VERTEX ENERGY, INC. EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.7
VERTEX
ENERGY, INC.
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made
this 28th day of January, 2009 (the “Execution Date”), to
be effective as of the Effective Date as defined below, between Vertex Energy,
Inc., a Nevada corporation (the “Company”), and
▇▇▇▇▇▇▇ ▇▇▇▇ (“Executive”) (each of
Company and Executive is referred to herein as a “Party,” and
collectively referred to herein as the “Parties”).
W
I T N E S S E T H:
WHEREAS, the Company desires
to obtain the services of Executive, and Executive desires to be employed by the
Company upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the premises, the agreements herein contained and other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as of the Effective Date as follows:
ARTICLE
I.
EMPLOYMENT;
TERM; DUTIES
1.1. Employment. Pursuant
to the terms and conditions hereinafter set forth, the Company hereby employs
Executive, and Executive hereby accepts such employment, as the Chief Operating
Officer of the Company for a period of four (4) years beginning on the Effective
Date (the “Initial
Term”); provided that this Agreement shall automatically extend for
additional one (1) year periods after the Initial Term (each an “Automatic Renewal
Term”) in the event that neither party provides the other written notice
of their intent not to automatically extend such Agreement at least sixty (60)
days prior to such Automatic Renewal Date. It is understood by the Company and
Executive that Executive shall perform duties from his home or at an office in
California.
1.2. Duties and
Responsibilities. Executive, as Chief Operating Officer, shall
perform such administrative, managerial and executive duties for the Company (i)
as are prescribed by applicable job specifications for an executive officer of a
public company the size and nature of the Company specifically including but not
limited to those enumerated in Exhibit A attached,
(ii) as may be prescribed by the Bylaws of the Company, (iii) as are
customarily vested in and incidental to such position, and (iv) as may be
assigned to him from time to time by the Board of Directors of the Company (the
“Board”).
1.3. Non-Competition. For
$10 and other good and valuable consideration which Executive acknowledges
receiving, Executive agrees to devote substantially all of Executive’s business
time, energy and efforts to the business of the Company (except as specifically
provided for in Section 1.4 below), and will use Executive’s best efforts and
abilities faithfully and diligently to promote the business interests of the
Company. For so long as Executive is employed hereunder, and for a
period of twelve months following the last payment received by Executive from
the Company thereafter (the “Non-Compete Period”),
Executive shall not, directly or indirectly, either as an employee, employer,
consultant, agent, investor, principal, partner, stockholder (except as the
holder of less than 1% of the issued and outstanding stock of a publicly held
corporation), corporate officer or director, or in any other individual or
representative capacity, engage or participate in any business that is in
competition in any manner whatsoever with the business of the Company, as such
business of the Company is now or hereafter conducted.
1.4. Other
Activities. Subject to the foregoing prohibition and provided
such services or investments do not violate any applicable law, regulation or
order, or interfere in any way with the faithful and diligent performance by
Executive of the services to the Company otherwise required or contemplated by
this Agreement, the Company expressly acknowledges that Executive
may:
1.4.1 make
and manage personal business investments of Executive’s choice without
consulting the Board;
1.4.2 serve
in any capacity with any non-profit civic, educational or charitable
organization; and
1.4.3 allocate
time during Company work hours in fulfilling his duties as necessary to
responsibly benefit other non-competing business endeavors, advisory roles,
board service, employment contracts or other functions which Executive may
undertake (and Executive may utilize the Company’s phone, computer and similar
office services in pursuing the foregoing). Should Executive have any
question as to the appropriateness of some outside commitment he is free to seek
guidance, and if necessary approval, from the Chairman and CEO, or the Related
Party Transaction Committee for any clarification or modification to this
Section.
1.5. Covenants of
Executive.
1.5.1 Best
Efforts. Subject to Section 1.4, Executive shall devote his
best efforts to the business and affairs of the Company. Executive
shall perform his duties, responsibilities and functions to the Company
hereunder to the best of his abilities in a diligent, trustworthy, professional
and efficient manner and shall comply, in all material respects, with all rules
and regulations of the Company (and special instructions of the Board, if any)
and all other rules, regulations, guides, handbooks, procedures and policies
applicable to the Company and its business in connection with his duties
hereunder, including all United States federal and state securities laws
applicable to the Company.
