EMPLOYMENT AGREEMENT
This Agreement is entered into on this 19th day of October, 1993, by and
between EarthShell Container Corporation ("ECC"), a California partnership, and
D. Xxxxx Xxxxxxx ("EMPLOYEE").
FACTUAL BACKGROUND
The following facts are not mere recitals, but are agreed upon and are
integral to this Agreement:
A. An offer of employment by ECC has been made to EMPLOYEE, contingent
upon the execution of this Agreement.
B. ECC is a research and development company which develops, licenses,
commercializes, and provides scientific and technical services to various other
companies, customers, and clients.
C. ECC business activities involve highly confidential and proprietary
technology and other commercial and business information.
D. By virtue of the employment relationship between D. Xxxxx Xxxxxxx and
ECC and the services performed by EMPLOYEE, EMPLOYEE will be exposed to
confidential and proprietary technology and other commercial and business
information pertaining to or belonging to ECC or its customers and clients.
E. It is the desire of ECC and EMPLOYEE to safeguard the confidential
information of ECC and its customers and clients and to establish the terms of
the employment relationship between ECC and EMPLOYEE.
F. It is the desire of ECC and EMPLOYEE to reduce the terms of their
relationship to writing.
NOW, THEREFORE, in consideration of the employment of EMPLOYEE, the parties
hereto agree as follows:
1. DEFINITIONS. The following definitions shall govern this Agreement
unless clearly stated to the contrary:
a. The term ECC shall specifically include EarthShell Container
Corporation, its partners, subsidiaries, affiliates (including but not
limited to Concrete Technology Corporation, National Cement & Ceramics
Laboratories, Inc., and E. Khashoggi Industries), and their officers,
directors, employees, consultants, and agents.
EXHIBIT 10.10
b. The term "ECC CLIENTS" shall mean and refer to all customers and
clients for whom ECC has in the past provided services, exchanged ECC
CONFIDENTIAL INFORMATION or licensed any type of technology; for whom ECC
now provides such services, ECC CONFIDENTIAL INFORMATION or licenses; and
for whom ECC may in the future provide services, ECC CONFIDENTIAL
INFORMATION, or licenses.
c. The term "ECC CONFIDENTIAL INFORMATION" shall mean and refer to all
financial, marketing, sales, strategy, personnel, and salary information;
all forms, legal documents, memoranda, software, computer programs, and
databases; all methods, processes, techniques, shop practices, formulas,
compositions, equipment, compilation of information or data, reports,
plans, tools, inventions, trade secrets, know-how, technical disclosures,
patent application, blueprints, specifications, information, and any other
proprietary or confidential technical information pertaining or belonging
to ECC; any documents prepared on behalf of ECC CLIENTS: the identities of
ECC CLIENTS; and other proprietary or confidential information pertaining
to the operations and business of ECC, and which have not been published or
disclosed to the general public. The ECC CONFIDENTIAL INFORMATION may be
embodied in any document, article, or tangible form, or in oral
disclosures.
d. The term "CLIENT CONFIDENTIAL INFORMATION" shall mean and refer to all
equipment, compilations of information or data, reports, plans, tools,
inventions, trade secrets, technical disclosures, patent applications,
blueprints, specifications, information, and any other proprietary or
confidential technical information pertaining or belonging to ECC CLIENTS,
as well as all financial, business, marketing, strategy, personnel, salary,
and other confidential business information pertaining or belonging to ECC
CLIENTS.
e. The term "LINE OF BUSINESS" shall refer to the investigation,
engineering or any other effort to improve the performance characteristics
of products made from hydraulically settable material (including but not
limited to cement, gypsum, and clay), and all manufacturing processes and
uses related to such products.
f. The term "TERRITORY" shall refer to the United States and any country
in which ECC sells products or services prior to the end of EMPLOYEE'S
employment therewith.
