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EXHIBIT 10.18
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), made and entered into the 7th
day of May 1997, by and between COMMODORE ENVIRONMENTAL SERVICES, INC., a
Delaware corporation having offices at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx 00000 (the "Company"), and XXXXXXX XXXXXXXX, an individual
residing at 00 Xxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (the "Employee").
WITNESSETH:
WHEREAS, the Employee has substantial knowledge and experience relating
to financial management and administration, and the Company desires to obtain
the full-time services of the Employee to serve in a senior executive capacity
with the Company and its direct and indirect subsidiary corporations
(collectively, the "Subsidiaries"); such Subsidiaries to expressly include,
without limitation, Commodore Applied Technologies, Inc. ("CXI"), Commodore
Separation Technologies, Inc. ("CST"), Commodore Advanced Sciences, Inc. ("CAS")
and Commodore CFC Technologies, Inc. ("Refrigerant"); and
WHEREAS, the Employee is ready, willing and able to serve as a senior
executive officer of the Company and the Subsidiaries (collectively, the
"Corporations"), all upon the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties hereto hereby agree as follows:
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Part A. Employment.
1. Duties. Subject to the terms and conditions of this Agreement,
the Company shall employ the Employee and the Employee shall render services to
the Corporations in the capacities and with the titles of Senior Vice President,
Chief Financial and Administrative Officer, Secretary and General Counsel of the
Company and each of its Subsidiaries. Employee shall report to the Chairman of
the Board of the Company. Subject always to the direction of the Chairman of the
Board of the Company and the Chairmen of the Boards of the Subsidiaries and the
Boards of Directors of the Corporation, as appropriate, Employee shall have the
authority to and the responsibility of managing the financial, legal and
administrative functions of the Corporations, including the functions of
treasury, accounting, law, corporate secretary, internal audit, information
systems and human resources. No additional compensation shall be paid to the
Employee for service to any of the Company's Subsidiaries.
2. Full-Time Employment. Throughout the period of his employment
hereunder, the Employee shall devote his full and entire professional and
business time, attention, knowledge and skills to faithfully, diligently and to
the best of his abilities perform his duties hereunder. It is expected that the
Employee will render his services primarily from the Company's New York, New
York office, provided that the Employee will engage in such travelling as may be
reasonably required in connection with the performance of his duties hereunder.
3. Ability to Perform. The Employee hereby represents and warrants
to the Company that he is under no legal disability and has entered into no
agreements which in any way limit or render the Employee incapable of performing
his obligations under this Agreement
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or his fiduciary duties as the Senior Vice President, Chief Financial and
Administrative Officer, Secretary and General Counsel of the Company. The
Employee further covenants that he will not impair his ability to carry out his
obligations under this Agreement or his fiduciary duties as the Senior Vice
President, Chief Financial and Administrative Officer, Secretary and General
Counsel of the Company by entering into any agreement or in any way assisting
others, directly or indirectly, to enter into any agreement which will violate
the confidentiality and non-competition provisions of Part D of this Agreement.
Part B. Term of Employment: Termination of Agreement.
1. Term. Subject to prior termination in accordance with the
provisions hereof, the term of this Agreement shall commence on May 1, 1997 and
shall continue through and including April 30, 1999 (the "Term").
Notwithstanding the foregoing, the Board of Directors of the Company shall have
the right to extend this Agreement on the same terms and conditions, upon
written notice from the Company to the Employee given at any time on or before
March 31, 1999 and March 31, 2000, respectively, for up to two (2) additional
periods of one year each. As used herein, the "Term" of this Agreement shall
include the initial two (2) year Term through April 30, 1999 and either or both
of the additional one (1) year extensions provided for herein.
2. Termination For Cause. Anything contained in Section 1 of this
Part B to the contrary notwithstanding, this Agreement may be terminated at the
option of the Board of Directors of the Company (the "Board") for "Cause" (as
hereinafter defined), effective upon the giving of written notice of termination
to the Employee. As used herein, the term "Cause" shall mean and be limited to:
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(a) any act committed by the Employee against the Company, or any
of its Subsidiaries or divisions, constituting: (i) fraud, (ii) misappropriation
of corporate opportunity, breach of fiduciary duty or non-disclosure of a
conflict of interest, (iii) self-dealing, (iv) embezzlement of funds, (v) felony
conviction for conduct involving moral turpitude or other criminal conduct, or
(vi) the disregard by the Employee of the reasonable directions of the Board or
of the Chief Executive Officer of the Company; provided, that Employee has been
given written notice of such disregard and a reasonable opportunity to cure the
same; or
(b) the breach or default by the Employee in the performance of any
material provision of this Agreement (including but not limited to Part D
below); provided, that Employee has been given written notice of such breach or
default, and a reasonable opportunity to cure the same; or
(c) alcoholism or any other form of addiction which impairs the
Employee's ability to perform his duties hereunder.
