EMPLOYMENT AGREEMENT
EFFECTIVE DATE: September 22, 1994
EMPLOYER: DYNECO CORPORATION, a Minnesota corporation.
EMPLOYEE: RICHARD D. BESSER
PURPOSE: Employer is in the business of compressors and the
technology pertaining thereto and Employer desires to employ Employee for the
purposes and subject to the terms and conditions set out hereafter.
AGREEMENTS: Employer and Employee hereby mutually agree as follows:
1. EMPLOYMENT: DUTIES.
1.1 EMPLOYMENT. Employer employs Employee and Employee accepts
employment with Employer. During the term of employment hereunder, Employee
shall serve as the Chairman, Chief Executive Officer and President of Employer
and shall perform such services not inconsistent with his position and hold such
offices in Employer to which from time to time he may be elected or appointed.
1.2 DUTIES. The scope of Employee's duties and responsibilities
shall be the following:
(a) Subject to Section 1.3 hereof, Employee's principal area of
responsibility shall be to perform as the Chairman, Chief Executive Officer and
President of Employer, and he shall perform for Employer such duties as are
mutually agreed by Employee and the Board of Directors of Employer from time to
time.
(b) Employee's duties shall be performed at whatever location
Employee deems appropriate.
1.3 PARTIAL RELINQUISHMENT OF DUTIES. During the term of employment
hereunder, Employee in his sole discretion and at his sole election, may
relinquish his duties of President of Employer in favor of a person selected by
Employee and hired and appointed by Employer's Board of Directors, which hiring
and appointment shall not be unreasonably withheld or declined.
1.4 NON-EMPLOYER ACTIVITIES. During the term of this Agreement,
Employee may, without limitation, serve on corporate, civic or charitable boards
or committees, deliver lectures, fulfill speaking engagements or teach at
educational institutions, serve as an officer or
manager of one or more entities, and manage personal investments. None of
such activities shall be prohibited by this Agreement.
2. TERM. This Agreement shall become effective on the Effective Date set
forth above and continue for a period ending December 31, 1999, unless
terminated sooner by either of the parties hereto, or by mutual agreement of the
parties, pursuant to Section 6 of this Agreement.
3. COMPENSATION. As his compensation during the term of this Agreement,
Employee shall have and receive, subject to applicable tax withholding, the
following:
3.1 SALARY. Employee's base salary under this Agreement will be One
Hundred Fifty-Six Thousand Dollars ($156,000.00) per annum gross pay, payable in
substantially equal regular periodic payments in accordance with Employer's
regular payroll practices. Such base salary may be increased (but not
decreased) by the Board of Directors of Employer from time to time during the
term hereof with each increase becoming Employee's new base salary under this
Agreement for the remainder of the term hereof or until the next increase in
base salary, if any. Notwithstanding the foregoing, in the event Employee
relinquishes his duties of President of Employer pursuant to Section 1.3 hereof,
Employee's base salary during any period in which Employee is not serving as
President shall be automatically reduced to two-thirds of his base salary then
in effect but never less than One Hundred Four Thousand Dollars ($104,000.00)
per annum. During the period September 22, 1994 through June 30, 1995, one
third of Employee's base salary (i.e., $52,000.00) shall be paid in the form of
fully paid and nonassessable shares of common stock of Employer, based upon an
agreed value of Three Dollars ($3.00) per share, and the remaining two-thirds of
such base salary (i.e., $104,000.00) shall be paid in the form of cash.
Commencing July 1, 1995, Employee's base salary shall be paid solely in the form
of cash.
3.2 RESTRICTED STOCK.
(a) SALE AND PURCHASE. Employer agrees to sell and Employee
agrees to purchase from Employer, at such time(s) during the term of this
Agreement as Employee shall specify to Employer, Two Hundred Fifty Thousand
(250,000) shares of common stock of Employer at a price of $.01 per share
(hereinafter referred to as the "Restricted Shares" or, with respect to a single
share thereof, "Restricted Share").
