EXHIBIT 99.1
------------
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
---------------------------------------------
This Amended and Restated Employment Agreement (the "Employment Agreement")
is made and entered into as of the 6th day of June, 2003 (the "Execution Date"),
by and between N-Viro International Corporation, a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxxxxx, an individual ("Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company owns and licenses the N-Viro Process, a patented
technology to treat and recycle wastewater sludge and other bio-organic wastes,
utilizing certain alkaline and mineral by-products produced by cement, lime,
electric utilities and other industries (such activities, together with all
other activities of the Company and/or its subsidiaries or affiliates, as
conducted at or prior to the termination of this Employment Agreement, and any
future activities reasonably related thereto that are contemplated by the
Company and/or its subsidiaries or affiliates at the termination of this
Employment Agreement identified in writing by the Company to Employee at the
date of such termination, are hereinafter collectively referred to as the
"Business Activities");
WHEREAS, the Company and Employee entered into an Employment Agreement
as of October 20, 1993 (the "First Employment Agreement"); and,
WHEREAS, the Company and Employee desires to amend and restate the
First Employment Agreement upon the terms and subject to the terms and
conditions set forth in this Employment Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants and conditions herein contained and in the First Employment Agreement
and for other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto intending to be legally bound
hereby agree as follows:
Section 1. First Employment Agreement. Effective as of the
Execution Date, the First Employment Agreement shall be canceled and terminated
and of no further legal force or effect and this Employment Agreement shall be
in full legal force and effect until otherwise amended, modified, supplemented
or terminated in accordance with the terms of this Employment Agreement.
Section 2. Employment. During the Employment Period (as
hereinafter defined), the Company shall employ Employee, and Employee shall
accept employment with the Company, all upon the terms and subject to the
conditions set forth in this Employment Agreement.
Section 3. Capacity and Duties. Employee shall be employed in the
capacity of Chief Operating Officer of the Company and its subsidiaries and
affiliates and shall have such other duties, responsibilities and authorities as
are assigned to him by the CEO and the Board of Directors of the Company (the
"Board") so long as such additional duties, responsibilities and authorities are
consistent with Employee's position and level of authority as Chief Operating
Officer of the Company. Employee shall report directly to the Chief Executive
Officer of the Company. Subject to the control and general directions of the
Chief Executive Officer of the Company and the general policies and guidelines
established by the Board and except as otherwise herein provided, Employee shall
devote all of his business time, best efforts and attention to promote and
advance the business of the Company and its subsidiaries and affiliates and to
perform diligently and faithfully all the duties, responsibilities and
obligations of Employee to be performed by him under this Employment Agreement.
Employee's duties shall include the on-going management and oversight of the
general business affairs and operations of the Company and its subsidiaries and
affiliates and shall include, but not be limited to, business development, sales
and marketing, and general promotion, national policy and governmental
regulations and relations including those relating to water and the environment.
So long as Employee is employed by the Company, the Company shall use its best
efforts to cause the Nominating Committee of the Board or the Board, if there is
no Nominating Committee of the Board, to nominate Employee for reelection as a
director of the Company for a two year term upon expiration of his current term
as a director of the Company and, if so nominated, Employee shall consent to
serve as a director if elected so long as that the company provides adequate
directors and officers insurance. If the company chooses to eliminate the
directors and officers insurance the employee may serve on the board at the
employees option. During the Employment Period, Employee shall not be employed
in any other business activity, whether or not such activity is pursued for
gain, profit or other pecuniary advantage; provided, however, that this
restriction shall not be construed as preventing Employee from (i) investing his
personal assets in a business that is not engaged in any Business Activities,
where the form or manner of such investment will not require services of any
significance on the part of Employee in the operation of the affairs of the
business in which such investment is made and in which his participation is
solely that of a passive investor or advisor or (ii) being engaged in those
activities listed on Exhibit 2 attached hereto; provided further, however, that
the activities described in clause (ii) of this sentence shall not unreasonably
interfere with Employee's performance of his obligations under this Employment
Agreement.
