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Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), between ENVIRONMENTAL
SAFEGUARDS, INC., a Nevada corporation, having its principal office and place
of business in Houston, Texas (hereinafter referred to as the "Company") and
XXXXX X. XXXXXXX, a resident of Xxxxxx County, Texas (hereinafter referred to
as the "Employee").
R E C I T A L S:
WHEREAS, the Company is engaged in the development, production and
sale of environmental remediation technologies and services.; and
WHEREAS, the Company desires to employ the Employee in the capacity of
the President and Chief Executive Officer of the Company to manage the
day-to-day operations of the Company's business and its expansion efforts and
the Employee desires to be so employed under this Agreement, subject to the
terms, conditions and covenants contained herein.
CONDITIONS OF AGREEMENT
I.
CONSIDERATION
This Agreement is executed and delivered for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged.
The special training and knowledge acquired or to be acquired by the Employee
during employment are material factors relating to the employment of the
Employee without which the employment relationship would not be commenced. The
parties hereto acknowledge and agree that this Agreement is necessary to
protect the Company's legitimate interests, including, but not limited to, its
business goodwill, trade secrets and other confidential or proprietary
information.
II.
TERM OF EMPLOYMENT
2.1 Term. The Company hereby employs the Employee, and the
Employee hereby accepts employment with the Company for a term of three (3 )
years ("Initial Term") which shall commence on the 1st day of April, 1997 and
shall continue for the entire Initial Term, subject to earlier termination as
provided in this Agreement.
2.2 Extension of Initial Term. After the expiration of the
Initial Term, this Agreement will be automatically extended for additional and
successive one (1) year periods, unless either party gives written notice to
the other at least 30 days prior to the expiration of the Initial Term, or any
one year renewal term, that such automatic extension shall not occur, in which
event Employee's employment shall terminate upon the expiration of the Initial
Term, or such renewal term, whatever the case may be. The terms and conditions
then in effect at the end of the Initial Term, or any
EMPLOYMENT AGREEMENT
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renewal term, shall control during the succeeding renewal term unless otherwise
set forth herein or mutually agreed to in writing.
III.
DUTIES OF EMPLOYEE
3.1 Duties. The Employee is hereby employed as President and
Chief Executive Officer of the Company. The Employee's responsibilities for
such office shall be as set forth in the Bylaws of the Company including
managing the day-to-day operations of the Company's business and its ongoing
expansion efforts. Generally, in his capacity as President and Chief Executive
Officer of the Company, the Employee will be primarily responsible for the
general supervision, direction, and control of the business and officers of the
Company, subject to the control of the Board of Directors. In the discharge of
such duties and throughout Employee's employment with Company, Employee shall,
with respect to conduct involving certain matters including, but not limited
to, conflicts of interest and usurpation of corporate authority, comply with
(i) all requirements imposed by the Company upon similarly situated employees
of the Company; (ii) standards generally accepted within the business community
regarding similarly situated persons; and (iii) any relevant legal authority.
Should the Company determine at a regularly or specially called meeting of the
Board of Directors, held with proper notice, that Employees performance is in
question, the Employee will be notified in writing and provided 30 days to
present a plan to conform to the requests of the Company.
3.2 Change in Duties. The duties of Employee shall be those
assigned to him from time to time by the Company and may be changed by Company
from time to time without resulting in rescission or termination of this
Agreement.
3.3 Engaging in Other Employment. The Employee shall devote such
productive time, ability, and attention to the business of the Company during
the term of this Agreement as is required to fulfill his duties and
responsibilities as set forth in Section 3.1 above. During the period of
employment, the Employee further agrees not to (i) solely or jointly with
others undertake or join any planning for or organization of any business
activity competitive with the business activities of the Company, and (ii)
directly or indirectly, engage or participate in any other activities in
conflict with the best interest of the Company. Notwithstanding anything
herein contained to the contrary, the Employee shall be able to devote such
time as he deems reasonably necessary to his own private investments and
affairs, so long as the performance of the Employee hereunder is not impaired
and the covenants contained herein are not violated.
IV.
COMPENSATION TO EMPLOYEE
4.1. Yearly Salary. During the Initial Term of this Agreement, the
Employee shall be entitled to a yearly salary of $125,000.00, less all payroll
deductions and applicable taxes. The time of payment for each installment
shall be consistent with the general business practices of the Company. Such
salary shall be reviewed annually and shall remain fixed or be increased to the
extent deemed appropriate by the Board of Directors of the Company.