(b) GENERAL RESTRICTIONS. In the event EITHER Employer
terminates Employee's employment for Cause pursuant to Section 6.2 hereof OR
Employee terminates his employment for any reason other than death, disability,
mutual agreement with Employer, or those reasons specified in Section 6.3
hereof, then Employer may, at any time within the one hundred twenty (120) day
period following Employee's termination of employment, purchase from Employee at
the "Restricted Share Price" (as hereafter defined), the applicable number of
Restricted Shares determined as follows:
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Number of Restricted Shares
If Employee's Termination that May Be Purchased from
of Employment Occurs Employee by Employer
---------------------------- -----------------------------
Before September 23, 1996 150,000
After September 22, 1996, but
before September 23, 1997 75,000
After September 22, 1997, but
before September 23, 1998 25,000
After September 22, 1998 0
As used herein, the term "Restricted Share Price" means with respect to each
Restricted Share the greater of (i) $.01 or (ii) fifty percent (50%) of the last
quoted ask price per share of common stock of Employer as reported by the NASDAQ
on the date of Employee's termination of employment.
(c) RESTRICTIONS ON TRANSFER. The Restricted Shares issued
herein have not been registered under the Securities Act of 1933. These Shares
may not be transferred by Employee (i) unless there is an effective registration
covering the Restricted Shares under the Securities Act of 1933 and applicable
state securities laws, (ii) unless Employer receives an opinion of legal
counsel, acceptable to Employer, that the transfer of the Restricted Shares
complies with the requirements of the Securities Act of 1933 and any relevant
state securities law, or (iii) unless the transfer is made pursuant to Rule 144
under the Securities Act of 1933. Subject to the foregoing, Employee is
permitted to transfer the following number of Restricted Shares with respect to
each of the following dates:
Number of Restricted Shares
Permitted to be
Date Transferred by Employee
---- ---------------------------
Before September 23, 1996 100,000 shares
After September 22, 1996, but
before September 23, 1997 175,000 shares
After September 22, 1997, but
before September 23, 1998 200,000 shares
After September 22, 1998 All shares
(d) ENDORSEMENT OF CERTIFICATES. Each certificate representing
Restricted Shares now, or hereafter, held by Employee shall be inscribed
substantially as follows:
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THE TRANSFER OF THE SHARES OF DYNECO CORPORATION COMMON
STOCK REPRESENTED BY THIS CERTIFICATE IS RESTRICTED UNDER
THE TERMS OF AN EMPLOYMENT AGREEMENT EFFECTIVE SEPTEMBER 22,
1994, A COPY OF WHICH IS ON FILE AT THE OFFICES OF DYNECO
CORPORATION.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. DYNECO CORPORATION WILL
NOT TRANSFER THIS CERTIFICATE UNLESS (I) THERE IS AN
EFFECTIVE REGISTRATION COVERING THE SHARES REPRESENTED BY
THIS CERTIFICATE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ALL APPLICABLE STATE SECURITIES LAWS, OR (II)
IT FIRST RECEIVES A LETTER FROM LEGAL COUNSEL, ACCEPTABLE TO
THE CORPORATION, STATING THAT IN THE OPINION OF SUCH LEGAL
COUNSEL THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND UNDER ALL
APPLICABLE STATE SECURITIES LAWS, OR (III) THE TRANSFER IS
MADE PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.
(e) VOTING RIGHTS. The Restricted Shares shall be considered to
be issued and outstanding shares and Employee shall enjoy all voting rights
accorded to all other issued and outstanding shares of Employer.
(f) PARTICIPATION IN DISTRIBUTIONS. The Restricted Shares shall
be considered to be issued and outstanding shares and Employee shall enjoy all
distribution privileges accorded to all other issued and outstanding shares of
Employer.
(g) DISTRIBUTIONS ON DISSOLUTION OR LIQUIDATION. In the event
of dissolution of Employer, or the partial or complete liquidation of all or
substantially all of Employer's assets, or in the event of bankruptcy or
insolvency of Employer, the Restricted Shares shall enjoy all of the rights and
privileges accorded to all other issued and outstanding shares of Employer.