Section 4. Term of Employment. The term of employment of Employee
by the Company pursuant to this Employment Agreement shall be for the period of
four years(the "Employment Period") commencing on the execution date (the
"Commencement Date") and ending on June 6th 2007 or such earlier date that
Employee's employment is terminated or later date that Employee's employment is
extended in accordance with the provisions of this Employment Agreement (the
"Termination Date"). At least 120 days prior to expiration of this Agreement,
the parties shall endeavor to come to terms for renewal of the Agreement. This
Agreement shall not self renew absent a writing to the opposite effect.
Section 5. Place of Employment. Employee's principal place of
work shall be located at the principal offices of the Company in the Toledo,
Ohio area. The Company and Employee acknowledge that Employee's principal place
of work is consistent with the extensive national and international business
travel which may be required of Employee in connection with the performance of
his duties, responsibilities and authorities under this Agreement. The Employee
will not be required to relocate during the terms of this Agreement. Travel:
Wherever practicable, the Employee will not be required to travel over the
weekends while on business within the USA. Employee will be required to travel
over one (1) weekend per any 30-day period while on International business.
Section 6. Compensation. During the Employment Period, subject to
all the terms and conditions of this Employment Agreement and, except as
otherwise provided in Sections 10 or 11, as the case may be, as compensation for
all services to be rendered by Employee under this Employment Agreement, the
Company shall pay to or provide Employee with the following:
6.01 Base Salary. The Company shall pay to Employee a base annual salary
(the "Base Salary") at the rate of at least $110,000.00per year from
the Commencement Date through June 6, 2007 , payable at such intervals
(at least monthly) as salaries are paid generally to other executive
officers of the Company. On or before January 1, 2004 and on or before
each January 1 thereafter during the Employment Period, Employee's
Base Salary shall be reviewed by the Board and increased to an amount
determined in good faith by the Board based upon a complete review of
Employee's performance under this Employment Agreement during the
prior year and the growth and profitability of the Company and
Employee's contributions thereto, which review shall be communicated
in writing to Employee. The employee will accept his current salary of
$92,000 through June 30th 2003. All voluntarily deferred compensation
by the employee from this or from the prior Employment Agreement shall
be considered to be lost compensation and not recoverable by the
Employee.
6.02 Cash Bonus. At the discretion of the Board, the Company shall pay to
Employee an annual cash bonus (the "Cash Bonus") in an amount
determined in good faith by the Board based upon a complete review of
Employee's performance under this Employment Agreement during the
prior year and the growth and profitability of the Company and
Employee's contribution thereto. Any Cash Bonus payable to Employee
pursuant to this Section 6.02 shall be payable, if at all, on or
before March 31, of each year during the Employment Period based upon
Employees performance for the prior calendar year. Management will
develop with Employee an annual plan for revenue maintenance and
enhancement, together with performance goals. The Cash Bonus will be
recommended by management to the Compensation Committee of the Board
based on management's evaluation of Employee's performance relative to
the annual goals.
6.03 Other Benefits. The Company shall provide Employee with the other
general benefits and considerations offered to all employees.
6.04 Stock Option. The Company shall grant to Employee the sole and
exclusive right and option to purchase Fifty Thousand (50,000) shares
of the Common Stock, par value $.01 per share, of the Company (the
"Company Common Stock") at a price per share equal to the closing sale
price of the Company Common Stock on the execution date of agreement
as reported on the OTCB or other trading media and upon the terms and
subject to the conditions set forth in the form of Stock Option
Agreement attached hereto as Exhibit 6.04 (the "Stock Option
Agreement"), which the Company and Employee shall each execute and
deliver to the other as of the Execution Date. This grant of right to
purchase options in no way shall be deemed as compensation, bonus,
reward for past performance. The employee remains entitled to rewards,
bonuses, compensation offered to employees of the company as granted
by the board and management for services prior to the execution of the
agreement and for future awards granted to the employees of the
company by the board of directors.
6.05 Health Insurance Adjustment to Base Salary. The company will provide
the employee with additional compensation equivalent to the benefit
for health insurance paid for by the company for the employee if the
employee no longer participates in the company health care plan. If
the employee no longer participates in the company health insurance
program the company will pay the equivalent benefit directly to the
employee.
