Exhibit 10.2
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EXECUTIVE
EMPLOYMENT AGREEMENT
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BIODIESEL INDUSTRIES, INC.,
AS "EMPLOYER"
AND
XXXXXXX X. XXXXX, III,
AS "EXECUTIVE"
01 January 2001
EXECUTIVE EMPLOYMENT AGREEMENT
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I
PARTIES
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is effective as
of and on the 1st day of January, 2001, by and between BIODIESEL INDUSTRIES,
INC., a Nevada corporation (the "Employer"), and XXXXXXX X. XXXXX, III, an
individual domiciled in the State of Florida (the "Executive"). Employer and
Executive are sometimes referred to collectively herein as the "Parties", and
each individually as a "Party".
II
RECITALS
A. Employer is engaged in the business of producing, supplying, and
marketing biodiesel and biodiesel production facilities on a global scale.
B. Employer's principal place of business is currently located in Las
Vegas, Nevada (the "Principal Office").
C. Executive is acknowledged as having technical experience and
knowledge in the field of technology to be pursued by Employer, and Executive
represents to possess certain other skills and contacts which would enable
Executive to benefit Employer.
D. The Parties acknowledge that the Executive's abilities and services
are unique and essential to the prospects of Employer, and Employer has relied
upon Executive agreeing to serve Employer pursuant to this Agreement.
E. Employer desires to retain the services of Executive, and Executive
desires to be retained by Employer, all pursuant to the terms and conditions
contained herein.
F. NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
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III
EMPLOYMENT
3.1 POSITION. Employer hereby hires Executive to serve in the position
referenced on Schedule "A", attached hereto and incorporated herein by
reference. Executive shall do and perform all services, duties,
responsibilities, and acts (i) prescribed by the Bylaws of Employer, as amended
from time-to-time, (ii) which are customarily vested in the position assumed
hereunder by Executive, and (iii) necessary or advisable to carry out such
responsibilities, subject always to the direct supervision and control of the
Board of Directors of Employer (the "Board"), or all authorized designees. Said
services may include, but not be limited to, those listed on Schedule "A".
3.2 CERTAIN CHANGES AND ADDITIONAL RESPONSIBILITIES. Nothing herein
shall preclude the Board from changing Executive's title and duties if such
Board has concluded in its reasonable judgment that such change is in Employer's
best interests. However, at all times during the term of this Agreement,
Executive shall be employed as a senior executive of Employer, with appropriate
and commensurate compensation, title, rank and status. If Executive is elected
or appointed a director or officer of Employer or any subsidiary thereof during
the term of this Agreement, Executive will serve in such capacity without
further compensation.
3.3 TIME AND EFFORT.
3.3.1. ENTIRE PRODUCTIVE TIME. Executive shall devote
Executive's entire productive time, attention, knowledge and skill to the
business and interests of Employer. Employer shall be entitled to all the
benefits and profits arising from or incident to any and all services performed
by Executive pursuant to this Agreement.
3.3.2. EXCEPTIONS. Nothing contained in Section 3.3.1., above,
shall be construed to prevent Executive from:
(a) investing his personal assets in businesses which
do not compete with Employer, in such form or manner as will not require any
services on the part of Executive in the operation or the affairs of the
companies in which such investments are made and in which his participation is
solely that of an investor;
(b) purchasing securities in any corporation whose
securities are regularly traded provided that such purchase shall not result in
his collectively owning beneficially at any time five percent (5%) or more of
the equity securities of any corporation engaged in a business competitive to
that of Employer; and
(c) participating in conferences, preparing or
publishing papers or books or teaching.
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3.4 TERM.
3.4.1. INITIAL TERM. The Term of this Agreement shall commence
on the ____ day of ____________, 2000, and shall continue for a period of
forty-eight (48) months, unless sooner terminated as provided for herein (the
"Initial Term").
3.4.2. RENEWAL TERMS. This Agreement shall remain in full
force and effect and shall renew for a maximum of three (3) additional twelve
(12) month periods (each referred to as a "Renewal Term"), provided that neither
of the Parties, at least ninety days (90) prior to the end of the Initial Term,
and then any Renewal Term, gives written notice to the other of that Party's
intent to not have the Agreement remain in full force and effect for the next
Renewal Term.
3.4.3. TERM DEFINED. For purposes of this Agreement, the word
"Term" shall specifically include the Initial Term and all Renewal Terms
hereunder.
3.5 LOCATION. Except for routine travel incident to the business of
Employer, Executive's services hereunder shall be principally performed at the
Principal Office, or such other location within the surrounding area of the
Principal Office.
IV
COMPENSATION
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4.1 BASE SALARY. Employer agrees to pay Executive and Executive agrees
to accept as compensation for the services and obligations set forth herein, as
Base Salary, the sum referenced on Schedule "A", per annum, which sum shall be
paid to Executive by Employer in equal semi-monthly installments to be tendered
to Executive on the first and fifteenth day of each month, or at such other
intervals as may be mutually agreed upon by Employer and Executive.