1.5.2 Records. Executive
shall use his best efforts and skills to truthfully, accurately, and promptly
prepare, maintain, and preserve all records and reports that the Company may,
from time to time, request or require, fully account for all money, records,
equipment, materials, or other property belonging to the Company of which he may
have custody, and promptly pay and deliver the same whenever he may be directed
to do so by the Board.
1.5.3 Compliance. Executive
shall use his best efforts to cause the Company to remain in compliance with all
rules and regulations of the Securities and Exchange Commission (“SEC”), and reporting
requirements for publicly traded companies, including, without limitation,
assist in the filing with the SEC of all periodic reports the Company is
required to file under the Exchange Act of 1934 (as amended, the “Exchange
Act”). Executive shall at all times comply, and endeavor to
cause the Company to comply, with the then-current good corporate governance
standards and practices as prescribed by the SEC, any exchange on which the
Company’s capital stock or other securities may be traded and any other
applicable governmental entity, agency or
organization. Notwithstanding the foregoing or any other provision
herein to the contrary, the Company agrees and acknowledges that the Executive
is not personally responsible for any filings made with the SEC or any other
governmental agency, and that such filings are the ultimate responsibility of
the Company’s CEO and CFO, who will be responsible for signing any
certifications relating thereto required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
1.5.4 Related Party Transactions
Committee. Promptly following the date hereof, Executive
agrees to assist in the formation of a “Related Party Transaction Committee” of
the Board composed of at least two (2) Independent Directors (as defined below)
of the Company. Such Related Party Transaction Committee shall be
charged with reviewing and approving all of the Company’s related party
transactions or other transactions that might involve a conflict of
interest. Executive agrees that he shall not enter into any related
party transactions without obtaining the pre-approval of at least a majority of
the members of this Committee. For the purposes of this Agreement, an
“Independent Director” means any director of the Company who does not
beneficially own more than 5% of the outstanding voting shares of Company, is
not employed by, or an officer or director of, the Company or any company with
whom Executive is affiliated.
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1.6. Effective
Date. The “Effective Date” of
this Agreement shall be the closing date of the transactions contemplated by
that certain Amended and Restated Agreement and Plan of Merger by and between
World Waste Technologies, Inc., Vertex Energy, L.P., Vertex Energy, Inc.,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Vertex Merger Sub, LLC, dated on or around May 19, 2008,
as amended from time to time.
ARTICLE
II.
COMPENSATION
AND OTHER BENEFITS
2.1. Base
Salary. So long as this Agreement remains in effect, for all
services rendered by Executive hereunder and all covenants and conditions
undertaken by the Parties pursuant to this Agreement, the Company shall pay, and
Executive shall accept, as compensation, an annual base salary (“Base Salary”) of
$150,000. The Base Salary shall be payable in regular installments in
accordance with the normal payroll practices of the Company, in effect from time
to time, but in any event no less frequently than on a monthly basis. For so
long as Executive is employed hereunder, beginning on the first anniversary of
the Effective Date, and on each anniversary thereafter, the Base Salary shall be
increased as determined by the Compensation Committee of the Board (the “Compensation
Committee”), in its sole and absolute discretion.
2.2. Options. As
of the Execution Date of this Agreement, Executive has been granted options to
acquire up to two hundred thousand (200,000) shares of the Company’s common
stock (the “Options”) pursuant to two (2) stock option agreements attached
hereto as Exhibit
B1 and Exhibit
B2. The specific terms of these Options
shall include: (i) the vesting of 25,000 of the Options upon the
Effective Date and the remaining 175,000 options vesting in sixteen (16) equal
increments at each of the sixteen (16) quarterly financial closes subsequent to
the Effective Date of this Agreement, assuming that Executive is employed by the
Company as an officer or Director on such date(s); (ii) full acceleration of all
granted and unvested Options in the event the Company is sold or has any other
change of control event, or in the event Executive is terminated by the Company
for any reason other than for Cause as defined in Section 3.2.1
herein.