6.06 Life Insurance Policy. The company will carry and pay the premiums for
the Key Man Life Insurance Policy (North American Policy LB00145980
personal $1,000,000.) for the employee, which is currently carried as
of 12/17/02. The policy will continue to be carried by the company for
the duration of the agreement.
6.07 Car Mileage. The company will reimburse employee for his car mileage
incurred for business purposes or will provide the employee with an
acceptable car and allowable expenses.
Section 7. Adherence to Standards. Employee shall comply with the
written policies, standards, rules and regulations of the Company from time to
time established for all executive officers of the Company.
Section 8. Review of Performance. The Chief Executive Officer in
cooperation with the Board of Directors of the Company shall periodically review
and evaluate the performance of Employee under this Employment Agreement with
Employee.
Section 9. Expenses. The Company shall reimburse Employee for all
reasonable, ordinary and necessary expenses (including, but not limited to,
automobile and other business travel and customer entertainment expenses)
incurred by him in connection with his employment hereunder; provided, however,
Employee shall render to the Company a complete and accurate accounting of all
such expenses in accordance with the substantiation requirements of Section 274
of the Internal Revenue Code of 1986, as amended (the "Code"), as a condition
precedent to such reimbursement or in accordance with company policy and
acceptable practices.
Section 10. Termination with Cause by the Company. This Employment
Agreement may be terminated with Cause (as hereinafter defined) by the Company
provided that the Company shall (i) give Employee the Notice of Termination and
(ii) pay Employee his annual base salary through the Termination Date at the
rate in effect at the time the Notice of Termination is given plus any bonus or
incentive compensation which have been earned or have become payable pursuant to
the terms of any compensation or benefit plan as of the Termination Date, but
which have not yet been paid.
Section 11. Termination without Cause by the Company or for Good
Reason by Employee. This Employment Agreement may be terminated by (i) the
Company by reason of the death or Disability (as hereinafter defined) of
Employee, (ii) the Company by giving Employee the Notice of Termination, (iii)
Employee for Good Reason (as hereinafter defined) after giving the Company the
Notice of Termination within fifteen (15) days prior to such termination and
(iv) Employee not for Good Reason after giving the Company the Notice of
Termination within sixty (60) days prior to such termination. In the event of
termination of this Employment Agreement under this Section 11, the Company
shall pay Employee his Base Salary through the Termination Date at the rate in
effect at the time of the Termination Date plus any bonus or incentive
compensation which have been earned or have become payable pursuant to the terms
of any compensation or benefit plan as of the Termination Date, but which have
not yet been paid. In the event of termination of this Employment Agreement
under this Section 11 by the Company by reason of the death or Disability of
Employee or by Employee for Good Reason and such termination is on or prior to
the Termination Date that would be in effect if such employment had not been
terminated under this Section 11, the Company shall pay to Employee, in addition
to the other benefits specifically provided for in this Section, his Base Salary
for the one (1) year period beginning on the Termination Date; provided,
however, that if such Termination under this Section 11 is by the Company (other
than by reason of the death or Disability of Employee) prior to the Termination
Date that would be in effect if such employment had not been terminated under
this Section 11, the Company shall pay to Employee his Base Salary for the two
(2) year period beginning on the Termination Date. However, in no event shall
the Company owe compensation beyond the natural expiration date of this
Agreement other than the compensation called for in the agreement. This Section
11 shall not be interpreted so as to limit any benefits to which Employee, as a
terminated employee of the Company, or his family may be entitled under the
Company's life insurance, medical, hospitalization or disability plans following
the Termination Date or under applicable law.
