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Exhibit 99.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into effective as of, October l
1996 by and between INTERNATIONAL FOAM SOLUTIONS, INC., a Florida corporation
(the "Company") and XXXXXX XXXX (Xxxx).
WHEREAS, the Company desires to secure the services of Xxxx, and Xxxx
desires to furnish such services to the Company upon the terms and conditions
set forth in this Agreement.
WHEREAS, Xxxx, by reason of the nature of Xxxx'x duties, will be
provided access to the Company's trade secrets and other confidential
information and the Company desires to maintain the confidentiality of the
same;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereto agree as follows:
1. Duties. The Company hereby employs Xxxx to serve the Company as
Chief Executive Officer of the "Company" "SEE ADDENDUM A". Xxxx shall be on the
Recycling Plant and Development Team and serve with the President of the
Company. Except with the prior approval of the President of the Company, Xxxx
agrees to devote his full time and energy toward the performance of the duties
and responsibilities assigned to him, which may be modified from time to time
in accordance with the above. "SEE ADDENDUM A" Xxxx agrees to refrain from
engaging directly or indirectly in any activity or business transaction for
himself or for any other person, corporation or subsidiary thereof, whether or
not for remuneration, direct or indirect, contingent or otherwise, which in any
way competes with any operation of the Company or which may result in a
conflict of interest or otherwise adversely affects the proper discharge of his
duties with, and responsibilities to, the Company. Such duties and
responsibilities shall be performed in accordance with the Company's rules,
regulation's, instructions and policies which are now in force and as amended
from time to time, or which may be adopted hereafter. However Xxxx may continue
to serve as President of HKI, Inc.
Any designs, ideas or process improvements by Xxxx to enhance the
Company's profitability which can be patented or copyrighted, will be patented
or copyrighted by the Company and Xxxx will assign all rights to the Company as
this falls under his duties as outlined in ADDENDUM "A". Ideas or prior "art"
does not fall under this category.
If the Company directly markets any of Xxxx'x new ideas he will
receive a 2.5% of the net profits attributed to that specific portion of the
total Patents, product or portions that is attributed to Xxxx patents.
2. Compensation. The Company covenants and agrees that, in
consideration of the services performed hereunder, it will pay to Xxxx the
starting rate of $150,000.00 per year with annual increases to be determined by
performance of the company as well as all out of pocket expenses.
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3. Benefits. Xxxx shall be entitled to the following benefits:
(a) Xxxx shall be entitled to participate in all benefit
programs established by the Company from time to time in accordance with
Company's Benefit Package "A".
(b) Xxxx shall be entitled to vacation from May of 1993 as
follows:
2 weeks after anniversary from year 1 to 3
3 weeks from 4th to 6th year
4 weeks from 7th through 12th year and
6 weeks after 13 years or more
as well as 9 paid holidays, as designated by the Company, and one personal day.
(c) The Company shall reimburse Xxxx for all reasonable
out-of-pocket expenses incurred by him in connection with the performance of
his duties hereunder upon the presentation of appropriate documentation
therefore in accordance with the Company's regular procedures. Such
reimbursement shall include automobile allowance each month and travel and
entertainment expenses. The following equipment and expenses will be paid or
supplied by the Company and any and all office equipment will be the property
of the Company.
One Cellular Telephone and one dedicated phone line to be billed
directly to the Company.
4. Term. This Agreement shall become effective as of the date set
forth above, and shall expire 5 years hereafter, subject to earlier termination
in accordance with the following paragraphs. This Agreement shall be renewable
and re-negotiated 90 days before the end of Term.
5. Disability. If Xxxx shall be unable substantially to perform the
duties required of him pursuant to this Agreement due to any injury, illness or
disease as determined by an independent physician mutually acceptable to the
Company and Xxxx, and such inability shall continue for a period of 90 days,
the Company shall have the right to terminate this Agreement upon written
notice to Xxxx. Notwithstanding any such termination, Xxxx shall be entitled to
receive the base salary and benefits accrued or accruable to Xxxx pursuant
to this Agreement up to the date of this contract or a minimum of two years
salary.
