors of the Company. During
his employment by the Company, Xxxxx shall, except as set forth in Section 1(b),
above, devote his full time and efforts to the Company.
The duties of the Chief Operating Officer as set by the Company upon
its approval of this Employment Agreement, shall include all day-to-day
management of the operations of the Company and such other duties as shall be
assigned from time to time by the Board of Directors of the Company.
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4. Compensation and Benefits
-------------------------
As full compensation to Xxxxx for the performance of his services and his
acceptance of the responsibilities described herein, the Company agrees to pay
Xxxxx the following compensation and other benefits:
(a) Base Salary. A total annual base salary of Fifteen Thousand
Dollars ($15,000), payable in accordance with the Company's usual payroll
policies and procedures.
(b) Annual Bonus. In addition to his base salary, Xxxxx shall be
eligible for an annual bonus for each year during the terms of this Agreement,
which bonus shall be determined by the Board of Directors of the Company, in its
discretion.
(c) Other Benefits. Xxxxx will also be eligible to receive continued
family health insurance coverage at the identical levels and under the policies
being taken over by the Company from Cleaning Ideas, Inc. in connection with its
merger into the Company, and an automobile lease allowance as set forth in
Schedule A hereto, together with such other benefits as are made available
generally to the Company's executive management.
(d) Travel and Entertainment Expenses. The Company shall reimburse
Xxxxx for his travel and entertainment expenses incurred in connection with the
performance of his duties under this Agreement, provided that such expenses are
incurred in accordance with Company policies, are reasonable in type and amount
and that Xxxxx properly accounts for such expenses to the Company in accordance
with the Company's practices.
5. Confidentiality: Intellectual Property; Non-Compete.
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Xxxxx, in order to induce the Company to enter into this Agreement, hereby
agrees as follows:
(a) Xxxxx will keep confidential and not use, divulge or otherwise reveal
during the term of his employment or after termination thereof, any trade
secrets or other confidential information relating to the business or financial
affairs of the Company.
(b) The Company shall require that all of its employees sign an
intellectual property agreement, requiring that employees preserve and protect
as property of the Company the confidential, proprietary, technical and business
information of the Company. Xxxxx agrees to execute such an agreement and to
comply with its terms.
(c) All papers, books and records, financial documents, computer files and
customer lists relating to the business and affairs of the Company and all
copies thereof, shall be the sole and exclusive property of the Company. Xxxxx
agrees prior to termination of his employment by the Company to turn over to the
Company all such documents which may be in Xxxxx'x possession or under his
control.
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(d) During the term of this Agreement and for a period beginning on the
date that Xxxxx'x employment is terminated, regardless of the reason for the
termination, and ending Twenty-Four (24) months after the date on which Xxxxx'x
employment is terminated, Xxxxx shall not, without the prior written consent of
the Company or any successor to the Company, compete, directly or indirectly,
with the Company or any successor to the Company in any Competing Business,
unless Xxxxx is terminated by the Company without cause (as defined in Section
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7(b) herein) in which case Xxxxx will not be subject to any noncompetition
obligations and the terms of this paragraph shall not apply. For purposes of
this agreement, a Competing Business is any business located in North America
which engages in the marketing, distribution and/or sale of janitorial, sanitary
and cleaning supplies, whether or not manufactured by such company.
(e) During the term of this Agreement and for a period beginning on the
date that Xxxxx'x employment is terminated, regardless of the reason for the
termination, and ending Twenty-Four (24) months after the date on which Xxxxx'x
employment is terminated, Xxxxx shall not, without the prior written consent of
the Company or any successor to the Company, directly or indirectly, for himself
or another person, induce or attempt to induce any client or customer of the
Company or any successor to terminate his or her relationship with any of those
entities, unless Xxxxx is terminated by the Company without cause (as defined in
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Section 7(b) herein) in which case Xxxxx will not be subject to any
noncompetition obligations and the terms of this paragraph shall not apply.
(f) Xxxxx agrees that any breach or threatened breach of the provisions of
this Section 6 will cause irreparable damage to the Company and that money
damages will not necessarily provide an adequate remedy to the Company. Thus,
the parties agree that the Company, in addition to their remedies at law, shall
have the right and remedy to have the provisions of this Section 6 specifically
enforced by any court having jurisdiction.
(g) The provisions of Subsections 5(d) and 5(e) hereof shall terminate and
be of no further force and effect if there is an Event of Default under the
Secured Notes from Enviro-Clean to Xxxxxxx Xxxxx and Xxxxxxx Xxxxx dated the
date hereof and Xxxxxxx Xxxxx and Xxxxxxx Xxxxx exercise their option to
purchase the Company as provided therein.
6. Termination of Employment
-------------------------
(a) Xxxxx'x Voluntary Termination
-----------------------------
In the event that Xxxxx voluntarily terminates his employment with the
Company during the term of this Agreement, Xxxxx shall have no right to any
further salary, bonus, stock options, employee benefits or any other
compensation from the Company; provided, however, that nothing in this Section
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6(a) shall be construed to limit Xxxxx'x rights to any compensation of any kind
earned prior to the date of such termination.
(b) Termination For Cause
---------------------
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The Company may terminate Xxxxx'x employment pursuant to the terms of this
Agreement at any time for cause by giving written notice to Xxxxx, in accordance
with Section 9(g), below, and such termination shall be effective in accordance
with such Section 9(g). Upon any such termination for cause, Xxxxx shall have no
right to any further compensation, stock options employee benefits or any other
compensation from the Company.