EMPLOYMENT AGREEMENT
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4.2 Other Compensation. The Employee understands and agrees that
any additional compensation to the Employee (whether a bonus or other form of
additional compensation) shall rest in the sole discretion of the Board of
Directors (or any Compensation Committee consisting of members of the Board of
Directors) and shall be based upon the performance of the Company as well as
participation in all benefit plans maintained by the Company for salaried
employees.
4.3 Review. The Employee, after the Initial Term, if still
employed by the Company, shall be reviewed at such times as are consistent with
the Company's general personnel policies.
4.4 Fringe Benefits-Employee Benefits Plan. The Employee shall be
entitled to participate on an equitable basis, as the Board of Directors may,
in the exercise of its discretion deem appropriate, in any stock option plan
and any additional year-end or other profit sharing or incentive or deferred
compensation arrangements, whether provided for in stock, cash or otherwise,
which the Company may distribute to or provide for officers and employees
generally, or for a limited or selected group, as well as under any other
plans, benefits, customs or practices now or hereinafter made available to
other executives of the Company, including as examples only, group life
insurance and medical insurance. The Company may terminate, amend or modify
any or all such plans at any time and may choose not to adopt additional plans.
The Employee's rights under any benefits plans now in force or later adopted by
the Company shall be governed solely by their terms.
4.5 Expense Account. The Employee is authorized to incur
reasonable and necessary expenses directly associated with the promotion of the
interests of the Company, and the performance of his assignments, including
expenditures for entertainment and travel. The Company will reimburse the
Employee from time to time for all such business expenses, upon the Employee's
presenting to the Company such information and support as prescribed by Company
policy.
4.6 Holidays and Vacations. The Employee shall be entitled to at
least three (3) weeks of paid vacation for each year during the term hereof.
Additionally, the Employee shall be entitled to such fully paid holidays as are
normally taken by other full time employees of businesses similar to the
Company, and such other holidays which may be particular to the Employee's
religious preference.
V.
LIFE INSURANCE
At any time during the term of this Agreement, the Company shall have
the right to insure the Employee's life for the Company's sole benefit, and to
determine the amount and type of insurance and type of policy. The Company
shall be required to pay all premiums due on such policies. The Employee shall
cooperate with the Company in taking out insurance by submitting to physical
examination(s), by supplying all information required by the insurance company,
and by executing any and all other necessary documents. The Employee shall
incur no financial obligation by executing the required documents and shall
have no interest in any such policies, except as otherwise provided herein.
EMPLOYMENT AGREEMENT
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VI.
TERMINATION OF EMPLOYMENT
6.1 Termination by the Employee Without Cause. If the employment
of the Employee is terminated by the Employee for any reason other than as set
forth in the other paragraphs of this Article VI (such termination being herein
defined as "without cause"), the Employee shall give the Company thirty (30)
days written notice of termination; provided, however, that the Employee shall
not be entitled to terminate his employment with the Company during the Initial
Term without cause. Except as otherwise provided for herein, any such
termination of the Employee's employment for any reason whatsoever, whether
voluntary or involuntary, shall not prejudice any other remedy to which any
party may be entitled either at law, in equity, or under this Agreement.
6.2 Termination for Cause by the Company. The Company may "for
cause" terminate the employment of the Employee at any time (after giving
Employee notice to cure pursuant to Paragraph 3.1, if such termination is the
result of violations of Paragraph 6.2A or 6.2B below) with 30 days notice..
"For cause" for the purpose of this Agreement is defined as:
A. The willful and continued failure to substantially perform his
duties as set forth in this Agreement;
B. The breach by the Employee of any of the provisions of this
Agreement or of the covenants contained in Article VII of this Agreement; or
C. If the Employee is convicted of any crime involving moral
turpitude, including without limitation, fraud or embezzlement or similar acts
of dishonesty toward the Company.
If the Employee is terminated for cause as hereinabove defined, the
Company shall pay to the Employee only that compensation specified in Paragraph
6.3 below.
6.3 Effect of Termination on Compensation. In the event of the
termination of employment by the Company or the Employee for any reason
whatsoever, including resignation or voluntary termination by the Employee, the
Employee shall be entitled to the compensation earned by him including all
compensation specified in Article IV herein, prior to the date of termination
as provided for in this Agreement, computed pro rata up to and including the
date of such termination of employment. Upon such payment to the Employee, the
Company shall be relieved of further obligation as it relates to this
Agreement; however, the Employee shall still be bound by the covenants and
restrictions contained in Article VII below.
EMPLOYMENT AGREEMENT
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VII.