6. Death. In the event of Xxxx'x death during the term of his
employment, this Agreement shall terminate as of the date of death. Xxxx'x
beneficiary or estate shall be entitled to receive any salary, bonuses,
vacation pay, or other benefits which have accrued or are accruable pursuant to
this Agreement through the date of death.
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7. Termination for Cause. The Company shall have the right to
terminate the employment of Xxxx hereunder for cause at any time if:
(a) Xxxx is convicted by a court of competent and final
jurisdiction of any crime (whether or not involving the Company) which
constitutes a felony in the jurisdiction involved; or
(b) Xxxx commits any act of embezzlement or similar conduct
against or shall breach a fiduciary obligation to the Company, or shall be
habitually drunk in public or otherwise act in such a manner as to adversely
reflect upon the reputation of the Company; or
(c) Xxxx unreasonably fails or refuses to perform in any
material respect any of his duties and responsibilities as required by this
Agreement.
Any termination for cause may be effected by delivery to Xxxx of a
written notice of termination, stating with specificity the reason for
termination, and shall be effective as of the date of such notice. Upon
termination for cause, any salary, bonuses, vacation pay, or other benefits
which have accrued or are accruable through the end of this contract or a
minimum of two (2) years.
8. Termination Without Cause. The Company may terminate Xxxx'x
employment hereunder without cause at any time upon thirty days' prior written
notice. Upon any such termination, Xxxx shall be entitled to receive a lump sum
payment equal to the base salary and guaranteed bonus which would have been
payable to Xxxx for the 36 months following the date of termination.
For purposes of this Agreement, the following shall be deemed a
termination of Xxxx'x employment hereunder without cause:
(a) Xxxx'x substantive responsibilities are changed without the
prior approval of Xxxx.
(b) All or substantially all of the assets of the Company are sold,
or there is a "Change in Control" of the Company, unless in conjunction with
such sale or Change in Control this Agreement is extended through a date at
least three years from the date of the sale or Change in Control.
For purposes of this Agreement, "Change in Control" shall mean a
change in control of a nature that would be required to be reported in response
to Item 5(f) of Schedule 14A Regulation 14A promulgated under the Securities
Exchange Act of 1934 as in effect on the date of this Agreement. Without
limitation, such a change in control shall be deemed to have occurred if and
when (a) any "person" (as such term is used in Sections 13(d) and 14(d)-II (2)
of the Securities Exchange Act of 1934) other than a person currently holding
such a position, is or becomes a beneficial owner, directly or indirectly, of
securities of the Company representing twenty-five percent (25%) or more of the
combined voting power of that company's then
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outstanding securities, or (b) during any period of 12 consecutive months,
commencing before or after the date of this Agreement, individuals who at the
beginning of such 12 month period were directors of the Company cease for any
reason to constitute at least thirty percent (30%) of the Company's Board of
Directors.
9. Termination by Xxxx. Xxxx may terminate his employment hereunder,
subject to the restrictive covenants hereinafter stated, upon giving thirty
days prior written notice to the Company, in which event Xxxx'x salary and
benefits shall be continued through the date of termination and 12 months
thereafter.
10. Certain Restrictive Covenants.
(a) Xxxx recognizes and acknowledges that confidential
information may exist, from time to time, with respect to the business of the
Company. Accordingly, Xxxx agrees that he will not disclose any confidential
information relating to the business of the Company to any individual or entity
during his employment or hereafter. The provisions of this paragraph shall not
apply to information which is or shall become generally known to the public or
the trade (except by reason of Xxxx'x breach of his obligations hereunder),
information which is or shall become available in trade or other publications
(except by reason of Xxxx'x breach of his obligations hereunder), and
information which Xxxx is required to disclose by order of a court of competent
jurisdiction (but only to the extent specifically ordered by such court and,
when reasonably possible, if Xxxx shall give the Company prior notice of such
intended disclosure so that it has the opportunity to seek a protective order
if it deems appropriate).