(h) SHARE SPLITS OR OTHER RECLASSIFICATION. Any shares issued
to Employee pursuant to a share split or reclassification of Restricted Shares
shall also be subject to the terms and conditions hereof. Similarly, any and
all distributions of shares issued by the reason of ownership of such Restricted
Shares, shall likewise be subject to the terms and conditions hereof.
(i) ADDITIONAL REQUIREMENTS. In order to ensure performance
hereunder and to implement the provisions hereof, Employer and Employee shall
take whatever action and do such things as may be required or necessary so to
do, which may include, but shall not be limited to, the registration of the
Restricted Shares under the Securities Act of 1933 upon Employee's written
request, issuance of additional shares, surrender of shares, and making such
reports and furnishing such information as shall be deemed advisable or
necessary.
4. BENEFITS AND VACATIONS. During the term of this Agreement Employee
shall be entitled to participate in all tax-qualified retirement plans and other
employee benefit plans, practices, policies and programs (including holidays)
provided by Employer to the extent
applicable generally to other employees of Employer. In addition, during the
term of this Agreement Employee shall be entitled to participate in and
receive benefits under any plan, program, or arrangement made available by
Employer to Employer's other executives and key management employees, subject
to the terms and conditions of such plans, programs, and arrangements
applicable to all such employees.
For the 1995 calendar year and each subsequent calendar year (or fraction
thereof) during this Agreement, Employee shall be entitled to fifteen (15) paid
vacation days. The time or times at which such vacation days are to be taken
shall be reasonably determined by Employee consistent with Employee's duties and
obligations under this Agreement. Any such vacation days with respect to a
calendar year that are unused as of the last day of such calendar year shall
automatically be carried over to the next calendar year unless Employer and
Employee otherwise agree in writing.
5. FACILITIES; EXPENSE REIMBURSEMENT.
5.1 FACILITIES. Employer shall provide and maintain (or cause to be
provided and maintained) at Employer's sole cost such facilities, equipment,
offices, secretarial and other support staff help, and other services and
supplies as are reasonably required by Employee for Employee's performance of
his duties under this Agreement. Employer shall promptly reimburse Employee for
any expenditures for such that are incurred by Employee.
5.2 EXPENSE REIMBURSEMENT. Employee is authorized to incur
reasonable expenses for promoting the business of Employer, including, without
limitation, expenses for entertainment, travel, home telephone, and similar
items. Employer will promptly reimburse Employee for such expenses upon the
presentation by Employee from time to time of an itemized account of such
expenditures with vouchers and such other supporting information which Employer
may from time to time request in accordance with Employer's accounting
procedures.
6. TERMINATION OF EMPLOYMENT.
6.1 DEATH OR DISABILITY OR MUTUAL AGREEMENT. Employee's employment
shall terminate automatically upon Employee's death during the term of this
Agreement. Also, if Employee is absent for work as a result of incapacity due
to mental or physical illness during a period encompassing more than one hundred
eighty (180) business days during any calendar year, Employee's employment with
Employer shall terminate upon the expiration of such 180 business day period.
Employee's employment may be terminated at any time by the mutual written
agreement of Employer and Employee.
6.2 TERMINATION FOR CAUSE. Employer's Board of Directors may
terminate Employee's employment for "Cause." As used herein, "Cause" means (a)
an act or acts of willful personal dishonesty taken by Employee and intended to
result in substantial personal enrichment of Executive to the detriment of
Employer; or (b) the willful engaging by Employee in illegal conduct that is
materially demonstrably injurious to Employer. For purposes hereof, no act on
Employee's part shall be considered "dishonest," "willful" or "deliberate"
unless done by Employee in bad faith and without reasonable belief that
Employee's action was in, or not
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opposed to, the best interest of Employer. Any act based upon authority
given pursuant to a resolution duly adopted by the Employer's Board of
Directors or based upon the advice of legal counsel shall be conclusively
presumed to be done, or omitted to be done, by Employee in good faith and in
the best interests of Employer.