3. Death or Disability. Anything contained in Section 1 of this Part B
to the contrary notwithstanding, this Agreement may be terminated by the
Company; (i) upon the death of the Employee, or (ii) on thirty (30) days' prior
written notice to the Employee, in the event that the Employee shall be
physically or mentally disabled or impaired so as to prevent him from continuing
the normal and proper performance of his duties and responsibilities hereunder
for a period of three (3) consecutive months. The initial determination as to
whether the Employee is disabled or impaired shall be made by the physician
regularly treating the condition causing the disability. The Company shall have
the right to require the Employee to be examined by a physician duly licensed to
practice medicine in the State in which the
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Employee has his primary residence to determine such physician's opinion as to
the Employee's disability. If such physician's opinion differs from that of the
physician treating the Employee, or a physician thereafter retained by the
Employee, they shall forthwith select a third physician so licensed whose
opinion, after examination and review of available information, shall be
conclusive and binding upon all parties hereto. All costs of the physician
regularly treating or thereafter retained by the Employee shall be paid by the
Employee. All costs of the physician retained by the Company shall be paid by
the Company. If a third physician is required, then the costs of that physician
shall be paid by the Company.
4. No Further Obligations. Upon any termination of this Agreement by the
Company for "Cause" pursuant to Section 2 of this Part B, or by reason of the
Employee's death or disability pursuant to Section 3 of this Part B, neither the
Company nor any Subsidiary or division thereof shall be liable for or be
required to pay to the Employee any further remuneration, compensation or other
benefits hereunder; provided, however, that in the event of termination due to
disability, the Company shall pay the Employee the benefits described in Section
8 of Part C.
5. Breach of Agreement by Company. In the event the Company or the
Corporations materially breach this Agreement or are in default hereunder,
Employee may resign by written notice to the Company, provided that Employee
shall have given written notice to the Company of the alleged breach or default
and given the Company a reasonable opportunity to cure the alleged breach or
default. In the event that the Employee resigns pursuant to this Section 5 of
this Part B, he shall be entitled to the benefits described in Section 8 of
Part C.
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Part C. Compensation: Expenses.
1. Base Salary. Throughout the Term of this Agreement, the Company
shall pay, or shall cause its Subsidiaries to pay, to the Employee an annual
salary at the rate of $225,000 per annum for the first year, which rate shall be
increased by not less than 5% per year during the Term of this Agreement (the
"Base Salary"). Such Base Salary shall be paid no less frequently than monthly
in accordance with the customary payroll practices of the Company, and shall
include deductions for all federal withholding, social security and other
applicable taxes required to be withheld by an employer.
2. Company Stock Options. In consideration for the Employee's
entering into this Agreement with the Company, in addition to the stock options
under Section 3 of this Part C, the Company is, as of the date hereof, granting
to the Employee a stock option (the "Stock Option") to purchase an aggregate of
500,000 shares of Company Common Stock at an exercise price per share equal to
the closing sale or bid price of the Company Common Stock as reported or quoted
on the OTC Bulletin Board, on the Nasdaq Stock Market or other recognized
national securities exchange, on the last trading day prior to the date hereof.
Provided that the Employee is in the full-time employ of the Company on each
date of exercise, such Stock Option will be exercisable as to 100,000 shares of
Common Stock commencing on the date hereof (the "Initial Vesting Date") and as
to an additional 100,000 shares of Common Stock commencing on each of the four
successive anniversaries of the Initial Vesting Date. The other terms and
conditions of the Stock Option shall be as set forth in a separate Stock Option
Agreement between the Company and the Employee.
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3. Subsidiary Stock Options.