RESTRICTIVE COVENANTS
7.1 Definition. The Employee hereby acknowledges that during the
course of his employment with the Company, he will have access to and will
become familiar with various trade secrets and other proprietary and
confidential information which are owned by the Company and which are used in
the operation of the Company's business. "Trade secrets and other proprietary
and confidential information" consist of, for example, and not intending to be
inclusive, (i) methods of doing business; (ii) financial information,
consisting of financial cost, and sales data and other information; (iii)
personnel information (iv) lists of customers and accounts, contracts, sales
information, pricing list, vendor and supplier list of the Company; (v) other
information of a confidential nature which must remain confidential for the
continuing success of the Company; and (vi) such other information concerning
the business of the Company and the Company's goodwill.
7.2 Non-Disclosure and Confidentiality Covenants. The Employee
acknowledges that the Company's trade secrets and other proprietary and
confidential information, as they may exist from time to time, are valuable,
special and unique assets of the Company's business. Additionally, Employee
acknowledges that the business goodwill and business contacts of the Company
are the sole property of the Company and are among the Company's most valuable
business property. Therefore, in consideration of the mutual promises herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and to protect the foregoing
valuable property of the Company, the Employee expressly covenants and agrees
as follows:
Except as required in the course of his employment with the Company,
the Employee will not, during and after the termination of his
employment:
(1) Disclose, directly or indirectly, the Company's trade
secrets and other proprietary and confidential information, or any
part thereof, to any person, firm, corporation, association or other
entity for any reason or purpose whatsoever; or
(2) Directly or indirectly use the Company's trade
secrets and other proprietary and confidential information, or any
part thereof, for his own purpose or for his own benefit in any
activity of any nature whatsoever.
7.3 Return of Company's Property. The Employee covenants and
agrees that, upon the request of the Company or upon termination of employment,
the Employee shall turn over to the Company all files, records, documents,
drawings, presentations, specifications, equipment, disks or other computer
media, data, computer printouts, records, written materials and similar items
relating to the business of the Company, and any other property of the Company
in his possession or under his control. In the event the Employee fails to
return the Company's property when required or requested to do so, the Company
may, in addition to any other remedy provided by law, withhold any amounts due
the Employee until full compliance with this Paragraph 7.3.
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7.4 Covenant Not to Compete. So long as the Employee is employed
by the Company and for a period of eighteen (18) months after either (i) the
voluntary termination of employment by Employee or (ii) the termination of the
Employee by the Company for cause, as set forth in Section 6.2 hereof, the
Employee specifically agrees that he will not, for himself, on behalf of, or in
conjunction with any person, firm, corporation or entity, other than the
Company (either as principal, employee, shareholder, member, director, partner,
consultant, owner or part-owner of any corporation, partnership or any type of
business entity) anywhere in any county in which the Company is doing business
at the time of termination, directly or indirectly, own, manage, operate,
control, be employed by, participate in, or be connected in any manner with the
ownership, management, operation, or control of any business similar to the
type of business conducted by the Company at the time of termination of the
Employee's employment.
7.5 Employee's Acknowledgments and Agreements. The Employee
acknowledges and agrees that:
(1) Due to the nature of the Company's business, the
foregoing covenants place no greater restraint upon the Employee than
is reasonably necessary to protect the business and goodwill of the
Company;
(2) These covenants protect a legitimate interest of the
Company and do not serve solely to limit the Company's future
competition;
(3) This Agreement is not an invalid or unreasonable
restraint of trade;
(4) A breach of these covenants by the Employee would
cause irreparable damage to the Company;
(5) These covenants will not preclude the Employee from
becoming gainfully employed following termination of employment with
the Company;
(6) These covenants are reasonable in scope and are
reasonably necessary to protect the Company's business and goodwill
and valuable and extensive trade which the Company has established
through its own expense and effort;
(7) The signing of this Agreement is necessary for the
Employee's employment; and
(8) He has carefully read and considered all provisions
of this Agreement and that all of the restrictions set forth are fair
and reasonable and are reasonably required for the protection of the
interests of the Company.
7.6 Remedies, Injunction. In the event of the Employee's actual
or threatened breach of any provisions of this Agreement, the Employee agrees
that the Company shall be entitled to a temporary restraining order,
preliminary injunction and/or permanent injunction restraining and enjoining
the Employee from violating the provisions herein. Nothing in this Agreement
shall be
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construed to prohibit the Company from pursuing any other available remedies
for such breach or threatened breach, including the recovery of damages from
the Employee. The Employee further agrees that for the purpose of any such
injunction proceeding, it shall be presumed that the Company's legal remedies
would be inadequate and that the Company would suffer irreparable harm as a
result of the Employee's violation of the provisions of this Agreement. In any
proceeding brought by the Company to enforce the provisions of this Agreement,
no other matter relating to the terms of any claim or cause of action of the
Employee against the Company will be defense thereto. The foregoing remedy
provisions are subject to the provisions of Section 15.15 of the Texas Business
and Commerce Code, as amended (the "Code"), which Code provisions shall control
in the event of any conflict between the provisions hereof and the Code or any
other law in effect relevant and applicable hereto.