6.3 COMPENSABLE TERMINATION BY EMPLOYEE. Employee may, in his sole
discretion, terminate his employment under this Agreement for any one or more of
the following reasons and be entitled to compensation pursuant to Section 6.5
hereof:
(a) An adverse change in Employee's status or position as an
executive officer of Employer, including, without limitation, any adverse change
in Employee's status or position as a result of a material diminution in
Employee's duties, responsibilities or authority as of the date of this
Agreement (or any status or position to which Employee may be promoted after the
date hereof) or the assignment to Employee of any duties or responsibilities
which, in Employee's reasonable judgment, are inconsistent with Employee's
status or position, or any removal of Employee from or any failure to reappoint
or reelect Employee to such positions (except in connection with the termination
of Employee's employment for Cause in accordance with Section 6.2 hereof or
disability or death in accordance with Section 6.1 hereof);
(b) A reduction by Employer in Employee's base salary (other
than as provided in Section 3.1 hereof) as in effect as of the date of this
Agreement or as the same may be increased from time to time or a change in the
eligibility requirements or performance criteria under any plan under which
Employee is covered as of the date of this Agreement, which adversely affects
Employee;
(c) Without replacement by plan-provided benefits to Employee
equal to or greater than those discontinued, the failure by the Employer to
continue in effect, within its maximum stated term, any plan in which Employee
is participating immediately as of the date of Employee's execution of this
Agreement or the taking of any action by Employer that would adversely affect
Employee's participation or materially reduce Employee's benefits under any
plan;
(d) The taking of any action by Employer that would materially
adversely affect the physical conditions existing immediately prior to the date
of this Agreement in or under which Employee performs his employment duties;
(e) Employer's requiring Employee to be based anywhere other
than Savannah, Georgia, except for required travel on Employer's business to an
extent substantially consistent with the business travel obligations which
Employee undertook on behalf of Employer prior to the date of this Agreement;
(f) The failure by Employer to obtain from any "Successor" to
assent to this Agreement contemplated by Section 10.2 hereof; or
(g) Any purported termination by Employer of this Agreement or
the employment of Employee by Employer which is not expressly authorized by this
Agreement or any breach of this Agreement by Employer other than an isolated,
insubstantial and inadvertent
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failure not occurring in bad faith and which is remedied by Employer within a
reasonable period after Employer's receipt of notice thereof from Employee.
(h) Any refusal by Employer to continue to allow Employee to
attend to matters or engage in activities not directly related to the business
of Employer which, prior to the date of this Agreement or any time thereafter
but prior to such refusal, Employee attended to or engaged in.
6.4 NON-COMPENSABLE TERMINATION BY EMPLOYEE. Employee may, in his
sole discretion, terminate his employment under this Agreement for any reason
whatsoever upon ninety (90) days advance written notice to Employer.
6.5 COMPENSATION UPON TERMINATION, DEATH OR DURING DISABILITY.
(a) During any period that Employee fails to perform Employee's
duties hereunder as a result of incapacity due to physical or mental illness,
Employee shall continue to receive all base salary and other compensation and
benefits to which Employee is otherwise entitled under this Agreement and any
plan until Employee's date of termination.
(b) If Employee's employment under this Agreement is terminated
(i) on account of death, (ii) for Cause, (iii) by mutual agreement, or (iv) by
Employee pursuant to Section 6.4 hereof, Employer shall, within ten (10)
calendar days following the date of termination, pay any amounts due to Employee
for base salary through the date of termination, together with any other unpaid
and pro rata amounts to which Employee is entitled as of the date of termination
pursuant to Sections 3 and 4 hereof, including, without limitation, amounts
which Employee is entitled under any plan in accordance with the terms of such
plan, and further, including, without limitation, a pro rata portion (prorated
through the date of termination) of any annual or long-term bonus or incentive
payments (for performance periods in effect at the date of termination) to which
Employee would have been entitled had Employee remained continuously employed
through the end of such performance periods and continued to perform Employee's
duties in the same manner as performed immediately prior to such termination.