2.3. Bonus
Compensation. For each year this Agreement is in effect,
Executive will be eligible to earn a bonus in the sole discretion of the
Compensation Committee.
2.4. Business
Expenses. So long as this Agreement is in effect, the Company
shall reimburse Executive for all reasonable, out-of-pocket business expenses
incurred in the performance of his duties hereunder consistent with the
Company’s policies and procedures, in effect from time to time, with respect to
travel, entertainment, communications, technology/equipment and other business
expenses customarily reimbursed to senior executives of the Company in
connection with the performance of their duties on behalf of the
Company.
2.5. Vacation. Executive
will be entitled to 15 days of paid time-off (PTO) per year. PTO days shall
accrue beginning on the 1st of January for each year during the term of this
Agreement. Unused PTO days shall expire on December 31 of each year and shall
not roll over into the next year. Other than the use of PTO days for illness or
personal emergencies, PTO days must be pre-approved by the Company.
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2.6. Other
Benefits. Executive shall be entitled to participate in the
Company’s employee stock option plan, life, health, accident, disability
insurance plans, pension plans and retirement plans, in effect from time to time
(including, without limitation, any incentive program or discretionary bonus
program of the Company which may be implemented in the future by the Board), to
the extent and on such terms and conditions as the Company customarily makes
such plans available to its senior executives.
2.7. Withholding. The
Company may deduct from any compensation payable to Executive (including
payments made pursuant to this Section 2 or in connection with the
termination of employment pursuant to Article III of this Agreement) amounts
sufficient to cover Executive’s share of applicable federal, state and/or local
income tax withholding, social security payments, state disability and other
insurance premiums and payments.
ARTICLE
III.
TERMINATION
OF EMPLOYMENT
3.1. Termination of
Employment. Executive’s employment pursuant to this Agreement
shall terminate on the earliest to occur of the following:
3.1.1 upon
the death of Executive;
3.1.2 upon
the delivery to Executive of written notice of termination by the Company if
Executive shall suffer a physical or mental disability which renders Executive,
in the reasonable judgment of the Compensation Committee, unable to perform his
duties and obligations under this Agreement for either 90 consecutive days or
180 days in any 12-month period;
3.1.3 upon
the expiration of the Initial Term, unless a notice of termination pursuant to
Section 1.1 is not given by either party, in which case upon the expiration of
the first Automatic Renewal Term that such a notice of termination is given with
respect to either party (if any);
3.1.4 upon
delivery to the Company of written notice of termination by Executive for any
reason other than for Good Reason;
3.1.5 upon
delivery to Executive of written notice of termination by the Company for
Cause;
3.1.6 upon
delivery of written notice of termination from Executive to the Company for Good
Reason, provided, however, prior to any
such termination by Executive pursuant to this Section 3.1.6, Executive shall
have advised the Company in writing within fifteen (15) days of the occurrence
of any circumstances that would constitute Good Reason, and the Company has not
cured such circumstances within 15 days following receipt of Executive’s written
notice, with the exception of only five (5) days written notice in the event the
Company reduces Executive’s salary without Executive’s Consent, or fails to pay
Executive any compensation due him; or
3.1.7 upon
delivery to Executive of written notice of termination by the Company without
Cause.
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3.2. Certain Definitions.
For purposes of this Agreement, the following terms shall have the following
meanings:
3.2.1 “Cause” shall mean, in
the context of a basis for termination by the Company of Executive’s employment
with the Company, that:
(i) Executive
materially breaches any obligation, duty, covenant or agreement under this
Agreement, which breach is not cured or corrected within thirty (30) days
of written notice thereof from the Company (except for breaches of Article IV of
this Agreement, which cannot be cured and for which the Company need not give
any opportunity to cure); or
(ii) Executive
commits any material act of misappropriation of funds or embezzlement;
or
(iii) Executive
commits any material act of fraud; or
(iv) Executive
is convicted of, or pleads guilty or nolo contendere with respect
to, theft, fraud, a crime involving moral turpitude, or a felony under federal
or applicable state law.