Section 12. Definitions. In addition to the words and terms
elsewhere defined in this Employment Agreement, certain capitalized words and
terms used in this Employment Agreement shall have the meanings given to them by
the definitions and descriptions in this Section 14 unless the context or use
indicates another or different meaning or intent, and such definition shall be
equally applicable to both the singular and plural forms of any of the
capitalized words and terms herein defined. The following words and terms are
defined terms under this Employment Agreement:
12.01 "Disability" shall mean a physical or mental illness which, in
the judgment of the Company after consultation with the licensed physician
attending Employee, impairs Employee's ability to substantially perform his
duties under this Employment Agreement as an employee and as a result of
which he shall have been absent from his duties with the Company on a
full-time basis for three (3) consecutive months.
12.02 A termination with "Cause" shall mean a termination of this
Employment Agreement by reason of (a) a good faith determination by the CEO
and Board that Employee (i) failed to substantially perform his duties with
the Company (other than a failure resulting from his incapacity due to
physical or mental illness) after a written demand for substantial
performance has been delivered to him by the Board, which demand
specifically identifies the manner in which the Board believes he has not
substantially performed his duties and Employee has failed to substantially
perform as requested within a reasonable time, (ii) has engaged in conduct
which was intended to be materially adverse to the company, , (iii) is
found guilty of fraud, dishonesty or other acts of gross misconduct or
misfeasance in the performance of his duties under this Employment
Agreement by a court of competent jurisdiction whose decision is final and
non-appealable, (iv) is found to be under the influence of illegal drugs or
other similar substance while performing his duties under this Employment
Agreement or (v) is convicted of a felony, or (b) the Company makes an
assignment for the benefit of creditors, files a voluntary petition in
bankruptcy, is involuntarily adjudicated to bankrupt, is liquidated or
dissolved or sells substantially all of its assets. No act, or failure to
act, on Employee's part shall be grounds for termination with Cause unless
he has acted or failed to act with an absence of good faith or without a
reasonable belief that his action or failure to act was in or at least not
opposed to the best interests of the Company. Notwithstanding the
foregoing, Employee shall not be deemed to have been terminated with Cause
unless there shall have been delivered to him a copy of a resolution duly
adopted by the affirmative vote of not less than a majority of the entire
membership of the Board (exclusive of Employee) at a meeting of the Board
called and held for the purpose of terminating Employee (after reasonable
notice to Employee and opportunity for him, together with his counsel, to
be heard before the Board), finding that in the good faith opinion of the
Board, Employee failed to perform his duties or engaged in conduct in the
manner or of the type set forth above in the first sentence of this Section
14.02 and specifying the particulars thereof in detail.
12.03 "Good Reason" shall mean the occurrence of any of the following
events without Employee's prior express written consent: (i) any material
change in Employee's status, title, authorities or responsibilities
(including reporting responsibilities) under this Employment Agreement
which represents a demotion from such status, title, position or
responsibilities (including reporting responsibilities); the assignment to
him of any duties or work responsibilities which are materially
inconsistent with his status, title, position or work responsibilities set
forth in this Employment Agreement or which are materially inconsistent
with the status, title, position or work responsibilities of a President or
Chief Operating Officer of a publicly traded corporation; or any removal of
Employee from, or failure to appoint, elect, reappoint or reelect Employee
to, any of such positions, except in connection with the termination of his
employment with Cause, or as a result of his death or Disability; provided,
however, that no change in title, authorities or responsibilities
customarily attributable solely to the Company ceasing to be a publicly
traded corporation shall constitute Good Reason hereunder; (ii) the failure
by the Company to continue in effect any incentive, bonus or other
compensation plan in which Employee participates, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has
been made with respect to the failure to continue such plan, or the failure
by the Company to continue Employee's participation therein, or any action
by the Company which would directly or indirectly materially reduce his
participation therein or reward opportunities thereunder; provided,
however, that Employee continues to meet all eligibility requirements
thereof; (iii) the failure by the Company to continue in effect any
employee benefit plan (including any medical, hospitalization, life
insurance or disability benefit plan in which Employee participates), or
any material fringe benefit or prerequisite enjoyed by him unless an
equitable arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to the failure to continue such plan, or
the failure by the Company to continue Employee's participation therein, or
any action by the Company which would directly or indirectly materially
reduce his participation therein or reward opportunities thereunder, or the
failure by the Company to provide him with the benefits to which he is
entitled under this Employment Agreement; provided, however, that Employee
continues to meet all eligibility requirements thereof; (iv) any other
material breach by the Company of any provision of this Employment
Agreement; (v) the failure of the Company to obtain a satisfactory
agreement from any successor or assign of the Company to assume and agree
to perform this Employment Agreement, as contemplated in Section 25 hereof;
(vi) any purported termination of Employee's employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of
this Employment Agreement; and for purposes of this Employment Agreement,
no such purported termination shall be effective.