(c) If, in breach of this Agreement, Employer terminates
Employee's employment hereunder (it being understood that a purported
termination for disability or for Cause which is disputed and finally determined
not to have been proper shall be a termination by Employer in breach of this
Agreement) or if Employee terminates his employment hereunder pursuant to
Section 6.3 for the unexpired term of this Agreement as determined in accordance
with Section 2.3, Employer shall, as damages for such breach:
(1) continue to pay any amounts due to Employee for base salary
in accordance with Section 3.1. at the annual rate in effect
thereunder immediately prior to Employee's termination of
employment (but determined without regard to any purported
reduction in base salary which gave rise to such termination
of employment) in the same manner as if Employee had
remained continuously employed through December 31, 1999;
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(2) cause Employee's continued participation in all plans in
accordance with Section 4 hereof as if Employee remained
continuously employed with Employer through December 31,
1999 for all purposes, including without limitation grants,
awards, accruals and vesting thereunder; provided, that, if
such continued participation is not permissible under
applicable law, Employer shall provide Employee with
benefits substantially similar to those to which Employee
would have been entitled under those plans in which
Employee's continued participation is not permissible; and
(3) continue to (i) provide Employee with paid vacation in
accordance with Section 4 hereof, (ii) bear business
expenses of Employee in accordance with Section 5.2 with
respect to matters reasonably undertaken by Employee on
behalf of Employer, and (iii) provide Employee with offices
and facilities in accordance with Section 5.1 hereof, in the
same manner as if Employee had remained continuously
employed throughout the period described above,
The damages determined pursuant to this Section 6.5(c) shall be mitigated to the
extent of Employee's "earned income" (within the meaning of section 911(d)(2)(A)
of the Internal Revenue Code of 1986, as amended) derived from Employee's
subsequent employment by an employer in the same product line of business as
Employer with Employee having executive duties, officer positions, and
responsibilities substantially the same as provided for herein during the
remainder of the period with respect to which such damages are required to be
paid by Employer.
7. NONEXCLUSIVITY OF RIGHTS. Except as provided in Section 6, nothing in
this Agreement shall prevent or limit the Employee's continuing or future
participation in any plan, program, policy or practice provided by Employer and
for which the Employee may qualify, nor shall anything herein limit or otherwise
affect such rights as the Employee may have under any contract or agreement with
Employer. Amounts which are vested benefits or which the Employee is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Employer at or subsequent to the date of
termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement, except as explicitly modified by this
Agreement.
8. NON-COMPETITION; COVENANT NOT TO RECRUIT. During the term of this
Agreement and for a period of twelve (12) months following Employee's
termination of employment with Employer, Employee shall refrain from competing
(directly or indirectly, alone or as a partner, officer, director, shareholder,
or employee of any other firm or entity) with Employer with respect to
Employer's business as conducted during the term of this Agreement or as of the
date of Employee's termination of employment. For purposes hereof,
"shareholder" shall not include Employee's ownership of the Restricted Shares or
other stock of Employer or ownership of less than five percent (5%) of the
combined voting power of all issued and outstanding voting securities of a
publicly-held corporation whose stock is traded on a major stock exchange or
quoted on NASDAQ.
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Employee recognizes that Employer's workforce constitutes an important
and vital aspect of its business on a world-wide basis. Employee agrees that
for a period of one (1) following the termination of this Agreement for any
reason whatsoever, Employee shall not solicit, or assist anyone else in the
solicitation of, any of the Employer's then-current employees to terminate their
employment with Employer and to become employed by any business enterprise with
which Employee may then be associated, affiliated or connected.
9. CONFIDENTIAL INFORMATION; PROPRIETARY INFORMATION.
9.1 "Confidential Information" means information that is proprietary
to Employer or proprietary to others and entrusted to Employer, whether or not
trade secrets. Confidential Information includes, but is not limited to,
information relating to business plans and to business as conducted or
anticipated to be conducted, and to past or current or anticipated products.