7.7 Severability. In the event that any of the provisions of this
Agreement are held to be invalid or unenforceable in whole or in part, those
provisions to the extent enforceable and all other provisions shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included in this Agreement. In the event that
any provision relating to the time period or scope of a restriction shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or scope such court deems reasonable and enforceable, then the time period or
scope of the restriction deemed reasonable and enforceable by the court shall
become and shall thereafter be the maximum time period or the applicable scope
of the restriction. The Employee further agrees that such covenants and/or any
portion thereof are severable, separate and independent, and should any
specific restriction or the application thereof, to any person, firm,
corporation, or situation be held to be invalid, that holding shall not affect
the remainder of such provisions or covenants.
VIII.
GENERAL PROVISIONS
8.1 Notices. Any notices to be given hereunder by either party to
the other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses set forth below, but
each party may change their address by written notice in accordance with this
Paragraph 8.1. Notices delivered personally shall be deemed communicated as of
actual receipt; mailed notices shall be deemed communicated as of three (3)
days after mailing.
If to Company: Environmental Safeguards, Inc.
0000 Xxxxx Xxxx Xxxx,Xxxxx 000
Xxxxxxx, Xxxxx, 00000
If to Employee: Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
EMPLOYMENT AGREEMENT
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8.2 Law Governing Agreement and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of Texas.
This Agreement is executed in Xxxxxx County, Texas. Venue shall be in Xxxxxx
County, Texas for any legal proceeding to enforce the terms, conditions or
covenants contained herein.
8.3 Attorneys' Fees and Costs. If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the
prevailing parties shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which he may be
entitled.
8.4 Contract Terms to be Exclusive. This Agreement contains the
sole and entire agreement between the parties and shall supersede any and all
other agreements between the parties with respect to the Employee's employment.
The parties acknowledge and agree that neither of them has made any
representation with respect to the subject matter of this Agreement or any
other agreement executed between them or any representations inducing the
execution and delivery hereof or any other agreement executed between them
except such representations as are specifically set forth herein and each of
the parties hereto acknowledges that he or it has relied on his or its own
judgment in entering into the same. The parties hereto further acknowledge
that any statements or representations that may have heretofore been made by
either of them to the other are void and of no effect and that neither of them
has relied thereon in connection with his or its dealings with the other.
8.5 Waiver or Modification Ineffective Unless in Writing. It is
further agreed that no waiver or modification of this Agreement or of any
covenant, condition, or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and that no
evidence of any waiver or modification shall be offered or received in evidence
in any proceeding or litigation between the parties hereto arising out of or
affecting this Agreement, or the rights or obligations of any party hereunder,
unless such waiver or modification is in writing, duly executed as aforesaid,
and the parties further agree that the provisions of this paragraph may not be
waived as herein set forth.
8.6 Invalidity of Contract. Should any provision(s) of this
Agreement be declared invalid or unenforceable by a court of competent
jurisdiction, it shall be severed or modified and the remainder of this
Agreement shall be enforced in total. Additionally, if the Employee claims
that any provision or covenant contained herein is invalid or unenforceable, he
nevertheless agrees to comply with such provision or covenant as written until
a court of competent jurisdiction determines the enforceability or validity of
such provision or covenant, or limits the scope thereof, and further agrees to
be liable for any and all damages to the Company pending such determination by
the court.
8.7 Assignment. The rights and benefits of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company. The rights of the Employee hereunder are personal and
nontransferable except that the rights and benefits hereof shall inure to the
benefit of the heirs, executors and legal representatives of the Employee.
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8.8 Gender. In all cases where a feminine or masculine pronoun is
used it shall be deemed to include the other and as may be applicable to the
instant matter.
IN WITNESS WHEREOF, this Agreement has been executed in Houston,
Xxxxxx County, Texas, as of the 1st day of April, 1997.
COMPANY:
ENVIRONMENTAL SAFEGUARDS, INC.
BY: /S/ XXXXX X. XXXXXXX, PRESIDENT
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XXXXX X. XXXXXXX, PRESIDENT
EMPLOYEE:
/S/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX
ACKNOWLEDGED AND
WITNESSED BY:
/S/ XXXXX XXXXX
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XXXXX XXXXX, DIRECTOR
EMPLOYMENT AGREEMENT
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