(a) CXI. In addition to the stock options under Section 2 of
this Part C, by its execution of this Agreement, CXI is, as of the date hereof,
granting to the Employee a stock option (the "CXI Stock Option") to purchase an
aggregate of 125,000 shares of CXI common stock at an exercise price per share
equal to the closing sale or bid price of the CXI common stock as reported or
quoted on the American Stock Exchange or other national securities exchange, on
the last trading day prior to the date hereof. Provided that the Employee is in
the full-time employ of the Company and continuing to render services to CXI on
each date of exercise, such CXI Stock Option will be exercisable as to 25,000
shares of CXI common stock commencing on the Initial Vesting Date and as to an
additional 25,000 shares of CXI common stock commencing on each of the four
successive anniversaries of the Initial Vesting Date. The other terms and
conditions of the CXI Stock Option shall be set forth in a separate Stock Option
Agreement between CXI and the Employee.
(b) CST. In addition to the stock options under Section 2 of
this Part C, by its execution of this Agreement, CST is, as of the date hereof,
granting to the Employee a stock option (the "CST Stock Option") to purchase an
aggregate of 67,500 shares of CST common stock at an exercise price per share
equal to the closing sale or bid price of the CST common stock as reported or
quoted on the Nasdaq Stock Market or other national securities exchange, on the
last trading day prior to the date hereof. Provided that the Employee is in the
full-time employ of the Company and continuing to render services to CST on
each date of exercise, such CST Stock Option will be exercisable as to 13,500
shares of CST common stock commencing on the Initial Vesting Date and as to an
additional 13,500 shares of CST common
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stock commencing on each of the four successive anniversaries of the Initial
Vesting Date. The other terms and conditions of the CST Stock Option shall be
as set forth in a separate Stock Option Agreement between CST and the Employee.
4. Incentive Compensation. The Employee will be entitled to receive
incentive compensation of up to $75,000 per year for achieving certain goals to
be established and determined by the parties within 120 days after the date of
this Agreement, but in no event shall such incentive compensation be less than
$25,000 per year. Sums set forth in this Section 4 of Part C shall be increased
by not less than 5% per year during the Term of this Agreement. For performance
significantly beyond the agreed-upon goals in the sole discretion and judgment
of the Chairman of the Board, the Company shall consider paying the Employee
incentive compensation in excess of $75,000 per year.
5. Benefits. In addition to the foregoing compensation, the Employee
shall, throughout the period of his employment hereunder, be eligible to
participate in any and all group health, group life and/or other benefit plans
generally made available by the Company to its employees, provided that nothing
herein contained shall be deemed to require the Company to maintain or continue
any particular plan or policy.
6. Vacation. The Employee shall be entitled to up to four (4) weeks
of vacation per year, to be taken at such times as shall be mutually agreeable
to the Company and the Employee, and so as not to unduly interfere with the
business of the Company. The Employee may carry over, to the next annual period
hereunder, up to two (2) weeks of unused vacation time as at the end of each
year of the term of this Agreement.
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7. Expenses. In addition to the compensation set forth above, throughout
the period of the Employee's employment hereunder, the Company shall also
reimburse the Employee or cause the Employee to be reimbursed, upon presentment
by the Employee to the Company of appropriate receipts and vouchers therefor,
for any reasonable business expenses incurred by the Employee in connection
with the performance of his duties and responsibilities hereunder; provided,
however, that in order to be reimbursable hereunder, any such expense must be
deductible (in whole or in part) by the Company for federal income tax
purposes.
8. Severance. In the event that Employee is terminated without "Cause,"
the Company shall appoint Employee as a consultant (the "Consultant") to the
Company and one or more of its Subsidiaries for a period of six months (the
"Consulting Period") following the date of the Employee's termination as an
employee of the Company. During the Consulting Period, the Consultant shall be
paid a monthly fee equal to one-twelfth of the Base Salary set forth in Section
1 of Part C and shall receive the incentive compensation set forth in Section 4
of Part C. In addition, all of the options to purchase stock of the Company and
the Subsidiaries which have been granted to Employee pursuant to this
Agreement, and which have vested as of the date of Employee's termination as an
employee of the Company, will be deemed vested and will remain exercisable by
the Consultant and not subject to forfeiture as a result of the termination of
this Agreement. Notwithstanding the foregoing, any options to purchase stock of
the Company and the Subsidiaries which have been granted to Employee pursuant
to this Agreement, and which have not vested as of the date of Employee's
termination as an employee of the Company will be deemed forfeited by the
Employee.