Confidential Information also includes, without limitation, information
concerning research, inventions, works of authorship, development, engineering,
purchasing, accounting, marketing, selling and services. All information that
Employee has a reasonable basis to consider confidential is Confidential
Information, whether or not originated by Employee and without regard to the
manner in which Employee obtains access to this and any other proprietary
information.
9.2 CERTAIN PROPRIETARY INFORMATION. If Employee possesses any
proprietary information of another person or entity as a result of prior
employment or relationship, Employee shall honor any legal obligation that
Employee has with that person or entity with respect to such proprietary
information.
9.3 RETURN OF PROPRIETARY PROPERTY. Employee agrees that all
property in Employee's possession belonging to Employer, including without
limitation, all documents, reports, manuals, memoranda, computer print-outs,
customer lists, credit cards, keys, identification, products, access cards,
automobiles and all other property relating in any way to the business of
Employer are the exclusive property of Employer, even if Employee authored,
created or assisted in authoring or creating, such property. Employee shall
return to the Employer all such documents and property immediately upon
termination of employment or at such earlier time as Employer may reasonably
request.
9.4 PROHIBITIONS AGAINST USE OF CONFIDENTIAL INFORMATION. Employee
will not during or subsequent to the termination of Employee's employment under
this Agreement use or disclose, other than in connection with Employee's
employment with Employer, any Confidential Information to any person not
employed the Employer or not authorized by Employer to receive such Confidential
Information, without the prior written consent of Employer. Employee will use
reasonable and prudent care to safeguard and protect and prevent the
unauthorized use and disclosure of Confidential Information. The obligations
contained in this Section 9.4 will survive for as long as Employer in its sole
judgment considers the information to be Confidential Information. The
obligations under this Section 9.4 will not apply to any Confidential
Information that is now or becomes generally available to the public through no
fault of Employee or to Employee's disclosure of any Confidential Information
required by law or judicial or administrative process.
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10. MISCELLANEOUS.
10.1 NOTICE. Notices required or permitted to be given hereunder
shall be sufficient if in writing and delivered or deposited in the U.S. Mails,
postage prepaid, certified mail, return receipt requested, to the following
addresses or to such other address as may be designated in writing hereafter by
either party hereto:
To the Employer:
DynEco Corporation
564 International Place
Rockledge, Florida 32955
Attention: Board of Directors
To the Employee:
Richard D. Besser
5A Skidaway Village Walk, Suite 137
Savannah, Georgia 31411
10.2 BURDEN; BENEFIT; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of any "Successor" of the Employer and any such
"Successor" shall be deemed substituted for the Employer under the terms of this
Agreement. As used in this Agreement, Employer shall mean the Employer as
hereinbefore defined and any "Successor" to its business and/or assets as
aforesaid, which assumes and agrees to perform this Agreement by operation of
law or otherwise. This Agreement is personal to Employee and without the prior
written consent of Employer, Employee shall not assign or delegate any of his
rights or obligations hereunder other than by testamentary disposition or the
laws of descent and distribution. Employer may not assign or delegate any of
its rights or obligations hereunder unless such assignment is to a "Successor"
(as hereafter defined) and such "Successor" by agreement in form and substance
satisfactory to Employee assets to the fulfillment of Employer's obligations
under this Agreement. As used herein, the term "Successor" means any
corporation, individual, group, association, partnership, firm, venture or other
entity or person that, subsequent to the date hereof, succeeds to the actual or
practical ability to control (either immediately or with the passage of time),
all or substantially all of Employer's business and/or assets, directly or
indirectly, by merger, consolidation, recapitalization, purchase, liquidation,
redemption, assignment, similar corporate transaction, operation of law or
otherwise.
10.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding by and between Employer and Employee with respect to the
employment of Employee and no representations, promises, agreements, or
understandings written or oral, not contained herein shall be of any force or
effect. No change or modification of this Agreement shall be valid or binding
unless it is in writing and signed by the parties intended to be bound. No
waiver of any provision of this Agreement shall be valid unless it is in writing
and signed by the parties against whom the waiver is sought to be enforced. No
valid waiver of any provision of this Agreement at any time shall be deemed a
waiver of any other provision of this Agreement at such time or any other time.