3.2.2 “Good Reason” shall
mean, in the context of a basis for termination by Executive of his employment
with the Company (a) without Executive’s consent, his position or duties are
modified by the Company to such an extent that his duties are no longer
consistent with the position of Chief Operating Officer of the Company, (b)
there has been a material breach by the Company of a material term of
this Agreement or Executive believes that the Company is violating any law which
would have a material adverse effect on the Company’s operations and such
violation continues uncured following thirty (30) days after written notice of
such violation or breach by the Company, (c) Executive’s compensation as set
forth hereunder is reduced without Executive’s consent, (d) Executive
is forced by the Company to permanently move more than thirty (30) miles from
his current location, or (e) the Company fails to pay to Executive any
compensation due to him hereunder upon five (5) days written notice from
Executive informing the Company of such failure.
3.3. “Termination Date”
shall mean the date on which Executive’s employment with the Company hereunder
is terminated
3.4. Effect of
Termination. In the event that Executive’s employment
hereunder is terminated in accordance with the provisions of this Agreement,
Executive shall be entitled to the following:
3.4.1 If
Executive’s employment is terminated pursuant to Sections 3.1.1 (death), 3.1.2
(disability), 3.1.3 (two-year anniversary without mutual extension), 3.1.5 (by
the Company for Cause), or 3.1.4 (without Cause by the Executive), Executive
shall be entitled to salary accrued through the Termination Date, including but
not limited to any Options which have vested as of the Termination
Date, and no other benefits other than as required under the terms of
employee benefit plans in which Executive was participating as of Termination
Date.
3.4.2 If
Executive’s employment is terminated pursuant to Section 3.1.7 (without Cause by
the Company) or by Executive pursuant to Section 3.1.6 (Good Reason), Executive
shall be entitled to salary accrued through the Termination Date and to continue
to receive salary at the rate in effect upon the Termination Date of employment
for (a) three months after the Termination Date if this Agreement is terminated
during the first twelve (12) months of the Initial Term, or (b) six months after
the Termination Date if this Agreement is terminated following the expiration of
the first twelve (12) months of the Initial Term; payable in accordance with the
Company’s normal payroll practices and policies, as if Executive’s employment
had not terminated. Any unvested Options held by Executive shall
immediately vest as of the Termination Date of this
Agreement. Executive shall be entitled to no other post-employment
benefits except for benefits payable under applicable benefit plans in which
Executive is entitled to participate pursuant to Section 2.5 hereof through the
Termination Date, subject to and in accordance with the terms of such
plans.
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3.4.3 As
a condition to Executive’s right to receive any benefits pursuant to Section 3.4
of this Agreement, (A) Executive must execute and deliver to the Company a
written release in customary form and substance reasonably satisfactory to the
Company, of any and all claims against the Company and all directors and
officers of the Company with respect to all matters arising out of Executive’s
employment hereunder, or the termination thereof (other than claims for
entitlements under the terms of this Agreement or plans or programs of the
Company in which Executive has accrued a benefit); and (B) Executive must not
breach any of his covenants and agreements under Section 1.3 and Article IV of
this Agreement, which continue following the Termination Date.
3.4.4 Upon
termination of Executive’s employment hereunder, or on demand by the Company
during the term of this Agreement, Executive will promptly deliver to the
Company, and will not keep in his possession, recreate or deliver to anyone
else, any and all Company property, as well as all devices and equipment
belonging to the Company (including computers, handheld electronic devices,
telephone equipment, and other electronic devices), Company credit cards,
records, data, notes, notebooks, reports, files, proposals, lists,
correspondence, specifications, drawings blueprints, sketches, materials,
photographs, charts, all documents and property, and reproductions of any of the
aforementioned items that were developed by Executive pursuant to his employment
with the Company, obtained by Executive in connection with his employment with
the Company, or otherwise belonging to the Company, its successors or assigns,
including, without limitation, those records maintained pursuant to this
Agreement.
3.4.5 Executive
also agrees to keep the Company advised of his home and business address for a
period of twelve (12) months after termination of Executive’s employment
hereunder, so that the Company can contact Executive regarding his continuing
obligations provided by this Agreement. In the event that Executive’s
employment hereunder is terminated, Executive agrees to grant consent to
notification by the Company to Executive’s new employer about his obligations
under this Agreement.
