EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and effective as of
November 11, 1998 between OMEGA METALS, INC., a Florida corporation (the
"Corporation"), and XXXX XXXXXXXX, an individual ("Executive").
WHEREAS, Executive has been in the employ of the Corporation as its
Vice President-Marketing; and
WHEREAS, the Corporation desires to assure the continuation of
Executive's services in connection with its business and that of its
subsidiaries and affiliates;
THEREFORE, in consideration of the premises and covenants herein set
forth, it is agreed as follows:
1. Employment. Corporation hereby employs Executive and Executive
accepts such employment on the terms and conditions set forth herein.
1.1 Executive covenants to perform in good faith his
employment duties as outlined herein, devoting his full productive time,
energies and abilities to the proper and efficient management of the business of
the Corporation and its subsidiaries and affiliates and for their exclusive
benefit.
1.2 Executive shall not, without the prior written consent of
the Corporation, directly or indirectly, during the term of this Agreement: (I)
render services of business, professional or commercial nature to any other
person or entity, whether for compensation or otherwise, similar or relating to
the business of the Corporation or its subsidiaries and affiliates, or (ii)
engage in any activity competitive with or adverse to the Corporation's business
or welfare, whether alone, as a partner or member, or as an officer, director,
Executive or 5% or greater shareholder of a corporation.
2. Term of Employment. Subject to the provisions set forth herein, the
term of Executive's employment hereunder shall continue for two (2) years.
3. Duties. Executive shall be employed and perform duties similar to
those that he is now performing on behalf of Corporation, or such other
activities within his area of expertise which the Corporation determines.
1
4. Compensation. For all services he may render to the Corporation
during the term of this Agreement, including services as officer, director or
member of any committee of the Board of Directors of the Corporation and its
subsidiaries, Executive shall receive the following compensation:
4.1 Executive shall receive a base salary at the rate of
$125,000 per year.
4.2 (a) The Corporation agrees to pay to the Executive a
profit participation (his "Profit Participation") equal to ten percent (10%) of
the net profits of the Corporation in excess of $1,200,000 ("Net Profits") for
each fiscal year of the Corporation during the term of this Agreement.
The Profit Participation with respect to a fiscal year shall be paid to
the Executive within 120 days after the end of the fiscal year.
(b) The Net Profits of the Corporation and its
subsidiaries shall be determined by the independent public accountants regularly
retained by the Corporation, in accordance with generally accepted accounting
principles consistently applied, and their determination shall be final and
conclusive. Such Net Profits shall be determined after eliminating all capital
gains and losses and deducting all proper expenses and charges on income and the
profit participations payable pursuant to this Agreement with respect to such
fiscal year.
(c) As to the fiscal year in which this Agreement is
executed and the fiscal year in which this Agreement expires, if it expires
other than on the last day of the Corporation's fiscal year, the Profit
Participation is to be pro rated, and the sum to which the Executive will be
entitled as his Profit Participation for any such fiscal year will be the amount
obtained by multiplying what the profit participation would have been for the
full fiscal year by a fraction, the numerator of which will be the number of
full calendar months of the fiscal year during which the Executive rendered
services pursuant to this Agreement and the denominator of which will be 12.
5. Benefits. During the term of this Agreement, Executive shall be
entitled to the following executive benefits:
5.1 Executive shall be entitled to reasonable vacation time
without reduction in salary.
5.2 During the period of his employment, Executive shall be
reimbursed for reasonable traveling and other business expenses reasonably
incurred in connection with the performance of his duties hereunder, subject to
reasonable verification as required in order for the Corporation to comply with
applicable laws and regulations and accounting practices.
5.3 Executive shall be entitled to all other benefits of
employment generally available to members of management of the Corporation.
2
6. Termination. The employment of Executive may be terminated at any
time by:
(i) Mutual agreement; or
(ii) Action of the Board of Directors, on thirty days' prior
written notice, in the event of illness or disability or Executive resulting in
failure to discharge his duties under this Agreement for ninety or more
consecutive days or for a total of one hundred eighty or more days in a period
of twelve consecutive months; or
(iii) Action of the Board of Directors, if it shall be
established that Executive is in material default in the performance of his
obligations, services or duties hereunder (other than for illness or incapacity)
or has materially breached any provision of this Agreement and such default or
breach has continued for twenty (20) days after written notice of such
non-performance or breach.
7. Insurance. Executive agrees that the Corporation may procure
insurance on his life, in such amounts as the Corporation may in its discretion
determine, and with the Company or any of its subsidiaries or affiliates named
as the beneficiary under such policy or policies. Executive agrees that upon
request from the Corporation he will submit to a physical examination and will
execute each such application or other documents as may be required for the
procurement of such insurance.