4.1.1. NECESSARY DEDUCTIONS. Employer shall deduct from the
Base Salary amounts sufficient to cover applicable federal, state, and/or local
income tax withholdings, and any other amounts which Employer is required to
withhold by applicable law.
4.1.2. YEARLY REVIEW. On each year anniversary date hereunder,
Executive's Base Salary shall be reviewed by the Board or the Compensation
Committee of the Board (the "Compensation Committee"). Base Salary may be
increased, but may never be decreased, in the sole discretion of the Board or
the Compensation Committee.
4.2 STOCK OPTIONS. As additional consideration hereunder, Employer
shall grant to Executive stock options to acquire stock in Employer. Said stock
options shall be granted pursuant to the Stock Option Plan adopted (or to be
adopted) by Employer, and pursuant to a separate Stock Option Agreement to be
executed by and between Employer and Executive.
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4.3 ADDITIONAL ANNUAL COMPENSATION. Employer may, but is not obligated
to, pay Executive as Additional Annual Compensation, during each calendar year
ending during the Term of this Agreement, such sums as may annually be
determined by the Board, or the Compensation Committee, including bonus, regular
and cost of living increases and adjustments.
4.4 SALARY ACCRUAL. In recognition of Employer's status as a
"development stage" company, as that term is defined in Statement of Financial
Accounting Standards No. 7 (June 1, 1975, the Parties have agreed that the Base
Salary to be paid to Executive under Section 4.1, above shall be accrued up to
and until Employer has the financial ability to pay Executive the Base Salary.
In accruing the Base Salary, Employer shall maintain accurate books and records
in accordance with generally accepted accounting principles consistently
applied, and shall reflect all earned, accrued, and unpaid Base Salary as a
liability of Employer. Upon Employer receiving proceeds from all sources
(whether fees for goods or services, debt financing, or equity financing), the
Board shall determine in good faith the manner in which the accrued Base Salary
shall be paid, and when the Base Salary shall be paid in full with no further
accrual. Upon a decision to make no further accruals of Base Salary, Employer
shall require Executive's express consent, in his sole discretion, to any
further accruals. All accruals hereunder shall have no bearing on Executive's
sole discretion to agree on future accruals, notwithstanding the financial
condition of Employer.
V
EXECUTIVE BENEFITS
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5.1 EMPLOYER POLICY. During the Term of this Agreement, Executive shall
be entitled to participate in employee benefit plans or programs of Employer, if
any, to the extent that his position, tenure, salary, age, health and other
qualifications make him eligible to participate, subject to the rules and
regulations applicable thereto. Such additional benefits shall include, subject
to the approval of the Board, full medical, dental and income insurance, and
participation in qualified pension and profit sharing plans.
5.2 AUTOMOBILE. As soon as Employer is financially able, Employer shall
furnish Executive, without cost to Executive, with the use of an automobile of
Executive's choice for Executive's use in connection with the performance of
Executive's duties, and shall reimburse Executive for all costs of operation and
maintenance of such automobile.
5.3 BUSINESS EXPENSES. Employer will reimburse Executive for all
reasonable business expenses incurred by Executive in the performance of
Executive's duties provided that:
(a) Each such expenditure qualifies as a proper deduction for
Employer for federal income tax purposes; and
(b) Executive furnishes to Employer adequate records and other
documentary evidence required to substantiate such expenditures as a proper
deduction for federal income tax purposes; and
(c) Prior to incurring any such expense in excess of Ten
Thousand Dollars ($10,000), Executive receives express authorization from the
Board; and
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(d) Any reimbursed expense payment to Executive that is
disallowed, in whole or in part, as a deductible business expense of Employer
for federal income tax purposes shall be immediately repaid to Employer by
Executive to the full extent of such disallowance.
5.4 VACATION TIME. Executive shall be granted four (4) weeks paid
vacation for each calendar year during the Term, with said time being prorated
for the calendar year in which Executive celebrates his first year of full-time
employment. However, vacation shall only be taken at such times as not to
interfere with the necessary performance of Executive's duties and obligations
under this Agreement.
5.5 INDEMNIFICATION. Employer and Executive are parties to an Indemnity
Agreement, pursuant to which, among other things, Employer has agreed, on the
terms and conditions therein set forth, to indemnify Executive against certain
claims arising by reason of the fact that he is or was an officer or director of
Employer. In addition to all rights under the Indemnification Agreement, the
Parties further agree that all liabilities incurred by Executive in his capacity
as an officer hereunder shall be incurred for the account of Employer, and
Executive shall not be personally liable therefore. Executive shall not be
liable to Employer, or any of its respective subsidiaries, affiliates,
employees, officers, directors, agents, representatives, successors, assigns,
stockholders, and their respective subsidiaries and affiliates, and Employer
shall, and hereby agrees to, indemnify, defend and hold Executive harmless from
and against any and all damages and/or loss or liability (including, without
limitation, all cost of defense thereof), for any acts or omissions in the
performance of service under and within the scope of this Agreement on the part
of Executive.