12.04 Notice of Termination. "Notice of Termination" shall mean a
written notice which shall indicate the specific termination provision in
this Employment Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of Employee's employment under the provision so indicated;
provided, however, no such purported termination shall be effective without
such Notice of Termination; provided further, however, any purported
termination by the Company or by Employee shall be communicated by a Notice
of Termination to the other party hereto in accordance with Section 4 of
this Employment Agreement.
Section 13. Fees and Expenses. The Company shall pay any fees
required by the employee to seek legal counsel regarding a contest or dispute
over the employees termination of employment up to $10,000.00. The Company shall
further pay all legal fees and related expenses (including the costs of experts,
evidence and counsel) incurred by Employee as a result of a contest or dispute
over Employee's termination of employment if such contest or dispute is resolved
in Employee's favor.
Section 14. Notices. For the purposes of this Employment
Agreement, notices and all other communications provided for in the Employment
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or sent by certified mail, return receipt requested,
postage prepaid, or by expedited (overnight) courier with established national
reputation, shipping prepaid or billed to sender, in either case addressed to
the respective addresses last given by each party to the other (provided that
all notices to the Company shall be directed to the attention of the Board with
a copy to the Secretary of the Company) or to such other address as either party
may have furnished to the other in writing in accordance herewith. All notices
and communication shall be deemed to have been received on the date of delivery
thereof, on the third business day after the mailing thereof, or on the second
day after deposit thereof with an expedited courier service, except that notice
of change of address shall be effective only upon receipt.
Section 15. Life Insurance. Other than benefits which are already
provided for under the agreement, The Company may, at any time after the
execution of this Employment Agreement, apply for and procure as owner and for
its own benefit, life insurance on Employee, in such amounts and in such form or
forms as the Company may determine. Employee shall, at the request of the
Company, submit to such medical examinations, supply such information, and
execute such documents as may be required by the insurance company or companies
to whom the Company has applied for such insurance. Employee hereby represents
that to his knowledge he is in excellent physical and mental condition and is
not under the influence of alcohol, drugs or similar substance. Additionally the
company will provide for benefits as called for in the agreement.
Section 16. Proprietary Information and Inventions. Employee
understands and acknowledges that:
16.01 Trust. Employee's employment creates a relationship of
confidence and trust between Employee and the Company with respect to
certain information applicable to the business of the Company and its
subsidiaries and affiliates (collectively, the "Group") or applicable to
the business of any licensee, vendor or customer of any of the Group, which
may be made known to Employee by the Group or by any licensee, vendor or
customer of any of the Group or learned by Employee during the Employment
Period.