8 Trade Secrets. Executive agrees that he will not, during or after the
termination of his employment with the Corporation, furnish or make accessible
to any person, firm, corporation or any other entity any trade secrets,
technical data, customer list, sales representatives, or know-how acquired by
him during the term of his employment with the Corporation which relates to the
business, practices, methods, processes, programs, equipment or other
confidential or secret aspects of the business of the Company, or its
subsidiaries or affiliates or any portion thereof, without the prior written
consent of the Corporation, unless such information shall have become public
knowledge, other than being divulged or made accessible by Executive.
9 Non-disclosure. During the term of his employment and for two (2)
years after its termination, Executive will not, directly or indirectly,
disclose the names of the Corporation's customers, prospects or sales
representatives or those of its subsidiaries and affiliates or attempt to
influence such customers or representatives to cease doing business with the
Company or its subsidiaries or affiliates.
Executive shall communicate and make known to the Corporation all
knowledge possessed by him which he may legally impart relating to any methods,
developments, designs, processes, programs, services, and ideas which concern in
any way the business or prospects of the Corporation and its subsidiaries and
affiliates from the time of entering his employment until the termination
thereof.
3
10 Conflict of Interest. Executive agrees that during the term of his
employment and any extensions thereof, he will comply with the policy of the
Corporation with respect to the Corporation entering into, directly or
indirectly, any transactions with any business organization or other entity in
which he or any member of his family has a direct or indirect interest.
11 Miscellaneous.
11.1 The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement. The rights granted both parties herein are
cumulative and the election of one shall not constitute a waiver of such party's
right to assert all other legal remedies available under the circumstances.
11.2 Any notice to be given to the Corporation under the terms
of this Agreement shall be addressed to the Corporation, at the address of its
principal place of business, and any notice to be given to Executive shall be
addressed to him at his home address last shown on the records of the
Corporation, or such other address as either party may hereafter designate in
writing to the other. Any notice shall be deemed duly given when mailed by
registered or certified mail, postage prepaid, as provided herein.
11.3 The provisions of the Agreement are severable, and if any
provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
11.4 The rights and obligations of the Corporation under this
Agreement shall inure to the benefit of and be binding upon the successors and
assignees of the Corporation.
11.5 This Agreement supersedes all prior agreements and
understandings between the parties hereto, oral or written, and may not be
modified or terminated orally. No modification, termination or attempted waiver
shall be valid unless in writing, signed by the party against whom such
modification, termination or waiver is sought to be enforced.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
OMEGA METALS, INC.
/s/ Xxxxxx X. Xxxxxx
By: ---------------------------
XXXXXX X. XXXXXX
/s/ Xxxx Xxxxxxxx
---------------------------
XXXX XXXXXXXX
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and effective as of
November 11, 1998 between OMEGA METALS, INC., a Florida corporation (the
"Corporation"), and XXXX XXXXXXX, an individual ("Executive").
WHEREAS, Executive has been in the employ of the Corporation as its
President; and WHEREAS, the Corporation desires to assure the continuation of
Executive's services in connection with its business and that of its
subsidiaries and affiliates;
THEREFORE, in consideration of the premises and covenants herein set
forth, it is agreed as follows:
1. Employment. Corporation hereby employs Executive and Executive
accepts such employment on the terms and conditions set forth herein.
1.1 Executive covenants to perform in good faith his
employment duties as outlined herein, devoting his full productive time,
energies and abilities to the proper and efficient management of the business of
the Corporation and its subsidiaries and affiliates and for their exclusive
benefit.
1.2 Executive shall not, without the prior written consent of
the Corporation, directly or indirectly, during the term of this Agreement: (I)
render services of business, professional or commercial nature to any other
person or entity, whether for compensation or otherwise, similar or relating to
the business of the Corporation or its subsidiaries and affiliates, or (ii)
engage in any activity competitive with or adverse to the Corporation's business
or welfare, whether alone, as a partner or member, or as an officer, director,
Executive or 5% or greater shareholder of a corporation.
2. Term of Employment. Subject to the provisions set forth herein, the
term of Executive's employment hereunder shall continue for two (2) years.
3. Duties. Executive shall be employed and perform duties similar to
those that he is now performing on behalf of Corporation, or such other
activities within his area of expertise which the Corporation determines.
4. Compensation. For all services he may render to the Corporation
during the term of this Agreement, including services as officer, director or
member of any committee of the Board of Directors of the Corporation and its
subsidiaries, Executive shall receive the following compensation:
4.1 Executive shall receive a base salary at the rate of
$125,000 per year.
4.2 (a) The Corporation agrees to pay to the Executive a
profit participation (his "Profit Participation") equal to ten percent (10%) of
the net profits of the Corporation in excess of $1,200,000 ("Net Profits") for
each fiscal year of the Corporation during the term of this Agreement.
5
The Profit Participation with respect to a fiscal year shall be paid to
the Executive within 120 days after the end of the fiscal year.
(b) The Net Profits of the Corporation and its
subsidiaries shall be determined by the independent public accountants regularly
retained by the Corporation, in accordance with generally accepted accounting
principles consistently applied, and their determination shall be final and
conclusive. Such Net Profits shall be determined after eliminating all capital
gains and losses and deducting all proper expenses and charges on income and the
profit participations payable pursuant to this Agreement with respect to such
fiscal year.