5.6 CHANGE IN CONTROL PAYMENTS.
5.6.1. CHANGE IN CONTROL. For purposes of this Agreement, a
"Change in Control" of Employer shall be deemed to have occurred if (a) there
shall be consummated (i) any consolidation or merger of Employer into or with
another person, as such term in used in Sections 13(d)(3) and 14(d)(2) of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), in which
Employer is not the continuing or surviving corporation or pursuant to which
shares of Employer's common stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger, or (ii) any sale, lease or other transfer (in one transaction
or a series of related transactions) of all or a significant portion of the
assets of Employer, or (b) the shareholders of Employer approve any plan or
proposal for the liquidation or dissolution of Employer, or (c) any person who
is not now the owner of ten percent (10%) or more of Employer's outstanding
equity securities shall become the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of twenty percent (20%) or more of Employer's
outstanding equity securities, or (d) during any period of two consecutive
years, individuals who at the beginning of such period constitute the entire
Board shall cease for any reason to constitute a majority thereof unless the
election, or the nomination for election by Employer's shareholders, of each new
director was approved by a vote of at least two-thirds of the directors then
still in office who were directors in the beginning of the period.
5.6.2. SEVERANCE PAYMENT. Upon the occurrence of a Change in
Control of Employer, the employment of Executive hereunder shall terminate and
Employer shall pay to Executive in cash, on the fifth day following the date on
which the Change of Control occurs (which for the purposes of this Agreement,
shall be the "Termination Date"), the following:
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(a) All accrued and unpaid salary and other
compensation payable to Executive by Employer for services rendered by Executive
to Employer through the Termination Date;
(b) All accrued and used vacation and sick pay
payable to Executive by Employer with respect to services rendered by Executive
to Employer through the Termination Date; and
(c) Severance pay in an amount equal to the Base
Salary Executive would have earned during the four (4) years following the
Termination Date.
5.6.3. CONTINUATION OF BENEFITS. Employer shall continue for a
period of sixty (60) months following the Termination Date to provide Executive
with all benefits that would have been payable to him pursuant to Sections 5.1
and 5.2 hereof if Executive had been employed by Employer during such period.
5.6.4. PROVISION OF SERVICES FOLLOWING CHANGE IN CONTROL. At
the request of Employer, Executive shall continue to serve hereunder for a
period of up to one hundred eighty (180) days following the Termination Date. If
Employer requests Executive to perform such services, Executive shall be
compensated from and after the Termination Date for the period that Executive
actually remains employed by Employer at his then current Base Salary. Any such
amounts payable to Executive shall be in addition to and not in lieu of the
amounts payable to Executive under Section 5.6.2, above. Upon the later to occur
of an occurrence of a Change of Control or the termination of any period during
which Executive continues to provide services as aforesaid, Executive's
employment hereunder shall terminate.
VI
TERMINATION
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6.1 TERMINATION IN CASE OF DEATH.
6.1.1. TERMINATION EVENT. Executive's employment hereunder
shall terminate immediately upon the death of Executive.
6.1.2. RESULT OF TERMINATION. Upon termination of Executive's
employment pursuant to this Section 6.1, Employer shall pay to Executive's
estate, on the Termination Date, a lump sum payment of an amount equal to (i)
all accrued and unused vacation and sick pay payable to Executive by Employer
with respect to serviced rendered by Executive to Employer through the
Termination Date, and (ii) the amount Executive would have earned as Base Salary
during the five (5) years following the Termination Date. In addition to the
foregoing, and notwithstanding the provisions of any other agreement to the
contrary, Employer shall continue to provide for the benefit of Executive's
family the medical benefits referred to in Section 5.1 hereof for sixty (60)
months following the Termination Date.
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6.2 TERMINATION IN CASE OF DISABILITY.
6.2.1. TERMINATION EVENT. If Executive suffers a physical or
mental disability which results in Executive being unable to perform his duties
hereunder for a twenty-six (26) consecutive week period, then the Board shall
select a qualified physician to examine Executive and review his physical and
mental capacity. If such physician determined in good faith that such physical
or mental disability renders Executive incapable of performing his duties
hereunder for a period of at least 26 consecutive weeks following the date of
such physician's written opinion, then Executive's employment shall terminate
effective 26 weeks following the date of such physician's written opinion.
6.2.2. RESULT OF TERMINATION. Upon termination of Executive's
employment pursuant to this Section 6.2, Employer shall pay to Executive, on the
Termination Date, a lump sum payment of an amount equal to (i) all accrued and
unpaid salary and other compensation payable to Executive by Employer and all
accrued and unused vacation and sick pay payable to Executive by Employer with
respect to services rendered by Executive to Employer through the Termination
Date, and (ii) the amount Executive would have earned as Base Salary during the
five (5) years following the Termination Date. However such amount shall be
reduced by the amount of any payments to be paid to Executive under any
long-term disability insurance policy maintained by Employer for the benefit of
Executive. In addition to the foregoing, and notwithstanding the provisions of
any other agreement to the contrary, Employer shall continue to provide to
Executive all other benefits referred to in Sections 5.1 and 5.2 hereof for
sixty (60) months following the Termination Date.