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Part D. Confidentiality: Non-Competition. As a material inducement to
cause the Company to enter into this Agreement, the Employee hereby covenants
and agrees that:
1. Confidential Information. The Employee shall, at all times
during and subsequent to the Term, keep secret and retain in strictest
confidence all confidential matters of the Corporations, and the "know-how",
trade secrets, technical processes, inventions, equipment specifications,
equipment designs, plans, drawings, research projects, confidential client
lists, details of client, subcontractor or consultant contracts, pricing
policies, operational methods, marketing plans and strategies, project
development, acquisition and bidding techniques and plans, business acquisition
plans, and new personnel acquisition plans of the Corporations and its
Subsidiaries and divisions (whether now known or hereafter learned by the
Employee), except to the extent that (i) such information is generally
available to the public without restriction, (ii) the Employee obtains
confidentiality agreements with respect to such confidential information, (iii)
the Employee is requested by the Board of Directors of the Corporations or a
Committee thereof, or by the Chairman of the Corporations, to disclose such
confidential information, (iv) such information is provided to a customer of
the Corporations pursuant to a request received from such customer in the
ordinary course of business, or (v) the Employee is under compulsion of either
a court order or a governmental agency's or authority's inquiry, order or
request to so disclose such information.
2. Property of the Corporations.
(a) Except as otherwise provided herein, all lists,
records and other non-personal documents or papers (and all copies thereof)
relating to the Corporations and/or any of its Subsidiaries or divisions,
including such items stored in computer memories, on
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microfiche or by any other means, made or compiled by or on behalf of the
Employee, or made available to the Employee, are and shall be the property of
the Corporations, and shall be delivered to the Corporations on the date of
termination of the Employee's employment with the Company, or sooner upon
request of the Company at any time or from time to time.
(b) All inventions, including any procedures, formulas, methods,
processes, uses, apparatuses, patterns, designs, plans, drawings, devices or
configurations of any kind, any and all improvements to them which are
developed, discovered, made or produced, and all trade secrets and information
used by the Corporations and/or its Subsidiaries and divisions (including,
without limitation, any such matters created or developed by the Employee during
the term of this Agreement), shall be the exclusive property of the Corporations
or the subject Subsidiary, and shall be delivered to the Company or the subject
Subsidiary (without the Employee retaining any copies, components or records
thereof) on the date of termination of the Employee's employment with the
Corporations; provided, however, that nothing herein contained shall be deemed
to grant to the Corporations any property rights in any inventions or other
intellectual property which may at any time be developed by the Employee which
is wholly unrelated to any business then engaged in or under development by the
Corporations.
3. Employees of the Corporations. The Employee shall not, at any time
(whether during the term of this Agreement or at any time thereafter), directly
or indirectly, for or on behalf of any business enterprise other than the
Company and/or its Subsidiaries and affiliates, solicit any employee of the
Company or any of its Subsidiaries to leave his or her employment with the
Company or such Subsidiary, or encourage any such employee to leave such
employment, without the prior written approval of the Corporations in each
instance.
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4. Non-Competition. For so long as the Employee shall be receiving any
compensation or remuneration under this Agreement, and for a further period of
one (1) year thereafter, the Employee shall not, directly or indirectly,
whether individually or as an employee, stockholder (other than the passive
ownership of up to 5% of the capital stock of a publicly traded corporation),
partner, joint venturer, agent or other representative of any other person,
firm or corporation, engage or have any interest in any business (other than
the Company or any of its Subsidiaries or affiliates) which, in any country in
which the Company or any of its Subsidiaries or divisions does or solicits
business during the Term, is engaged in or derives any revenues from performing
any functionally equivalent services or marketing any functionally equivalent
products as those services provided and products marketed by the Company or any
of its Subsidiaries or divisions during the Term.
5. Severability of Covenants. The Employee acknowledges and agrees
that the provisions of this Part D are (a) made in consideration of the
premises and undertakings of the Company set forth herein, (b) made for good,
valuable and adequate consideration received and to be received by the
Employee, and (c) reasonable and necessary, in terms of the time, geographic
scope and nature of the restrictions, for the protection of the Company and the
business and good will thereof. It is intended that the provisions of this Part
D be fully severable, and in the event that any of the foregoing restrictions,
or any portion of the foregoing restrictions, shall be deemed contrary to law,
invalid or unenforceable in any respect by any court or tribunal of competent
jurisdiction, then such restrictions shall be deemed to be amended, modified
and reduced in scope and effect, as to duration and/or geographic area, only to
that extent necessary to render same valid and enforceable (and in such
reduced form, such
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provisions shall then be enforceable), and any other of the foregoing
restrictions shall be unaffected and shall remain in full force and effect.