3.5. Consulting. During
the period that Executive is receiving payments pursuant to
subsection 3.4.2 above, Executive shall be available, subject to his other
reasonable commitments or obligations made or incurred in mitigation of the
termination of his employment, by telephone, email or fax, as a consultant to
the Company, without further compensation, to consult with its officers and
directors regarding projects and/or tasks as defined by the Board.
3.6. No Duty to
Mitigate. Executive shall not be required to seek other
employment or take other action in order to mitigate his damages or to be
entitled to any of the payments, benefits, expenses, and stock options
above. The Company shall not be entitled to set off against any such
payments, benefits, expenses, and stock options due or any other amounts of
money payable to Executive any amounts he earns in other employment or
engagement after the termination of his employment with the Company or any
amounts that he might or could have earned in other employment or engagement had
he sought such other employment or engagement.
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ARTICLE
IV.
INVENTIONS;
CONFIDENTIAL/TRADE SECRET INFORMATION AND RESTRICTIVE COVENANTS
4.1. Inventions. All
processes, technologies and inventions relating to the business of the Company
(collectively, “Inventions”),
including new contributions, improvements, ideas, discoveries, trademarks and
trade names, conceived, developed, invented, made or found by Executive, alone
or with others, during his employment by the Company, whether or not patentable
and whether or not conceived, developed, invented, made or found on the
Company’s time or with the use of the Company’s facilities or materials, shall
be the property of the Company and shall be promptly and fully disclosed by
Executive to the Company. Executive shall perform all necessary acts
(including, without limitation, executing and delivering any confirmatory
assignments, documents or instruments requested by the Company) to assign or
otherwise to vest title to any such Inventions in the Company and to enable the
Company, at its sole expense, to secure and maintain domestic and/or foreign
patents or any other rights for such Inventions.
4.2. Confidential/Trade Secret
Information/Non-Disclosure.
4.2.1 Confidential/Trade Secret
Information Defined. During the course of Executive’s
employment, Executive will have access to various Confidential/Trade Secret
Information of the Company and information developed for the
Company. For purposes of this Agreement, the term “Confidential/Trade Secret
Information” is information that is not generally known to the public
and, as a result, is of economic benefit to the Company in the conduct of its
business, and the business of the Company’s subsidiaries. Executive
and the Company agree that the term “Confidential/Trade Secret
Information” includes but is not limited to all information developed or
obtained by the Company, including its affiliates, and predecessors, and
comprising the following items, whether or not such items have been reduced to
tangible form (e.g., physical writing, computer hard drive, e-mail, disk, tape,
etc.): all methods, techniques, processes, ideas, research and
development, product designs, engineering designs, plans, models, production
plans, business plans, add-on features, trade names, service marks, slogans,
forms, pricing structures, menus, business forms, marketing programs and plans,
layouts and designs, financial structures, operational methods and tactics, cost
information, the identity of and/or contractual arrangements with suppliers
and/or vendors, accounting procedures, and any document, record or other
information of the Company relating to the above. Confidential/Trade
Secret Information includes not only information directly belonging to the
Company which existed before the date of this Agreement, but also information
developed by Executive for the Company, including its subsidiaries, affiliates
and predecessors, during the term of Executive’s employment with the
Company. Confidential/Trade Secret Information does not include any
information which (a) was in the lawful and unrestricted possession of Executive
prior to its disclosure to Executive by the Company, its subsidiaries,
affiliates or predecessors, (b) is or becomes generally available to the public
by lawful acts other than those of Executive after receiving it, or (c) has been
received lawfully and in good faith by Executive from a third party who is not
and has never been an executive of the Company, its subsidiaries, affiliates or
predecessors, and who did not derive it from the Company, its subsidiaries,
affiliates or predecessors.