6.3 TERMINATION BY EXECUTIVE FOR CAUSE.
6.3.1. TERMINATION EVENT. The employment of Executive
hereunder shall terminate immediately upon written notice delivered by Executive
to Employer upon the occurrence of any of the following events:
(a) The willful breach of any of the material
obligations of Employer to Executive under this Agreement.
(b) The Employer's Principal Office is moved to a
location outside of Las Vegas, Nevada, and to a location not in the State of
Florida; or
(c) Executive fails to be reelected to, or is removed
from, the Board of Directors of Employer.
6.3.2. RESULT OF TERMINATION. Upon termination of Executive's
employment pursuant to this Section 6.3, Employer shall pay to Executive, on the
Termination Date, a lump sum payment of an amount equal to (i) all accrued and
unpaid salary and other compensation payable to Executive by Employer and all
accrued and unused vacation and sick pay payable to Executive by Employer with
respect to services rendered by Executive to Employer through the Termination
Date, and (ii) the amount Executive would have earned as Base Salary during the
(5) five years following the Termination Date. In addition to the foregoing, and
notwithstanding the provisions of any other agreement to the contrary, Employer
shall continue to provide to Executive all other benefits that would otherwise
be payable to Executive pursuant to Sections 5.1 and 5.2 hereof for the sixty
(60) months following the Termination Date.
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6.4 TERMINATION BY EXECUTIVE WITHOUT CAUSE.
6.4.1. TERMINATION EVENT. This Agreement shall terminate
immediately upon delivery to Employer of thirty (30) days written notice of
termination by Executive without cause.
6.4.2. RESULT OF TERMINATION. Upon termination of Executive's
employment pursuant to this Section 6.4, Employer shall pay to Executive, on the
Termination Date, a lump sum payment of an amount equal to all accrued and
unpaid salary and other compensation payable to Executive by Employer and all
accrued and unused vacation and sick pay payable to Executive by Employer with
respect to services rendered by Executive to Employer through the Termination
Date.
6.5 TERMINATION BY EMPLOYER WITH CAUSE.
6.5.1. TERMINATION EVENT. This Agreement shall terminate upon
thirty (30) days prior written notice from Employer to Executive of the
termination of Executive's employment "for cause" (as defined below), provided
that Executive does not cease the conduct constituting "for cause" prior to the
expiration of such thirty (30) day period. For purposes of this Agreement, the
term "for cause" shall include the following:
(a) Any action by Executive involving the violation
of any criminal statute constituting a felony;
(b) Gross misconduct in the performance of
Executive's duties hereunder;
(c) The failure by Executive to follow or comply with
the policies and procedures of Employer, or the written directives of the Board
of Directors of Employer, provided that such policies, procedures or directives
are consistent with Executive's duties hereunder;
(d) The violation by Executive of any material
provision of this Agreement; or
(e) The repeated failure by Executive to render full
and proper services as required by the terms of this Agreement.
6.5.2. RESULT OF TERMINATION. Upon termination of Executive's
employment pursuant to this Section 6.5, Employer shall pay to Executive, on the
Termination Date, a lump sum payment of an amount equal to all accrued and
unpaid salary and other compensation payable to Executive by Employer and all
accrued and unused vacation and sick pay payable to Executive by Employer with
respect to services rendered by Executive to Employer through the Termination
Date.
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6.6 TERMINATION BY EMPLOYER WITHOUT CAUSE.
6.6.1. TERMINATION EVENT. The employment of Executive shall
terminate immediately upon delivery to Executive of written notice of
termination by Employer, which shall be deemed to be "without cause" unless
termination is expressly stated to be pursuant to Sections 6.1 or 6.2.
6.6.2. RESULT OF TERMINATION. Upon termination of Executive's
employment pursuant to this Section 6.6, Employer shall pay to Executive, on the
Termination Date, a lump sum payment of an amount equal to (i) all accrued and
unpaid salary and other compensation payable to Executive by Employer and all
accrued and unused vacation and sick pay payable to Executive by Employer with
respect to services rendered by Executive to Employer through the Termination
Date, and (ii) the amount Executive would have earned as Base Salary during the
five (5) years following the Termination Date In addition to the foregoing, and
notwithstanding the provisions of any other agreement to the contrary, Employer
shall continue to provide to Executive all other benefits that would otherwise
be payable to Executive pursuant to Sections 5.1 and 5.2 hereof for the sixty
(60) months following the Termination Date.