16.02 Proprietary Information. The Group possesses and will continue
to possess information that has been created, discovered, or developed by,
or otherwise become known to, the Group (including, without limitation,
information created, discovered, developed or made known to by Employee
during the period of or arising out of his employment by the Company) or in
which property rights have been or may be assigned or otherwise conveyed to
the Group, which information has commercial value in the business in which
the Group is engaged and is treated by the Group as confidential. Except as
otherwise herein provided, all such information is hereinafter called
"Proprietary Information", which term, as used herein, shall also include,
but shall not be limited to, data, functional specifications, computer
programs, know-how, research, patents, inventions, discoveries, processes,
procedures, formulae, technology, improvements, developments, designs,
marketing plans, strategies, forecasts, new products, unpublished financial
statements, budgets, projections, licenses, prices, costs, and customer,
supplier and potential acquisition candidates lists. Notwithstanding
anything contained in this Employment Agreement to the contrary, the term
"Proprietary Information" shall not include (i) information which is in the
public domain, (ii) information which is published or otherwise becomes
part of the public domain through no fault of Employee, (iii) information
which Employee can demonstrate was in Employee's possession at the time of
disclosure and was not acquired by Employee directly or indirectly from any
of the Group on a confidential basis, (iv) information which becomes
available to Employee on a non-confidential basis from a source other than
any of the Group and which source, to the best of Employee's knowledge, did
not acquire the information on a confidential basis or (v) information
required to be disclosed by any federal or state law, rule or regulation or
by any applicable judgment, order or decree or any court or governmental
body or agency having jurisdiction in the premises. All Proprietary
Information shall be the sole property of the Group and their respective
assigns. Employee assigns to the Company any rights Employee may have or
acquire in such Proprietary Information. At all times, both during
Employee's employment by the Company and after its termination, Employee
shall keep in strictest confidence and trust all Proprietary Information,
and Employee shall not use or disclose any Proprietary Information without
the written consent of the Group, except as may be necessary in the
ordinary course of performing Employee's duties as an employee of the
Company.
Section 17. Inventions. Any and all inventions, conceptions,
processes, discoveries, improvements, patent rights, letter patents, programs,
copyrights, trademarks, trade names and applications therefor, in the United
States and other countries, whether patentable or not, and any and all rights
and interest in, to and under the same, that are conceived, made, acquired, or
possessed by Employee, alone or with other employees, during the term of this
Employment Agreement, or within two (2) years thereafter shall become the
exclusive property of the Company and shall at all times and for all purposes be
regarded as acquired and held by Employee in a fiduciary capacity for the sole
benefit of the Company, and the Employee hereby assigns and agrees to assign the
same to the Company without further compensation. Employee agrees that, upon
request, he will promptly make all disclosures, execute all applications,
assignments or other instruments and perform all acts whatsoever necessary or
desired by the Company to vest and confirm in it, its successors, assigns and
nominees, fully and completely, all rights and interests created or contemplated
by this Section.
Section 18. Surrender of Documents. Employee shall, at the request
of the Company, promptly surrender to the Company or its nominee any Proprietary
Information or document, memorandum, record, letter or other paper in his
possession or under his control relating to the operation, business or affairs
of the Group.
Section 19. Prior Employment Agreements. Employee represents and
warrants that Employee's performance of all the terms of this Employment
Agreement and as an employee of the Company does not, and will not, breach any
agreement to keep in confidence proprietary information acquired by Employee in
confidence or in trust prior to Employee's employment by the Company. Employee
has not entered into, and shall not enter into, any agreement, either written or
oral, which is in conflict with this Employment Agreement or which would be
violated by Employee entering into, or carrying out his obligations under, this
Employment Agreement. This Agreement substitutes for all prior Employment
Agreements and the Employee, and this Agreement represents in entirety the
obligations of the Company to the Employee.
Section 20. Restrictive Covenant. Employee acknowledges and
recognizes Employee's possession of Proprietary Information and the highly
competitive nature of the business of the Group and, accordingly, agrees that in
consideration of the covenants and conditions contained herein Employee shall
not, during the Employment Period, (i) directly or indirectly engage in any
Business Activities in the world that relate to the treatment of biosolids,
whether such engagement shall be as an employer, officer, director, owner,
employee, consultant, stockholder, partner or other participant in any Business
Activities (other than as a director, officer or employee of the Company), (ii)
assist others in engaging in any Business Activities in the manner described in
the foregoing clause (i), or (iii) induce employees of the Company to terminate
their employment with the Company or engage in any Business Activities in the
world; provided, however, that the ownership of the outstanding capital stock of
a corporation whose shares are traded on a national securities exchange or on
the over-the-counter market shall not be deemed engaging in any Business
Activities.