4.2.2 Restriction on Use of
Confidential/Trade Secret Information. Executive agrees that
his/her use of Confidential/Trade Secret Information is subject to the following
restrictions for an indefinite period of time so long as the Confidential/Trade
Secret Information has not become generally known to the public:
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(i) Non-Disclosure. Executive
agrees that he will not publish or disclose, or allow to be published or
disclosed, Confidential/Trade Secret Information to any person without the prior
written authorization of the Company unless pursuant to or in connection with
Executive’s job duties to the Company under this Agreement; and
(ii) Non-Removal/Surrender. Executive
agrees that he will not remove any Confidential/Trade Secret Information from
the offices of the Company or the premises of any facility in which the Company
is performing services, except pursuant to his duties under this
Agreement. Executive further agrees that he shall surrender to the
Company all documents and materials in his possession or control which contain
Confidential/Trade Secret Information and which are the property of the Company
upon the termination of his employment with the Company, and that he shall not
thereafter retain any copies of any such materials.
4.2.3 Prohibition Against Unfair
Competition/ Non-Solicitation of Customers. Executive agrees
that at no time after his employment with the Company will he engage in
competition with the Company while making any use of the Confidential/Trade
Secret Information, or otherwise exploit or make use of the Confidential/Trade
Secret Information. Executive agrees that during the six-month period following
the Termination Date, he will not directly or indirectly accept or solicit, in
any capacity, the business of any customer of the Company with whom Executive
worked or otherwise had access to the Confidential/Trade Secret Information
pertaining to the Company’s business with such customer during the last year of
Executive’s employment with the Company, or solicit, directly or indirectly, or
encourage any of the Company’s customers or suppliers to terminate their
business relationship with the Company, or otherwise interfere with such
business relationships.
4.3. Non-Solicitation of
Employees. Employee agrees that during the twelve-month period
following the Termination Date, he shall not, directly or indirectly, solicit or
otherwise encourage any employees of the Company to leave the employ of the
Company, or solicit, directly or indirectly, any of the Company’s employees for
employment.
4.4. Non-Solicitation During
Employment. During his employment with the Company, Executive
shall not: (a) interfere with the Company’s business relationship with its
customers or suppliers, (b) solicit, directly or indirectly, or otherwise
encourage any of the Company’s customers or suppliers to terminate their
business relationship with the Company, or (c) solicit, directly or indirectly,
or otherwise encourage any employees of the Company to leave the employ of the
Company, or solicit any of the Company’s employees for employment.
4.5. Conflict of
Interest. During Executive’s employment with the Company,
Executive must not knowingly engage in any work, paid or unpaid, that creates an
actual conflict of interest with the Company. If the Company or the
Executive have any question as to the actual or apparent potential for a
conflict of interest, either shall raise the issue formally to the other, and if
appropriate and necessary the issue shall be put to the Related Party
Transaction Committee for consideration and disposal.
4.6. Breach of
Provisions. If Executive materially breaches any of the
provisions of this Article IV, or in the event that any such breach is
threatened by Executive, in addition to and without limiting or waiving any
other remedies available to the Company at law or in equity, the Company shall
be entitled to immediate injunctive relief in any court, domestic or foreign,
having the capacity to grant such relief, to restrain any such breach or
threatened breach and to enforce the provisions of this Article IV.
4.7. Reasonable
Restrictions. The Parties acknowledge that the foregoing
restrictions, as well as the duration and the territorial scope thereof as set
forth in this Article IV, are under all of the circumstances reasonable and
necessary for the protection of the Company and its business
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4.8. Specific
Performance. Executive acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach of any of the
provisions of Sections 1.3, 4.2, 4.3 or 4.4 hereof would be inadequate and, in
recognition of this fact, Executive agrees that, in the event of such a breach
or threatened breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be
available.
ARTICLE
V.
ARBITRATION
5.1. Scope. To
the fullest extent permitted by law, Executive and the Company agree to the
binding arbitration of any and all controversies, claims or disputes between
them arising out of or in any way related to this Agreement, the employment
relationship between the Company and Executive and any disputes upon termination
of employment, including but not limited to breach of contract, tort,
discrimination, harassment, wrongful termination, demotion, discipline, failure
to accommodate, family and medical leave, compensation or benefits claims,
constitutional claims; and any claims for violation of any local, state or
federal law, statute, regulation or ordinance or common law. For the
purpose of this agreement to arbitrate, references to “Company” include all
subsidiaries or related entities and their respective executives, supervisors,
officers, directors, agents, pension or benefit plans, pension or benefit plan
sponsors, fiduciaries, administrators, affiliates and all successors and assigns
of any of them, and this agreement to arbitrate shall apply to them to the
extent Executive’s claims arise out of or relate to their actions on behalf of
the Company.