6.7 TERMINATION UPON THE EXPIRATION OF THE TERM. Upon termination of
this Agreement upon the scheduled expiration of the Term pursuant to Section
3.4, above, Employer shall pay to Executive, on the Termination Date, a lump sum
payment equal to all accrued and unpaid salary and other compensation payable to
Executive by Employer and all accrued and unused vacation and sick pay payable
to Executive by Employer with respect to services rendered by Executive to
Employer through the Termination Date.
6.8 DISPUTES AS TO TERMINATION. If either party disputes any aspect of
Executive's termination hereunder, the disputing party may demand arbitration of
the dispute by written notice to the other. As part of their decision, the
arbitrators may allocate the cost of arbitration, including fees of attorneys
and experts, as they deem fair and equitable in light of all relevant
circumstances. Such arbitration shall be commenced not later than thirty (30)
days following the date of delivery of the notice of arbitration by a panel of
three qualified arbitrators, one who shall be designated by Executive, one by
Employer and one (who shall act as chairman of the arbitration panel) by the
first two arbitrators so appointed. The arbitration shall be conducted in Xxxxx
County, Nevada, in accordance with the rules promulgated and adopted by the
American Arbitration Association (with the right of discovery as provided in the
Nevada Revised Statutes regarding Civil Procedure by all Parties), and each
Party shall retain the right to cross-examine the opposing Party's witnesses,
either through legal counsel, expert witnesses or both. The majority decision of
the arbitration panel shall be final, binding and conclusive on all Parties
(without any right of appeal therefrom) and shall not be subject to judicial
review.
6.9 TERMINATION AND PAYMENT UNDER SECTION 5.6. In the event of a
termination and payment under Section 5.6, above, Executive shall not be
entitled to any further payments under this Article VI.
6.10 TERMINATION DATE. For purposes of this Agreement, the term
"Termination Date" shall mean that date on which Executive's employment is
terminated pursuant to this Article VI.
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VII
INTENDED TAX RESULTS
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The Parties believe that the payments pursuant to Section 5.6 and
Article VI, above, do not constitute "Excess Parachute Payments" under Section
280G of the Internal Revenue Code of 1986, as amended (the "Code").
Notwithstanding such belief and intent, if any benefit under these provisions
constitutes an "Excess Parachute Payment", Employer shall pay to Executive an
additional amount (the "Tax Payment") such that (i) the excess of all Excess
Parachute Payments (including payments under this sentence) over the sum of
excise tax thereon under Section 4999 of the Code and income tax thereon under
Subtitle A of the Code and under applicable state law is equal to (ii) the
excess of all Excess Parachute Payments (excluding payments under this sentence)
over income tax thereon under Subtitle A of the Code and under applicable state
law is equal to (iii) the excess of all Excess Parachute Payments (excluding
payments under this sentence) over income tax thereon under Subtitle A of the
Code and under applicable state law. Such Tax Payment shall be paid to Executive
concurrently with the severance payment referred to in Section 5.6.2., above.
VIII
NO MITIGATION
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The payments required to be paid to Executive by Employer pursuant to
Section 5.6.2. and Article VI, above, shall not be reduced by or mitigated by
amounts which Executive earns or is capable of earning during any period
following his Termination Date.
IX
CONFIDENTIAL INFORMATION AND RELATED COVENANTS
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9.1 TRADE SECRETS COVENANT. Executive shall not at any time, whether
during or subsequent to the term of Executive's employment, unless specifically
consented to in writing by Employer, either directly or indirectly use, divulge,
disclose or communicate to any person, firm, or corporation, in any manner
whatsoever, any confidential information concerning any matters affecting or
relating to the business of Employer, including, but not limited to, the names,
buying habits, or practices of any of its customers, its' marketing methods and
related data, the names of any of its vendors or suppliers, costs of materials,
the prices it obtains or has obtained or at which it sells or has sold its
products or services, manufacturing and sales, costs, lists or other written
records used in Employer's business, compensation paid to employees and other
terms of employment, or any other confidential information of, about or
concerning the business of Employer, its manner of operation, or other
confidential data of any kind, nature, or description. The Parties hereby
stipulate that as between them, the foregoing matters are important, material,
and confidential trade secrets and affect the successful conduct of Employer's
business and its goodwill, and that any breach of any term of this Section 9.1
is a material breach of this Agreement.
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9.2 CUSTOMER ACCOUNTS COVENANT. As used herein, the term "Customer
Accounts" shall mean all accounts, clients, customers, and the like of Employer
and its affiliates, subsidiaries, licensees, and business associations, whether
now existing or hereafter developed or acquired, including any and all accounts
developed or acquired by or through the efforts of Executive. During and through
the Term of this Agreement and continuing for a period of twenty four (24)
months immediately following the termination of Executive's employment with
Employer, Executive shall not directly or indirectly make known to any person,
firm, corporation or entity the names or addresses of any of the Customer
Accounts or any other information pertaining to them. During this same time
period, Executive shall not, directly or indirectly, for Executive or any other
person, firm, corporation or entity, divert, take away, call on or solicit, or
attempt to divert, take away, call on or solicit, any of the Customer Accounts,
including but not limited to those Customer Accounts which Executive called or
with whom Executive became acquainted during Executive's employment with
Employer.