2. SAFEGUARDING OF ECC CONFIDENTIAL INFORMATION. EMPLOYEE acknowledges
that ECC CONFIDENTIAL INFORMATION has been developed by ECC at great expense and
effort, and that ECC CONFIDENTIAL INFORMATION is of independent economic value,
actual or potential, to ECC by reason of its not being generally known to and
not readily ascertainable by proper means by other persons who might obtain
economic benefit by its use. EMPLOYEE further acknowledges the confidentiality
of ECC CONFIDENTIAL INFORMATION. EMPLOYEE agrees that he/she will not, either
during the term of his/her employment by ECC or thereafter disclose or assist or
allow others to obtain or disclose ECC CONFIDENTIAL INFORMATION to any person or
entity outside ECC. EMPLOYEE further
agrees that he/she will not use ECC CONFIDENTIAL INFORMATION for any purpose not
specifically authorized by an officer of ECC.
3. SAFEGUARDING OF CLIENT CONFIDENTIAL INFORMATION. EMPLOYEE
acknowledges that CLIENT CONFIDENTIAL INFORMATION has been developed by ECC
CLIENTS at great expense and effort, and that CLIENT CONFIDENTIAL INFORMATION
is of independent economic value, actual or potential, to ECC CLIENTS by reason
of its not being generally known to and not readily ascertainable by proper
means by other persons who might obtain economic benefit by its use. EMPLOYEE
further acknowledges that ECC has received CLIENT CONFIDENTIAL INFORMATION under
conditions of trust and confidence, and that ECC and ECC CLIENTS have made
reasonable efforts under the circumstances to maintain the confidentiality of
CLIENT CONFIDENTIAL INFORMATION. EMPLOYEE agrees that he/she will not, either
during the term of his/her employment by ECC or thereafter disclose or assist or
allow others to obtain or disclose CLIENT CONFIDENTIAL INFORMATION to any person
or entity outside ECC without the express and authorization of ECC CLIENTS.
EMPLOYEE further agrees that he/she will not remove CLIENT CONFIDENTIAL
INFORMATION from the premises of ECC and will not use CLIENT CONFIDENTIAL
INFORMATION for any purpose not authorized by an officer of ECC.
4. INDEMNIFICATION. EMPLOYEE agrees to indemnify, defend, and hold
harmless ECC for any claims, counterclaims, or any other cause of action,
including all expenses, all judgments, and all attorneys' fees which ECC may
incur or be liable for as a result of EMPLOYEE disclosing CLIENT CONFIDENTIAL
INFORMATION without authorization from ECC.
5. RETURN OF ECC AND CLIENT CONFIDENTIAL INFORMATION. EMPLOYEE agrees
that upon request and in any event upon termination of EMPLOYEE's employment
with ECC, EMPLOYEE will immediately return to ECC any and all originals and
copies of ECC CONFIDENTIAL INFORMATION and CLIENT CONFIDENTIAL INFORMATION in
his/her possession or control.
6. RIGHTS IN INVENTIONS. All inventions, discoveries, improvements, and
innovations, whether patentable or not (including all data and records
pertaining thereto), which EMPLOYEE may invent, discover, originate, or conceive
during the term of employment with ECC, and which in any way relate to or are or
may be useful in connection with the business of ECC or ECC CLIENTS, shall be
the sole and exclusive property of ECC. EMPLOYEE shall promptly and fully
disclose each and all such inventions, discoveries, improvements, or innovations
to ECC. Furthermore, EMPLOYEE shall assign to ECC, EMPLOYEE's entire right,
title, and interest to any of the discoveries, inventions, improvements, and
innovations described above and any related United States or foreign patents and
patent applications. EMPLOYEE shall also execute any instruments considered
necessary by ECC to convey or perfect ECC's ownership thereof and EMPLOYEE shall
assist ECC in obtaining, defending, and enforcing ECC's rights therein.
7. RIGHTS IN COPYRIGHTABLE WORKS. EMPLOYEE agrees that all works made in
the course of his/her employment by ECC are works made for hire and that all
copyrights therein are the sole property of ECC. EMPLOYEE shall assign to ECC,
EMPLOYEE's entire right, title,
and interest to any copyrights and shall execute any instruments considered
necessary by ECC to convey and perfect ECC's ownership of the copyrights and
EMPLOYEE shall assist ECC in obtaining, defending, and enforcing ECC's rights
therein.