6. Equitable Remedies. The parties hereby acknowledge that,
in the event of any breach or threatened breach by the Employee of the
provisions of this Part D, the Company will suffer irreparable harm and will not
have an adequate remedy at law. Accordingly, in the event of any such breach or
threatened breach, the Company may seek and obtain appropriate equitable relief
to restrain or enjoin such breach or threatened breach and/or to compel
compliance herewith.
Part E. Miscellaneous.
1. Indemnification. The Company agrees to indemnify and
hold harmless Employee from any and all liabilities incurred or sustained by
him in connection with any claim, action, investigation, suit, or proceeding to
which he may be made a party by reason of his being or having been an officer,
director, or employee of the Corporations or any of them, to the maximum extent
permitted by applicable law. The Company shall advance any reasonable legal
fees to be incurred by Employee in defending himself in any proceeding against
the imposition of any such liability to the extent permitted by applicable law.
2. Binding Effect. All of the terms and conditions of this
Agreement shall be binding upon and inure to the benefit of the Employee, the
Company and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
3. Notices. Except as may otherwise be provided herein,
any notice, request, demand or other communication required or permitted under
this Agreement shall be in writing and shall be deemed to have been given when
delivered personally or when mailed by certified
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mail, return receipt requested, addressed to a party at the address of such
party first set forth above, or at such other address as such party may
hereafter have designated by notice. Copies of all notices hereunder shall
simultaneously be sent by first class post-paid mail to Greenberg, Traurig,
Hoffman, Lipoff, Xxxxx & Xxxxxxx, Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx X. Xxxxx, Esq.
4. Waivers. Neither this Agreement nor any of the terms or conditions
hereof may be waived, amended or modified except by means of a written
instrument duly executed by the party to be charged therewith.
5. Captions. The captions and paragraph headings used in this Agreement
are for convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
6. Governing Law. This Agreement, and all matters or disputes relating
to the validity, construction, performance or enforcement hereof, shall be
governed by, and construed under, the laws of the State of New York, without
giving effect to principles of conflicts of laws thereof.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original hereof, but all of
which together shall constitute one and the same instrument.
8. Arbitration. Except for any court action or proceeding to obtain
equitable relief in respect of the provisions of Part D above, any dispute
involving the interpretation or application of this Agreement shall be resolved
by final and binding arbitration before an arbitrator designated by, and
mutually acceptable to, the Company and the Employee. In the
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event that the parties cannot agree to the appointment of a mutually acceptable
arbitrator, the subject dispute shall be resolved by final and binding
arbitration before one or more arbitrators designated by the American
Arbitration Association in New York, New York, unless mutually agreed to
otherwise. The award of any of such arbitrator(s) may be enforced in any court
of competent jurisdiction.
9. Assignment.
(a) This Agreement is intended for the sole and exclusive benefit of
the parties hereto and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns, and no other person
or entity shall have any right to rely on this Agreement or to claim or derive
any benefit herefrom absent the express written consent of the party to be
charged with such reliance or benefit.
(b) The Employee may not assign or otherwise transfer any of his
obligations or duties hereunder to any other person, firm or corporation, it
being understood and agreed that this Agreement is intended to be for the
personal services of the Employee only and of no other person.
(c) The Company shall have the right, at any time and from time to
time, to cause any payments required hereunder to be made by any Subsidiary of
the Company. Furthermore, the Company may assign this Agreement to any
successor-in-interest who may acquire, whether by direct purchase, sale of
securities, merger or consolidation, the assets, business or properties of the
Company; provided that no such assignment shall relieve the
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Company of its duties and obligations to the Employee hereunder, without the
prior written consent of the Employee.
10. Superseding Effect. This Agreement supersedes and replaces any
previous employment agreement entered into by the Employee with the Company or
any Subsidiary or affiliate thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date first set forth above.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Chairman of the Board
COMMODORE APPLIED TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Chairman of the Board
COMMODORE SEPARATION TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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