9.3 EMPLOYEES COVENANT. During and through the Term of this Agreement
and continuing for a period of twenty four (24) months immediately following the
termination of Executive's employment with Employer, Executive shall not,
directly or indirectly, cause or induce, or attempt to cause or induce, any
employee of Employer to terminate his or her employment with Employer, as such
employment exists at any time following the execution of this Agreement.
9.4 BOOKS AND RECORDS. All equipment, notebooks, documents, memoranda,
reports, files, samples, books, correspondence, lists, computer disks and data
bases, computer programs and reports, computer software, and all other written,
graphic and computer generated or stored records affecting or relating to the
business of Employer which Executive shall prepare, use, construct, observe,
possess, or control shall be and remain the sole and exclusive property of
Employer, and shall constitute trade secret information of Employer. Within five
(5) day so of the Termination Date, Executive shall promptly deliver to Employer
all such equipment, notebooks, documents, memoranda, reports, files, samples,
books, correspondence, lists, computer disks and data bases, computer programs
and reports, computer software, and all other written, graphic and computer
generated or stored records relating to the business of Employer which are or
have been in the possession or under the control of Executive.
9.5 INJUNCTIVE RELIEF. Executive acknowledges that if Executive
violates any of the provisions of this Article IX, it will be difficult to
determine the amount of damages resulting to Employer. In addition to any other
remedies which it may have, Employer shall also be entitled to temporary and
permanent injunctive relief without the necessity of proving actual damages.
9.6 ENFORCEMENT OF COVENANTS. It is the desire and intent of the
Parties that the provisions of this Article IX shall be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular
portion of this Article IX shall be adjudicated to be invalid or unenforceable,
this Article IX shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of this Article in the particular jurisdiction in which
such adjudication is made.
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X
PROPRIETARY INTEREST
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10.1 SEPARATE AGREEMENT. Employer and Executive are parties to a Trade
Secrets and Proprietary Information Assignment Agreement (the "Assignment
Agreement"), pursuant to which, among other things, Executive has agreed to
transfer and assign of his rights, title, and interest in trade secrets and
proprietary information reasonably related to the business of Employer.
10.2 INVENTIONS. In addition to all rights under the Assignment
Agreement, the Parties further agree that all inventions, improvements, ideas
and disclosures (whether or not patentable) conceived or reduced to practice
(actually or constructively) by Executive during the Term of this Agreement
which are directly or indirectly related to Employer's business shall be the
property of Employer. Executive shall execute and deliver to Employer, at
Employer's expense, all instruments of assignment necessary to vest title to
such intangible rights in Employer, and, if requested, to execute all
applications for issuance of Letters Patent in the United States or abroad and
assignments thereof.
10.3 SPECIFIC EXCLUSION. Specifically excluded from this Article X are
any rights in an invention that Executive developed entirely on his own time
without using Employer's equipment, supplies, facilities, or trade secret
information, except for those inventions that are either:
(a) Directed related at the time of conception or reduction to
practice of the invention to Employer's business, or actual or demonstrably
anticipated research or development of Employer; or
(b) Result from any work performed by Executive for Employer.
XI
REPRESENTATIONS AND WARRANTIES OF EXECUTIVE
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Executive hereby represents and warrants to Employer the following as
of and on the day this Agreement is executed:
(a) The execution, delivery and consummation of this Agreement
will comply with all applicable law and will not:
(i) Violate any judgment, order, writ or decree of
any court or administrative body applicable to Executive;
(ii) Result in the breach of, constitute a default
under, constitute an event which with notice or lapse of time, or both, would
become a default under, or result in the creation of any right to proceed
against Employer under any agreement, commitment, contract (written or oral) or
other instrument to which Executive is a party.
(b) Executive is not subject to any non-compete,
non-disclosure or similar agreement (whether oral or written) with any third
party.
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XII
REPRESENTATIONS AND WARRANTIES OF EMPLOYER
------------------------------------------
Employer hereby represents and warrants to Executive the following as
of and on the day this Agreement is executed:
(a) Employer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Nevada.
(b) Employer has the power and authority to own and operate
its properties and to carry on its business as now being conducted.
(c) Employer has the authority to enter into, execute and
deliver this Agreement, and the agreements referred to herein, and to consummate
the transactions contemplated hereunder.
(d) The execution, delivery and consummation of this Agreement
will comply with all applicable law and will not:
(i) Violate any judgment, order, writ or decree of
any court or administrative body applicable to Employer;
(ii) Result in the breach of, constitute a default
under, constitute an event which with notice or lapse of time, or both, would
become a default under, or result in the creation of any right to proceed
against Employer under any agreement, commitment, contract (written or oral) or
other instrument to which Employer is a party.
