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EXHIBIT 10.17
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), made and entered into as of
the 18th day of November 1996, by and between COMMODORE ENVIRONMENTAL SERVICES,
INC., a Delaware corporation having offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual
residing at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Employee").
WITNESSETH:
WHEREAS, the Employee has substantial knowledge and experience relating
to the management and operation of technology-driven developmental businesses,
and the Company desires to obtain the full-time services of the Employee to
serve in a senior executive capacity with the Company; and
WHEREAS, the Employee is ready, willing and able to serve as a senior
executive officer of the Company, 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:
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 Company in the capacities and with the titles of Executive Chairman and
Chief Executive Officer of the Company. In addition, the Employee shall serve in
such capacity and have such title with such
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of the Company's subsidiaries as may be requested from time to time by the
Company, without requirement of any additional compensation to the Employee,
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. Director. The Company will cause the Employee to remain a
member of the Board of Directors of the Company and each of its publicly-traded
subsidiaries, for so long as the Employee remains the Company's Executive
Chairman and Chief Executive Officer.
4. 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 or his fiduciary duties as the
Executive Chairman and Chief Executive Officer 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 President and
Chief Operating Officer 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.
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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 November 18,
1996 and shall continue through and including December 31, 1999 (the "Term").
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:
(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
(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); 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
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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 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.
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Part C. Compensation: Expenses.
1. Base Salary. (a) For the first year (ending December 31, 1997)
during which this Agreement is in force, the Employee's annual salary shall be
$395,000, (b) for the second year (ending December 31, 1998), the Employee's
annual salary shall be not less than $434,500, and (c) for the third year
(ending December 31, 1999), the Employee's annual salary shall be not less than
$477,950.
2. Signing Bonus. As a signing bonus, upon the commencement of
this Agreement, the Employee shall be (a) paid $150,000 in cash and (b) granted
stock options to purchase 950,000 shares of common stock, par value $.01 per
share, of the Company (the "Common Stock"). The Company further agrees to pay
the Employee up to $225,000 of any tax liability that arises out of payments
made to the Employee or stock options granted to the Employee under this Part C
of this Agreement. Any payments required to be made under this Section 2 will be
made in advance of the Employee's need for such funds, but in no event sooner
than March 31, 1997, provided that (i) the Employee shall give the Company
reasonable notice in advance of his need for such funds and (ii) the Employee
shall present to the Company all supporting documentation therefor, including,
without limitation, copies of his tax returns.
3. Company Stock Options. In consideration for the Employee's
entering into this Agreement with the Company, in addition to the stock options
under paragraph 2 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 2,500,000 shares of Common Stock at an exercise price per share
equal to the closing sale or bid price of the Common Stock as reported or quoted
on the OTC Bulletin Board, Nasdaq Stock Market or American Stock Exchange, as
the case may
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be, 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 500,000 shares of Common Stock commencing on
the first anniversary of the date hereof (the "Initial Vesting Date") and as to
an additional 500,000 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. In addition, the Company
acknowledges and agrees that the stock options to purchase 500,000 shares of
Common Stock at an exercise price of $.53 per share currently held by the
Employee will vest effective as of the date of this Agreement.
4. Subsidiary stock Options. As additional consideration for the
Employee's entering into this Agreement with the Company, the Company will from
time to time in the future grant to the Employee five-year stock options to
purchase common stock of each publicly-traded subsidiary of the Company in the
amount of 1.00% of such subsidiary's total outstanding shares of common stock on
the date that such subsidiary's stock is first publicly traded (giving effect,
however, to dilution of the securities then being offered), in each case at an
exercise price per share equal to the then-current fair market value per share
on such date.
5. Incentive Compensation. The Employee will be entitled to
receive incentive compensation of up to $225,000 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.
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6. 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.
7. Automobile Expenses. The Company shall provide the Employee
with the full-time use of an automobile and shall be reimbursed by the Company,
upon presentment of appropriate receipts and/or vouchers therefor, for all
reasonable expenses related to such automobile, including but limited to,
insurance, maintenance and garage. The Employee shall be responsible for any
taxes payable by reason of the use and receipt of such automobile and
reimbursements.
8. Relocation Expense. As of the date hereof, the Employee
maintains his primary residence in Florida, while the Company's headquarters are
maintained in New York. Each of the Company and the Employee agrees that a
relocation of the Employee's primary residence to the area of the Company's
headquarters (a "Relocation") may be required, in which event the Employee
agrees to effect such Relocation as expeditiously as possible. During the Term,
and until Relocation, if any, is effected, the Company shall provide the
Employee, at the Company's cost, with appropriate living quarters in the New
York metropolitan area. If Relocation is required, the Company shall reimburse
the Employee for all of his reasonable expenses customarily incurred in
connection with (i) selling the Employee's present primary residence (including
customary commission on such sale), (ii) purchasing and occupying a new primary
residence and (iii) moving the Employee, his family and their physical assets.
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9. 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.
10. 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.
Part D. Confidentially: 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 Company, 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 Company and its subsidiaries and divisions (whether now
known or hereafter learned by the Employee), except
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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 Company or a Committee thereof, or by the Chairman of
the Company, to disclose such confidential information, (iv) such information is
provided to a customer of the Company 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 Company.
(a) Except as otherwise provided herein, all lists,
records and other non-personal documents or papers (and all copies thereof)
relating to the Company and/or any of its subsidiaries or divisions, including
such items stored in computer memories, on 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 Company, and shall be delivered
to the Company 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 Company 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 Company or the subject
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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 Company; provided,
however, that nothing herein contained shall be deemed to grant to the Company
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 Company.
3. Employees of the Company. 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 Company in each instance.
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
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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 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.
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Part E. Miscellaneous.
1. 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.
2. 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 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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Citicorp Center,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
3. 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.
4. 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.
5. Governing Law. This Agreement, and all matters of 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.
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6. 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.
7. 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 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.
8. 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.
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(c) The Company shall have the right, at any time and
from tune 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 Company of its
duties and obligations to the Employee hereunder, without the prior written
consent of the Employee.
9. 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/ Bentley ▇. ▇▇▇▇
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Bentley ▇. ▇▇▇▇
Chairman of the Board
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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