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10.4 GOVERNING LAW. The validity, interpretation, construction,
performance, enforcement and remedies of or relating to this Agreement, and the
rights and obligations of the parties hereunder, shall be governed by the
substantive laws of the State of Florida (without regard to the conflict of laws
or statutes of any jurisdiction), and any and every legal proceeding arising out
of or in connection with this Agreement shall be brought in the appropriate
courts of the State of Florida, each of the parties hereby consenting to the
exclusive jurisdiction of said courts for this purpose.
10.5 DISPUTES. Any dispute, controversy or claim for damages arising
under or in connection with this Agreement shall be settled exclusively by
arbitration in Jacksonville, Florida by a panel of three (3) arbitrators in
accordance with the Commercial Rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrators' award in any court
having jurisdiction; provided, however, that Employee shall be entitled to seek
specific performance of Employee's right to be paid until the date of
termination of employment during the pendency of any dispute or controversy
arising under or in connection with this Agreement. Employer shall bear all
costs and expenses, including attorney's fees, arising in connection with any
arbitration proceeding pursuant hereto. Employer shall be entitled to seek an
injunction or restraining order in a court of competent jurisdiction to enforce
the provisions of Sections 8 and 9.
10.6 NO OFFSETS. In no event shall any amount payable to Employee
pursuant to this Agreement be reduced for purposes of offsetting, either
directly or indirectly, any indebtedness or liability of Employee to Employer.
10.7 COUNTERPARTS. This Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one (1) and the same instrument.
10.8 SURVIVAL. The parties expressly acknowledge and agree that the
provisions of this Agreement which by their express or implied terms extend
beyond the termination of Employee's employment hereunder including, without
limitation, the provisions of Section 6.5 (relating to compensation) or beyond
the termination of this Agreement including, without limitation, the provisions
of Section 9 (relating to confidential information) and Section 8 (relating to
non-competition), shall continue in full force and effect notwithstanding
Employee's termination of employment hereunder or the termination of this
Agreement, respectively.
10.9 SEPARATE COUNSEL. The parties acknowledge that Employer has been
represented in this transaction by Mark J. Vieno, P.A., that Employee has not
been represented in this transaction by Employer's attorneys.
10.10 PRESUMPTION. This Agreement or any section thereof shall
not be construed against any party due to the fact that said Agreement or any
section thereof was drafted by said party.
10.11 NO ADEQUATE REMEDY. Notwithstanding anything contained
herein to the contrary, the parties declare that it is impossible to accurately
measure in money the damages
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which will accrue to either party by reason of a failure to perform any of
the obligations under this Agreement. Therefore, if either party shall
institute any action or proceeding to enforce the provisions hereof, the
party against whom such action or proceeding is brought hereby waives the
claim or defense that such party has an adequate remedy at law, and such
party shall not assert in any such action or proceeding the claim or defense
that such party has an adequate remedy at law.
10.12 WITHHOLDING. To the extent required by any applicable law,
including, without limitation, any federal or state income tax or excise tax law
or laws, the Federal Insurance Contributions Act, the Federal Unemployment Tax
Act or any comparable federal, state or local laws, Employer retains the right
to withhold such portion of any amount or amounts payable to Employee under this
Agreement as Employer (on the written advice of counsel) deems necessary.
10.13 SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any one or more of
the provisions of this Agreement shall not affect the validity and
enforceability of the other provisions.
EXECUTED in multiple counterparts on the dates set forth below but
effective as of the Effective Date.
EMPLOYER: DynEco Corporation
By /s/ Thomas C. Edwards
---------------------------------
Its Chief Technical Officer
--------------------------------
Date: March 21 , 1995
-----------------------
EMPLOYEE: /s/ Richard D. Besser
-------------------------
Richard D. Besser
Date: 3-23 , 1995
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