Section 21. Remedies. Employee acknowledges and agrees that the
Company's remedy at law for a breach or a threatened breach of the provisions
herein would be inadequate, and in recognition of this fact, in the event of a
breach or threatened breach by Employee of any of the provisions of this
Employment Agreement, it is agreed that the Company shall be entitled to,
equitable relief in the form of specific performance, a temporary restraining
order, a temporary or permanent injunction or any other equitable remedy which
may then be available, without posting bond or other security. Employee
acknowledges that the granting of a temporary injunction, a temporary
restraining order or other permanent injunction merely prohibiting Employee from
engaging in any Business Activities would not be an adequate remedy upon breach
or threatened breach of this Employment Agreement, and consequently agrees upon
any such breach or threatened breach to the granting of injunctive relief
prohibiting Employee from engaging in any activities prohibited by this
Employment Agreement. No remedy herein conferred is intended to be exclusive of
any other remedy, and each and every such remedy shall be cumulative and shall
be in addition to any other remedy given hereunder now or hereinafter existing
at law or in equity or by statute or otherwise.
Section 22. Non- Compete. Employee acknowledges and recognizes
Employee's possession of Proprietary Information and the highly competitive
nature of the business of the Group and, accordingly, agrees that in
consideration of the premises contained herein Employee will not, during the
period of Employee's employment by the Company and for a period of one (1) year
following the termination hereof, (i) directly of indirectly engage in any
activities which infringe upon the proprietary properties of the Company or its
affiliates or subsidiaries as that business is conducted prior to or at the time
of the termination hereof, in the United States, whether such engagement shall
be as an employer, officer, director, owner, employee, consultant, stockholder,
partner or other participant, (ii) assist others in engaging in any such
competition in the manner described in the foregoing clause (i), or (iii) induce
employees of the Company or its affiliates or subsidiaries to terminate their
employment with the Company or its affiliates or subsidiaries or engage in any
such competition in the United States; provided, however, that the ownership of
the outstanding capital stock of the Company or any other corporation whose
shares are traded on a national securities exchange or on the over-the-counter
market shall not be deemed engaging in any such competition. The employee will
not be held to any of the provisions of this section 22 if the Employee's
employment is terminated by the Company without cause or by the employer for
good reason.
Section 23. Successive Employment Notice. Within five (5)
business days after the Termination Date, Employee shall provide notice to the
Company of Employee's next intended employment. If such employment is not known
by Employee at such date, Employee shall notify the Company immediately upon
determination of such information. Employee shall continue to provide the
Company with notice of Employee's place and nature of employment and any change
in place or nature of employment during the period ending one (1) year after the
Termination Date. Failure of Employee to provide the Company with such
information in an accurate and timely fashion shall be deemed to be a breach of
this Employment Agreement and shall entitle the Company to all remedies provided
for in this Employment Agreement as a result of such breach.
Section 24. Successors. This Employment Agreement shall be
binding on the Company and any successor to any of its businesses or assets.
Without limiting the effect of the prior sentence, the Company shall use its
best efforts to require any successor or assign (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Employment Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment had
taken place. As used in this Employment Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor or assign to its business
and/or assets as aforesaid which assumes and agrees to perform this Employment
Agreement or which is otherwise obligated under this Agreement by the first
sentence of this Section 25, by operation of law or otherwise.
Section 25. Binding Effect. This Employment Agreement shall inure
to the benefit of and be enforceable by Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Employee should die while any amounts would still be
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Employment Agreement to Employee's estate.
Section 26. Modification and Waiver. No provision of this
Employment Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Employee and
such officer as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Employment Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
Section 27. Headings. Headings used in this Agreement are for
convenience only and shall not be used to interpret or construe its provisions.
Section 28. Waiver of Breach. The waiver of either the Company or
Employee of a breach of any provision of this Employment Agreement shall not
operate or be construed as a waiver of any subsequent breach by either the
Company or Employee.
Section 29. Amendments. No amendments or variations of the terms
and conditions of this Employment Agreement shall be valid unless the same is in
writing and signed by all of the parties hereto.