8. AGREEMENT NOT TO COMPETE. EMPLOYEE agrees he/she will not during the
term of employment by ECC, without the prior written consent of ECC, work for,
consult with, or be employed by any individual, business entity, governmental
agency, or other organization (hereinafter collectively referred to as "any
other person") involved in ECC's LINE OF BUSINESS. EMPLOYEE further agrees that
for a period of twelve (12) months after the end of employment by ECC, EMPLOYEE
will not, without the prior written consent of ECC, render service in the
TERRITORY within the LINE OF BUSINESS on EMPLOYEE's own behalf or as an EMPLOYEE
or consultant for any other person which is or could within the reasonably
foreseeable future become a competitor with ECC. The provisions of this
paragraph 8 are to be considered severed, as per the provisions of paragraph 12,
to the extent that they conflict with or are deemed non-enforceable in the State
of California.
9. INTEGRATION. This Agreement may not be modified except in a writing
signed by EMPLOYEE and an officer of ECC. Specifically, ECC may in its
discretion modify its other policies which may be adopted by ECC from time-to-
time without affecting the terms of this Agreement. In the event of any
conflict between such policies and this Agreement, the terms of this Agreement
shall control, particularly the terms of paragraph six (6) below shall control
over the terms of any conflicting policy.
10. SALARY AND OTHER BENEFITS.
(a) EMPLOYEE's original salary shall be set at One Hundred Thirty
Eight Thousand and no/100 Dollars ($138,000.00) per annum payable in
semi-monthly installments. It is anticipated that there will be an
annual review of EMPLOYEE's performance and salary level. In addition
EMPLOYEE shall be eligible for vacation pay and sick leave in
accordance with the standard policies of ECC which may from
time-to-time be in effect. Also EMPLOYEE shall be eligible to
participate in ECC's group medical insurance plan as it currently
exists or as it may, at ECC's sole discretion, be altered or amended.
(b) EMPLOYEE originally will work at ECC's Santa Barbara, California
facility, and employment will commence on October 15, 1993. Expense of
relocation to Santa Barbara, California will be reimbursed by ECC up to
------------------------ Dollars ($ 0 ).
(c) It is contemplated that ECC will adopt a stock option plan, bonus
plan or some other form of providing incentive compensation. EMPLOYEE
will be eligible to participate in any such plan, but the form and
extent of EMPLOYEE's participation shall be at the sole discretion of
ECC.
(d) EMPLOYEE's original employment will be in the capacity indicated
on the job description set forth on Exhibit "a" attached hereto.
However,
EMPLOYEE agrees to serve in such capacity as ECC from time-to-time
might designate.
11. TERMINATION OF EMPLOYMENT. Notwithstanding the provisions of
paragraph 10 above, EMPLOYEE acknowledges that neither this Agreement nor any of
the policies of ECC is a guarantee of continued employment of EMPLOYEE by ECC;
the employment covered hereby is deemed to be "at hire" at the discretion of
ECC; and that EMPLOYEE may be terminated at any time for cause, and at any time
without cause, subject to thirty (3O) days written notice.
12. TRANSFER OF AGREEMENT. This Agreement shall endure to the benefit of
and be binding upon ECC, it successors, and assignees, as well as upon
EMPLOYEE's heirs and legal representatives. The rights of ECC under this
Agreement shall be assignable.
13 SEVERABILITY. The provisions of this Agreement are severable, and in
the event that any provisions of this Agreement shall be held to be held
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
14. APPLICABLE LAW. This Agreement shall be interpreted, construed, and
enforced in accordance with the laws of the State of California.
15. ATTORNEY FEES. If either party hereto retains the services of an
attorney to enforce any provisions of this Agreement, the prevailing party shall
be entitled to its court costs and reasonable attorney fees.
Dated the 31 day of October, 1993.
EMPLOYEE
/s/ D. Xxxxx Xxxxxxx
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D. Xxxxx Xxxxxxx
EARTHSHELL CONTAINER CORPORATION
By: _________________________________
Xxxxx X. Xxxxxx
Vice Chairman
Chief Executive Officer