5.2. Arbitration
Procedure. To commence any such arbitration proceeding, the
party commencing the arbitration must provide the other party with written
notice of any and all claims forming the basis of such right in sufficient
detail to inform the other party of the substance of such claims. In
no event shall this notice for arbitration be made after the date when
institution of legal or equitable proceedings based on such claims would be
barred by the applicable statute of limitations. The arbitration will
be conducted in a neutral location, by a single neutral arbitrator and in
accordance with the then-current rules for resolution of employment disputes of
the American Arbitration Association (“AAA”). The
Arbitrator and location are to be selected by the mutual agreement of the
Parties. If the Parties cannot agree, the Superior Court will select
the arbitrator. The parties are entitled to representation by an
attorney or other representative of their choosing. The arbitrator
shall have the power to enter any award that could be entered by a judge of the
trial court of the presiding State, and only such power, and shall follow the
law. The award shall be binding and the Parties agree to abide by and
perform any award rendered by the arbitrator. The arbitrator shall
issue the award in writing and therein state the essential findings and
conclusions on which the award is based. Judgment on the award may be
entered in any court having jurisdiction thereof. Each Party in the
arbitration hearing shall bear its own costs of the arbitration filing and
hearing fees and the losing Party shall bear the cost of the
arbitrator.
ARTICLE
VI.
MISCELLANEOUS
6.1. Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective legal representatives, heirs,
successors and assigns. Executive may not assign any of his rights or
obligations under this Agreement. The Company may assign its rights
and obligations under this Agreement to any successor entity with the written
agreement of the Executive.
6.2. Notices. Any
notice provided for herein shall be in writing and shall be deemed to have been
given or made (a) when personally delivered or (b) when sent by telecopier and
confirmed within 48 hours by letter mailed or delivered to the party to be
notified at its or his address set forth herein; or three (3) days after being
sent by registered or certified mail, return receipt requested (or by equivalent
▇▇▇▇▇▇▇ with delivery documentation such as FEDEX or UPS) to the address of the
other party set forth or to such other address as may be specified by notice
given in accordance with this section 6.2:
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|
If to the Company:
|
Vertex
Energy, Inc.
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If to the Executive:
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Telephone:
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Facsimile:
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Attention:
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6.3. Severability. If
any provision of this Agreement, or portion thereof, shall be held invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall attach only to such provision or portion thereof, and
shall not in any manner affect or render invalid or unenforceable any other
provision of this Agreement or portion thereof, and this Agreement shall be
carried out as if any such invalid or unenforceable provision or portion thereof
were not contained herein. In addition, any such invalid or
unenforceable provision or portion thereof shall be deemed, without further
action on the part of the parties hereto, modified, amended or limited to the
extent necessary to render the same valid and enforceable.
6.4. Waiver. No
waiver by a Party of a breach or default hereunder by the other party shall be
considered valid, unless expressed in a writing signed by such first party, and
no such waiver shall be deemed a waiver of any subsequent breach or default of
the same or any other nature.
6.5. Entire
Agreement. This Agreement, including the Exhibits hereto, sets
forth the entire agreement between the Parties with respect to the subject
matter hereof, and supersedes any and all prior agreements between the Company
and Executive, whether written or oral, relating to any or all matters covered
by and contained or otherwise dealt with in this Agreement.
6.6. Amendment. No
modification, change or amendment of this Agreement or any of its provisions
shall be valid, unless in writing signed by the Parties and approved by the
Compensation Committee.
6.7. Authority. The
Parties each represent and warrant that it/he has the power, authority and right
to enter into this Agreement and to carry out and perform the terms, covenants
and conditions hereof.