For purpose of this Section 6(b), "cause" shall mean that (i) Xxxxx is
convicted with respect to the commission of a crime involving moral turpitude;
(ii) Xxxxx has been guilty of gross or willful misconduct in connection with his
duties hereunder or (iii) Xxxxx has failed to follow the lawful, material
instructions of the Company's Board of Directors.
(c) Termination Without Cause
-------------------------
Throughout the term of his employment with the Company, Xxxxx shall remain
an employee at will, and his employment may be terminated for any reason by the
Company at any time. If Xxxxx is terminated by the Company without cause he
shall be entitled to certain minimum severance pay ("Minimum Severance"), with
any additional severance pay above the Minimum Severance to be solely within the
discretion of senior management and/or the Board of Directors. In the event of
Xxxxx'x voluntary termination under Section 6(a) above, or his termination for
cause under Section 6(b) above, Xxxxx shall be entitled to no Minimum Severance.
Xxxxx shall receive the following Minimum Severance, under the terms set forth
above:
(i) Termination without cause after commencement of his employment: six
weeks salary and benefits;
(ii) Termination without cause after twelve (12) months of employment: two
months salary and benefits;
(iii) For every six (6) month period beyond the initial twelve (12) months
he shall be employed by the Company, Xxxxx shall be entitled to an
additional two (2) weeks of salary and benefits as Minimum Severance
in the event of termination without cause; up to a maximum Minimum
Severance of twelve months salary and benefits.
(d) Death or Disability
-------------------
This Agreement and the obligations of the Company hereunder will terminate
upon the death of Xxxxx.
In the event of Xxxxx'x permanent disability, the Company may terminate
this Agreement. For purposes of this Section 6(c), permanent disability shall
mean that for a period of 90 days in any 365-day period Xxxxx is incapable of
substantially fulfilling his duties as set forth in Section 3 above because of
physical, mental or emotional incapacity resulting from injury, sickness or
disease.
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7. Representations and Warranties
------------------------------
Xxxxx hereby represents and warrants to the Company that his entering into
this Agreement, and the obligations and duties undertaken by him hereunder, will
not conflict with constitute a breach of, or otherwise violate the terms of, any
other agreement to which he is a party.
Xxxxx hereby agrees to indemnify the Company for any losses, costs or other
expenses or damages incurred by the Company in the event that Xxxxx has breached
this representation.
8. Assignment
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This Agreement and any rights (including compensation) hereunder shall not
be assigned or transferred by Xxxxx to any other person. The Company, however,
shall have the right to assign its rights hereunder to any affiliate of the
Company.
9. Miscellaneous
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(a) All payments provided for in this Agreement shall be paid by check
from the Company's general funds. Any withholding and/or any other payroll taxes
with respect to any payments provided for in this Agreement shall be deducted by
the Company as appropriate and as may be required by law.
(b) If any provision of this Agreement shall, for any reason, be judged by
any court of competent jurisdiction to be invalid or unenforceable, such
judgment shall not affect, impair or invalidate the remainder of this Agreement.
(c) This Agreement constitutes the entire understanding between the
parties and supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof.
(d) This Agreement may be amended, modified, superseded or cancelled, and
any of the terms, covenants or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case of a waiver of
any right or benefits provided hereunder, by the party waiving compliance.
(e) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York and the parties hereto consent
to the jurisdiction of the Courts located in the State of New York to resolve
any disputes which may arise under this Agreement.
(f) No delay or omission or failure to exercise any right or remedy
provided for herein shall be deemed a waiver thereof or acquiescence in the
event giving rise to such right or remedy, and every such right and remedy may
be exercised from time to time and so often as may be deemed expedient by the
party exercising such right or remedy.
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(g) All notices given pursuant to the provisions of this Agreement shall
be in writing and shall be sent by certified mail, postage prepaid, or
recognized overnight courier service, or delivered by hand or by fax, shall be
effective upon the earlier of (i) two (2) days from the date deposited with the
mail or overnight courier service or (ii) actual receipt, and shall be sent to
the parties at the following addresses:
If to the Company: Cleaning Ideas Corp.
c/o Enviro-Clean of America, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, President
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxxx, Ocko & Monk, LLP
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
If to Xxxxx: Xxxxxxx Xxxxx
0 Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
(h) The parties to this agreement expressly agree that any and all
disputes, which may arise out of or as a result of this agreement, shall be
submitted to binding Arbitration in accordance with the Rules set forth by The
American Arbitration Association. The parties further agree to be bound by the
result of the arbitration.
(i) The Company shall indemnify Xxxxx and hold him harmless to the fullest
extent permitted by the By-Laws of the Company and Nevada law, for any acts or
decisions made by him in good faith while performing services for the Company as
an employee and/or agent of the Company, and in addition thereto, shall use its
best efforts to obtain insurance coverage for him under any insurance policy now
in force or hereinafter obtained during the term of this Agreement covering the
officers and directors of the Company against lawsuits as Xxxxx and/or agent of
the Company against lawsuits as Xxxxx and/or agent of Company, to the extent it
is deemed advisable by the Company's Board of Directors to obtain such insurance
for the Company's officers and directors and such insurance can be obtained at a
cost deemed reasonable by the Board. The Company will pay all expenses,
including attorneys' fees, actually and necessarily incurred by the Company or
Xxxxx in connection with the defense of any such act, suit or preceding and in
connection with any appeal thereon, including costs of court settlement.
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IN WITNESS WHEREOF, the parties have signed this Agreement on the dates set
forth below, with effect as of the date first above written.
CLEANING IDEAS CORP.
By: _________________________ _________________________
Xxxxxxx Xxxxxx Xxxxxxx Xxxxx
Chairman
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