(b) As used in this Agreement, "confidential information" shall
mean studies, plans, reports, survey, analyses, sketches, drawing, notes,
records, unpublished memoranda or documents, and all other non-public
information relating to the Company's manufacturing and marketing activities,
including, shop practices, equipment, research data, marketing and sales
information, personnel data, customer lists, employee lists, financial data,
plans and all other techniques, know how and trade secrets which presently or
in the future are in the possession of the Company.
(c) All memoranda, notes, records, reports, sketches,
photographs, drawing, plans, paper or other documents made or compiled by or
made available to Xxxx in the course of employment hereunder are and shall be
the sole and exclusive property of the Company and shall be promptly delivered
and returned to the Company by Xxxx immediately upon termination of employment
with the Company.
(d) For so long as he is employed by the Company, and for a
period of two years hereafter, Xxxx shall not engage (either as principal,
agent or consultant, or through any corporation, firm or organization in which
he may be an officer, director, employee, controlling stockholder, partner,
member, or with which he is otherwise affiliated) directly or indirectly, in
any activity or business anywhere in the world which is engaged in the
recycling or reconversion of polystyrenes.
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11. Injunction. Xxxx acknowledges that the services to be rendered by
him are of a special unique and extraordinary character, and, in connection
with such services, he will have access to confidential information vital to
the Company's business. Accordingly, Xxxx consents and agrees that if he
violates any of the provisions of paragraph 10 hereof, the Company would
sustain irreparable harm and, therefore, in addition to any other remedies
which may be available to it, the Company shall be entitled to an injunction
restraining Xxxx from committing or continuing any such violation of this
Agreement. Nothing in this Agreement shall be construed as prohibiting the
Company from pursuing any other remedy or remedies including, without
limitation, recovery of damages.
12. Modification or Elimination of Restrictions. In the event that any
of the restrictions, contained in paragraphs 10 or 11 hereof shall be held to be
in any way an unreasonable restriction on Xxxx, then the court so holding may
reduce the territory and/or period of time in which such restriction operates,
or modify or eliminate any such restriction to the extent necessary to render
such paragraphs enforceable.
14. Entire Agreement. This Agreement represents the entire Agreement
between the parties with respect to the subject matter hereof and shall not be
modified or affected by any offer, proposal, statement or representation, oral
or written, made by or for either party in connection with the terms hereof.
This Agreement may not be amended except by an instrument in writing signed by
the Company and Xxxx.
15. Serviceability. Should any provision or clause hereof be held to
be invalid, such invalidity shall not affect any other provision or clause
hereof which can be given effect without such invalid provision. This Agreement
shall inure to the benefit of and be binding upon the Company, its successors
and assigns and upon Xxxx and his heirs, executor, administrators, or other
legal representatives.
16. Laws Applicable. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
INTERNATIONAL FOAM SOLUTIONS, INC.
XXXXXX XXXX
/s/ Xxxxxx Xxxx /s/ Xxxxxxx Xxxxxx
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SS# ###-##-#### XXXXXXX XXXXXX,PRESIDENT
-------------------------
/s/
----------------------------
WITNESS
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IFS
JOB DESCRIPTION
JOB TITLE: Chief Executive Officer
DEPARTMENT:
REPORTS TO: President and Chairman of the Board
FLSA STATUS: Non Exempt
PREPARED BY: Xxxxxxx Xxxxxx
PREPARED DATE: 6-23-93
APPROVED BY: Xxxxxxx Xxxxxx
APPROVED DATE: 6-25-95
SUMMARY
Manages and directs the organization toward its primary objectives, based on
profit and return on capital, by performing the following duties personally or
through subordinate managers.
ESSENTIAL DUTIES AND RESPONSIBILITIES include the following. Other duties may be
assigned.