(e) Upon the execution and delivery of this Agreement,
Employer will have all requisite power to enter into this Agreement and to
consummate the transactions contemplated hereunder. Thereafter, this Agreement,
and the other agreements referred to herein, will constitute the valid and
binding obligations of Employer, and will be enforceable in accordance with
their respective terms.
/ / / / /
/ / / / /
/ / / / /
XIII
EXTENT OF RELATIONSHIP
----------------------
EXECUTIVE HEREBY ACKNOWLEDGES THAT THIS AGREEMENT (AND ALL OTHER
REFERENCES HEREIN) THE SOLE AGREEMENT BETWEEN EMPLOYER AND EXECUTIVE
REGARDING THE EXTENT OF THE EMPLOYMENT RELATIONSHIP BETWEEN EMPLOYER
AND EXECUTIVE. THERE IS NO OTHER AGREEMENT, EXPRESS OR IMPLIED, BETWEEN
EMPLOYER AND EXECUTIVE FOR EMPLOYMENT BEYOND THE TERM SPECIFIED HEREIN
OR UNDER ANY CONDITIONS OTHER THAN THOSE STATED HEREIN. EMPLOYER AND
EXECUTIVE BOTH HAVE THE RIGHT TO TERMINATE THIS AGREEMENT ONLY IN
STRICT COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
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XIV
NOTICES
-------
All notices, requests, demands and other communications required or
permitted to be given hereunder shall be effected pursuant to Section 15.13,
below, as follows:
If to Employer : With a copy to:
--------------- --------------
Xx. Xxxxxxx Xxxxx Xxxxx X. Xxxxxxxxx, Esq.
BIODIESEL INDUSTRIES, INC. SPECTRUM LAW GROUP, LLP
000 Xxxxxxx Xxxx 0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000 Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
If to Executive:
---------------
Xx. Xxxxxxx X. Xxxxx, III
000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
XV
ADDITIONAL PROVISIONS
---------------------
15.1 EXECUTED COUNTERPARTS. This Agreement may be executed in any
number of original, fax or copied counterparts, and all counterparts shall be
considered together as one agreement. A faxed or copied counterpart shall have
the same force and effect as an original signed counterpart. Each of the Parties
hereby expressly forever waives any and all rights to raise the use of a fax
machine to deliver a signature, or the fact that any signature or agreement or
instrument was transmitted or communicated through the use of a fax machine, as
a defense to the formation of a contract.
15.2 SUCCESSORS AND ASSIGNS. Except as expressly provided in this
Agreement, each and all of the covenants, terms, provisions, conditions and
agreements herein contained shall be binding upon and shall inure to the benefit
of the successors and assigns of the Parties hereto.
15.3 SECTION HEADINGS. The section headings used in this Agreement are
inserted for convenience and identification only and are not to be used in any
manner to interpret this Agreement.
14
15.4 SEVERABILITY. Each and every provision of this Agreement is
severable and independent of any other term or provision of this Agreement. If
any term or provision hereof is held void or invalid for any reason by a court
of competent jurisdiction, such invalidity shall not affect the remainder of
this Agreement.
15.5 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Nevada, without giving effect to any choice or conflict of law
provision or rule (whether of the State of Nevada or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Nevada. If any court action is necessary to enforce the terms and
conditions of this Agreement, the Parties hereby agree that the Superior Court
of Nevada, County of Xxxxx, shall be the sole jurisdiction and venue for the
bringing of such action.
15.6 ENTIRE AGREEMENT. This Agreement, and all references herein,
contains the entire understanding among the Parties hereto and supersedes any
and all prior written or oral agreements, understandings, and negotiations
between them respecting the subject matter contained herein.
15.7 ADDITIONAL DOCUMENTATION. The Parties hereto agree to execute,
acknowledge and cause to be filed and recorded, if necessary, any and all
documents, amendments, notices and certificates which may be necessary or
convenient under the laws of the State of Nevada.
15.8 ATTORNEY'S FEES. If any legal action (including arbitration) is
necessary to enforce the terms and conditions of this Agreement, the prevailing
Party shall be entitled to costs and reasonable attorney's fees.
15.9 AMENDMENT. This Agreement may be amended or modified only by a
writing signed by all Parties.
15.10 REMEDIES CUMULATIVE. The remedies of the Parties under this
Agreement are cumulative and shall not exclude any other remedies to which any
person may be lawfully entitled.
15.11 WAIVER. No failure by any Party to insist on the strict
performance of any covenant, duty, agreement, or condition of this Agreement or
to exercise any right or remedy on a breach shall constitute a waiver of any
such breach or of any other covenant, duty, agreement, or condition.
15.12 ASSIGNABILITY. This Agreement is not assignable by either Party
without the expressed written consent of all Parties.