Section 30. Severability. The invalidity or unenforceability of
any provision of this Employment Agreement, whether in whole or in part, shall
not in any way affect the validity and/or enforceability of any other provision
herein contained. Any invalid or unenforceable provision shall be deemed
severable to the extent of any such invalidity or unenforceability. It is
expressly understood and agreed that while the Company and Employee consider the
restrictions contained in this Employment Agreement reasonable for the purpose
of preserving for the Company the good will, other proprietary rights and
intangible business value of the Company if a final judicial determination is
made by a court having jurisdiction that the time or territory or any other
restriction contained in this Employment Agreement is an unreasonable or
otherwise unenforceable restriction against Employee, the provisions of such
clause shall not be rendered void but shall be deemed amended to apply as to
maximum time and territory and to such other extent as such court may judicially
determine or indicate to be reasonable.
Section 31. Governing Law. This Employment Agreement shall be
construed and enforced pursuant to the laws of the State of Ohio.
Section 32. Arbitration. Any controversy or claim arising out of
or relating to this Employment Agreement or any transactions provided for
herein, or the breach thereof, other than a claim for injunctive relief shall be
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the "Rules") in effect at the time demand
for arbitration is made by any party. The evidentiary and procedural rules in
such proceedings shall be kept to the minimum level of formality that is
consistent with the Rules. One arbitrator shall be named by the Company, a
second shall be named by Employee and the third arbitrator shall be named by the
two arbitrators so chosen. In the event that the third arbitrator is not agreed
upon, he or she shall be named by the American Arbitration Association.
Arbitration shall occur in Toledo, Ohio or such other location agreed to by the
Company and Employee. The award made by all or a majority of the panel of
arbitrators shall be final and binding, and judgment may be entered in any court
of law having competent jurisdiction. The award is subject to confirmation,
modification, correction, or vacation only as explicitly provided in Title 9 of
the United States Code. The prevailing party shall be entitled to an award of
pre- and post-award interest. All legal fees' incurred by any party to the
arbitration, in connection with the arbitration and any judicial proceedings
related thereto shall be paid by such party. The fees of the arbitrators shall
be split between Employee and the Company.
Section 33. Counterparts. This Employment Agreement may be
executed in more than one (1) counterpart and each counterpart shall be
considered an original.
Section 34. Exhibits. The Exhibits attached hereto are
incorporated herein by reference and are an integral part of this Employment
Agreement.
Section 35. Sections. Unless the context requires a different
meaning, all references to "Sections" in this Agreement shall mean the Section
of this Agreement.
Section 36. Publicity. Press releases and other publicity
materials relating to the transactions contemplated by this Employment Agreement
shall be released by the parties hereto only after review and with the consent
of the other party; provided, however, that if legal counsel for the Company
advises the Company that disclosure of this Employment Agreement is required
under applicable federal or state securities laws, then the Company shall be
permitted to make such disclosure in the form recommended by such legal counsel
without the prior consent of Employee.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed by the
Company and Employee in four (4) counterparts as of the date first above
written.
N-VIRO INTERNATIONAL CORPORATION
By /s/ Xxxxx Xxxxx
-----------------
Xxxxx Xxxxx
Its Chief Executive Officer
---------------------------
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxxx
------
Benefits
--------
1. Four weeks paid Vacation. Vacation incurred between the Christmas and New
Years Day is not charged as vacation
2. Vacation days not taken will be accrued for the benefit of the Employee.
3. Employee will be furnished Personal Computer. The Employee upon termination
of agreement will retain his computer and all associated components. Employee
will return all information to the Company that is considered Proprietary.
EXHIBIT 6.04 TO EMPLOYMENT AGREEMENT
---------------------------------------
STOCK OPTION AGREEMENT
----------------------
Pursuant to the N-Viro International Amended and Restated Stock Option Plan, Mr.
Xxxxxxx Xxxxxxxxx is hereby granted 50,000 options to purchase N-Viro
International Corporation Common Stock, at a price determined by the OTC on the
day of the execution of the agreement.
IN WITNESS WHEREOF the parties have set their hands as of the date
first above written.
N-VIRO INTERNATIONAL CORPORATION
By /s/ Xxxxx Xxxxx
------------------
Xxxxx Xxxxx
Its /s/ Chief Executive Officer
--------------------------------
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Xxxxxxx X Xxxxxxxxx