Establishes current and long range objectives, plans, and policies, subject to
approval by the Board of Directors.
Dispenses advice, guidance, direction, and authorization to carry out major
plans and procedures, consistent with established policies and Board approval.
Oversees the adequacy and soundness of the organization's financial structure.
Reviews operating results of the organization, compares them to established
objectives, and takes steps to ensure that appropriate measures are taken to
correct unsatisfactory results.
Plans and directs all investigations and negotiations pertaining to mergers,
joint ventures, the acquisition of businesses, or the sale of major assets with
approval of the Board of Directors.
Establishes and maintains an effective system of communications throughout the
organization.
Represents the organization with major customers, shareholders, the financial
community, and the public.
SUPERVISORY RESPONSIBILITIES
Manages six subordinate supervisors who supervise a total of all employees in
the COO, CFO, Facility Mgr, Director of Recycling, Department Head of R&D, and
Executive Assistant. Is responsible for the overall direction, coordination,
and evaluation of these units. Also directly supervises zero non-supervisory
employees. Carries out supervisory responsibilities in accordance with the
organization's policies and applicable laws. Responsibilities include
interviewing, hiring, and training employees; planning, assigning, and
directing work; appraising performance; rewarding and disciplining employees;
addressing complaints and resolving problems.
QUALIFICATIONS To perform this job successfully, an individual must be able to
perform
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each essential duty satisfactorily. The requirements listed below are
representative of the knowledge, skill, and/or ability required. Reasonable
accommodations may be made to enable individuals with disabilities to perform
the essential functions.
EDUCATION AND/OR EXPERIENCE
Fifth year college or university program certificate; or two to four years
related experience and/or training; or equivalent combination of education and
experience.
LANGUAGE SKILLS
Ability to read, analyze, and interpret common scientific and technical
journals, financial reports, and legal documents. Ability to respond to common
inquiries or complaints from customers, regulatory agencies, or members of the
business community. Ability to write speeches and articles for publication
that conform to prescribed style and format. Ability to effectively present
information to top management, public groups, and/or boards of directors.
MATHEMATICAL SKILLS
Ability to apply advanced mathematical concepts such as exponents, logarithms,
quadratic equations, and permutations. Ability to apply mathematical operations
to such tasks as frequency distribution, determination of test reliability and
validity, analysis of variance, correlation techniques, sampling theory, and
factor analysis.
REASONING ABILITY
Ability to apply principles of logical or scientific thinking to a wide range
of intellectual and practical problems. Ability to deal with nonverbal
symbolism (formulas, scientific equations, graphs, musical notes, etc.,) in its
most difficult phases. Ability to deal with a variety of abstract and concrete
variables.
CERTIFICATES, LICENSES, REGISTRATIONS
PHYSICAL DEMANDS The physical demands described here are representative of
those that must be met by an employee to successfully perform the essential
functions of this job. Reasonable accommodations may be made to enable
individuals with disabilities to perform the essential functions.
While performing the duties of this job, the employee is regularly required to
reach with hands and arms and talk or hear. The employee frequently is required
to stand; sit; use hands to finger, handle, or feel; and climb or balance. The
employee is occasionally required to walk and stoop, kneel, xxxxxx, or crawl.
The employee must occasionally lift and/or move up to 25 pounds. Specific
vision abilities required by this job include depth perception, and ability to
adjust focus.
WORK ENVIRONMENT The work environment characteristics described here are
representative of those an employee encounters while performing the essential
functions of this job. Reasonable accommodations may be made to enable
individuals with disabilities to perform the essential functions.
While performing the duties of this job, the employee is frequently exposed to
fumes or airborne particles. The employee is occasionally exposed to wet and/or
humid conditions, moving mechanical parts, toxic or caustic chemicals, outside
weather conditions, extreme cold, extreme heat, and risk of electrical shock.
The noise level in the work environment is usually quiet.
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