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6.8. Attorneys’
Fees. If either party hereto commences an arbitration or other
action against the other party to enforce any of the terms hereof or because of
the breach by such other party of any of the terms hereof, the prevailing party
shall be entitled, in addition to any other relief granted, to all actual
out-of-pocket costs and expenses incurred by such prevailing party in connection
with such action, including, without limitation, all reasonable attorneys’ fees,
and a right to such costs and expenses shall be deemed to have accrued upon the
commencement of such action and shall be enforceable whether or not such action
is prosecuted to judgment.
6.9. Captions. The
captions, headings and titles of the sections of this Agreement are inserted
merely for convenience and ease of reference and shall not affect or modify the
meaning of any of the terms, covenants or conditions of this
Agreement.
6.10. Governing
Law. This Agreement, and all of the rights and obligations of
the Parties in connection with the employment relationship established hereby,
shall be governed by and construed in accordance with the substantive laws of
the State of Texas without giving effect to principles relating to conflicts of
law.
6.11. Survival. The
termination of Executive’s employment with the Company pursuant to the
provisions of this Agreement shall not affect Executive’s obligations to the
Company hereunder which by the nature thereof are intended to survive any such
termination, including, without limitation, Executive’s obligations under
Section 1.3 and Article IV of this Agreement.
6.12. Termination of this
Agreement. Either Party may terminate this Agreement in the
event that the Effective Date has not occurred by June 30, 2009.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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“COMPANY”
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VERTEX
ENERGY, INC.,
a
Nevada corporation
By:
/s/
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Name:
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Title:
President
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“EXECUTIVE”
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/s/
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EXHIBIT
A
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1.
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Executive
shall report to the Chairman and CEO and work closely with the management
team.
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2.
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Executive
shall serve as Chief Operating
Officer.
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3.
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Will
develop Company structure, organization, personnel, systems consistent to
accommodate the Company’s expected rapid
growth.
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4.
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Operations
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a.
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Responsible
for the effective operational management of the Company including full
responsibility for the Company’s profit and loss
statement.
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b.
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Will
establish appropriate operating metrics and reporting systems for managers
and divisions which enable top management to understand the performance
and trends in each business unit.
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c.
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Will
develop a “dashboard reporting system” which compiles and monitors weekly
or daily operating performance into a simple to consume numerical and
graphic format.
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5.
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Strategy
and Acquisitions
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a.
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Shall
work closely with management team to develop and implement corporate
growth strategy.
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b.
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Will
document and communicate Vertex strategy for external and internal
audiences.
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c.
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Shall
work closely with the acquisition team and will lead all general screening
and due diligence efforts on potential acquisitions. Also will
assist in the proper structuring and financing of acquisition
transactions. Will lead certain acquisition efforts and will
develop a system for rapidly screening and performing diligence on
potential acquisitions.
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d.
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Will
lead all post-merger integration efforts to incorporate acquisitions into
Vertex systems as quickly and seamlessly as
possible.
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6.
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Financial
Operations
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a.
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Responsible
for the hiring, staffing, training and management of the financial
accounting and financial planning units of the
Company.
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b.
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Will
organize the financial operations of the Company to ensure the accurate
and zero-defect public reporting process for compliance with all aspects
of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and Section 404
compliance.
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c.
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Will
manage the financial planning and analysis unit to develop budgets and
cash requirements to execute the Vertex Growth
Plan.
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7.
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Vertex
Thermo-Chemical Process and Project Development
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a.
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Will
gain detailed understanding of the Vertex Thermo-Chemical process(es) and
lead the efforts to commercialize the technology and developing a
repeatable process for multi-site
rollout.
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b.
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Will
produce a plan to maximize the effectiveness and rapid delivery of the T-C
process expansion in Baytown, Texas. This includes, but is not
limited to:
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i.
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Proper
process engineering and
specifications.
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ii.
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Technical
steps and applied research to improve the throughput and finished goods
quality.
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iii.
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Providing
robust protection of Vertex’s intellectual
property.
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iv.
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A
rough strategy for the market-by-market rollout of the Vertex T-C
process(es) for rapid nationwide deployment. This will be
integrated with the Acquisition Plan to maximize Vertex effectiveness and
speed to market.
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c.
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Responsible
for managing the diligence activities on any project development
opportunities that the Company
considers.
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EXHIBIT
B
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