15.13 NOTICES. All notices, requests and demands hereunder shall be in
writing and delivered by hand, by facsimile transmission, by mail, by telegram
or by recognized commercial over-night delivery service (such as Federal
Express, UPS or DHL), and shall be deemed given (a) if by hand delivery, upon
such delivery; (b) if by facsimile transmission, upon telephone confirmation of
receipt of same; (c) if by mail, forty-eight (48) hours after deposit in the
United States mail, first class, registered or certified mail, postage prepaid;
(d) if by telegram, upon telephone confirmation of receipt of same; or, (e) if
by recognized commercial over-night delivery service, upon such delivery.
15.14 TIME. All Parties agree that time is of the essence as to this
Agreement.
15
15.15 DISPUTES. The Parties agree to cooperate and meet in order to
resolve any disputes or controversies arising under this Agreement. Should they
be unable to do so, then either may elect arbitration under the rules of the
American Arbitration Association, and both Parties are obligated to proceed
thereunder, to resolve all disputes, other than those arising under Section 6.8,
above. Arbitration shall proceed in Xxxxx County, and the Parties agree to be
bound by the arbitrator's award, which may be filed in the Superior Court of
Nevada, County of Xxxxx. The Parties consent to the jurisdiction of Nevada
Courts for enforcement of this determination by arbitration. The prevailing
Party shall be entitled to reimbursement for his attorney's fees and all costs
associated with arbitration. In any arbitration proceeding conducted pursuant to
the provisions of this Section, both Parties shall have the right to conduct
discovery, to call witnesses and to cross-examine the opposing Party's
witnesses, either through legal counsel, expert witnesses or both, and the
provisions of the Nevada Revised Statutes regarding civil procedure (Right to
Discovery; Procedure and Enforcement) are hereby incorporated into this
Agreement by this reference and made a part hereof.
15.16 PROVISION NOT CONSTRUED AGAINST PARTY DRAFTING AGREEMENT. This
Agreement shall be deemed to have been drafted by all Parties and, in the event
of a dispute, no Party hereto shall be entitled to claim that any provision
should be construed against any other Party by reason of the fact that it was
drafted by one particular Party.
15.17 INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof as if set out in full herein.
15.18 RECITALS. The facts recited in Article II, above, are hereby
conclusively presumed to be true as between and affecting the Parties.
15.19 CONSENTS, APPROVALS AND DISCRETION. Except as herein expressly
provided to the contrary, whenever this Agreement requires consent or approval
to be given by a Party, or a Party must or may exercise discretion, the Parties
agree that such consent or approval shall not be unreasonably withheld,
conditioned, or delayed, and such discretion shall be reasonably exercised.
Except as otherwise provided herein, if no response to a consent or request for
approval is provided within ten (10) days from the receipt of the request, then
the consent or approval shall be presumed to have been given.
15.20 NO THIRD PARTY BENEFICIARIES. This Agreement has been entered
into solely by and between Employer and Executive, solely for their benefit.
There is no intent by either Party to create or establish a third party
beneficiary to this Agreement, and no such third party shall have any right to
enforce any right, claim, or cause of action created or established under this
Agreement.
15.21 BEST EFFORTS. The Parties shall use and exercise their best
efforts, taking all reasonable, ordinary and necessary measures to ensure an
orderly and smooth relationship under this Agreement, and further agree to work
together and negotiate in good faith to resolve any differences or problems
which may arise in the future.
16
15.22 DEFINITIONAL PROVISIONS. For purposes of this Agreement, (i)
those words, names, or terms which are specifically defined herein shall have
the meaning specifically ascribed to them; (ii) wherever from the context it
appears appropriate, each term stated either in the singular or plural shall
include the singular and plural; (iii) wherever from the context it appears
appropriate, the masculine, feminine, or neuter gender, shall each include the
others; (iv) the words "hereof", "herein", "hereunder", and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole,
and not to any particular provision of this Agreement; (v) all references to
"Dollars" or "$" shall be construed as being United States dollars; and, (vi)
all references to all statutes, statutory provisions, regulations, or similar
administrative provisions shall be construed as a reference to such statute,
statutory provision, regulation, or similar administrative provision as in force
at the date of this Agreement and as may be subsequently amended.
15.23 SURVIVAL. Notwithstanding anything herein to the contrary, the
provisions of Section 5.6 and Articles VI, VII, VIII, and IX, inclusive, shall
expressly survive the termination of this Agreement.
XVI
EXECUTION
The Parties have executed this Agreement in one or more counterparts
which, taken together, shall constitute one agreement. This Agreement shall be
effective as of and on the date set forth in Section 3.4.1.
EMPLOYER: EXECUTIVE:
-------- ---------
BIODIESEL INDUSTRIES, INC.,
a Nevada corporation
----------------------------
NAME: XXXXXXX X. XXXXX, III
BY:__________________________
DATED:______________________
NAME:_______________________
TITLE:_______________________
DATED:______________________
17
SCHEDULE "A"
AGREEMENT
SECTION MATTER COMMENTS
------- ------ --------
3.1 Position/Title Executive shall serve as Employer's
Chief Executive Officer, and Chairman
of the Board of Directors.
3.1 Additional services ________.
4.1 Base salary $250,000 per year.
18