(c) As to the fiscal year in which this Agreement is
executed and the fiscal year in which this Agreement expires, if it expires
other than on the last day of the Corporation's fiscal year, the Profit
Participation is to be pro rated, and the sum to which the Executive will be
entitled as his Profit Participation for any such fiscal year will be the amount
obtained by multiplying what the profit participation would have been for the
full fiscal year by a fraction, the numerator of which will be the number of
full calendar months of the fiscal year during which the Executive rendered
services pursuant to this Agreement and the denominator of which will be 12.
5. Benefits. During the term of this Agreement, Executive shall be
entitled to the following executive benefits:
5.1 Executive shall be entitled to reasonable vacation time
without reduction in salary.
5.2 During the period of his employment, Executive shall be
reimbursed for reasonable traveling and other business expenses reasonably
incurred in connection with the performance of his duties hereunder, subject to
reasonable verification as required in order for the Corporation to comply with
applicable laws and regulations and accounting practices.
5.3 Executive shall be entitled to all other benefits of
employment generally available to members of management of the Corporation.
6. Termination. The employment of Executive may be terminated at any
time by:
(i) Mutual agreement; or
(ii) Action of the Board of Directors, on thirty days' prior
written notice, in the event of illness or disability or Executive resulting in
failure to discharge his duties under this Agreement for ninety or more
consecutive days or for a total of one hundred eighty or more days in a period
of twelve consecutive months; or
(iii) Action of the Board of Directors, if it shall be
established that Executive is in material default in the performance of his
obligations, services or duties hereunder (other than for illness or incapacity)
or has materially breached any provision of this Agreement and such default or
breach has continued for twenty (20) days after written notice of such
non-performance or breach.
6
7. Insurance. Executive agrees that the Corporation may procure
insurance on his life, in such amounts as the Corporation may in its discretion
determine, and with the Company or any of its subsidiaries or affiliates named
as the beneficiary under such policy or policies. Executive agrees that upon
request from the Corporation he will submit to a physical examination and will
execute each such application or other documents as may be required for the
procurement of such insurance.
8 Trade Secrets. Executive agrees that he will not, during or after the
termination of his employment with the Corporation, furnish or make accessible
to any person, firm, corporation or any other entity any trade secrets,
technical data, customer list, sales representatives, or know-how acquired by
him during the term of his employment with the Corporation which relates to the
business, practices, methods, processes, programs, equipment or other
confidential or secret aspects of the business of the Company, or its
subsidiaries or affiliates or any portion thereof, without the prior written
consent of the Corporation, unless such information shall have become public
knowledge, other than being divulged or made accessible by Executive.
9 Non-disclosure. During the term of his employment and for two (2)
years after its termination, Executive will not, directly or indirectly,
disclose the names of the Corporation's customers, prospects or sales
representatives or those of its subsidiaries and affiliates or attempt to
influence such customers or representatives to cease doing business with the
Company or its subsidiaries or affiliates.
Executive shall communicate and make known to the Corporation all
knowledge possessed by him which he may legally impart relating to any methods,
developments, designs, processes, programs, services, and ideas which concern in
any way the business or prospects of the Corporation and its subsidiaries and
affiliates from the time of entering his employment until the termination
thereof.
10 Conflict of Interest. Executive agrees that during the term of his
employment and any extensions thereof, he will comply with the policy of the
Corporation with respect to the Corporation entering into, directly or
indirectly, any transactions with any business organization or other entity in
which he or any member of his family has a direct or indirect interest.
11 Miscellaneous.
11.1 The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement. The rights granted both parties herein are
cumulative and the election of one shall not constitute a waiver of such party's
right to assert all other legal remedies available under the circumstances.
7
11.2 Any notice to be given to the Corporation under the terms
of this Agreement shall be addressed to the Corporation, at the address of its
principal place of business, and any notice to be given to Executive shall be
addressed to him at his home address last shown on the records of the
Corporation, or such other address as either party may hereafter designate in
writing to the other. Any notice shall be deemed duly given when mailed by
registered or certified mail, postage prepaid, as provided herein.
11.3 The provisions of the Agreement are severable, and if any
provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
11.4 The rights and obligations of the Corporation under this
Agreement shall inure to the benefit of and be binding upon the successors and
assignees of the Corporation.
11.5 This Agreement supersedes all prior agreements and
understandings between the parties hereto, oral or written, and may not be
modified or terminated orally. No modification, termination or attempted waiver
shall be valid unless in writing, signed by the party against whom such
modification, termination or waiver is sought to be enforced.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
OMEGA METALS, INC.
/s/ Xxxxxx Xxxxxx
By: ---------------------------
XXXXXX XXXXXX
/s/ Xxxx Xxxxxxx
---------------------------
XXXX XXXXXXX
Omega/Emplyjp
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