Exhibit 10.1
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CONSULTING AGREEMENT
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This Consulting Agreement (the "Consulting Agreement") is made and
entered into as of February 13, 2006 (the "Execution Date"), by and between
N-Viro International Corporation, a Delaware corporation (the "Company"), and
DJH Holdings, LLC to obtain the services of its officer, Xxxxxx X. Xxxxxxxxx, an
individual (collectively "Consultant").N-Viro
W I T N E S S E T H:
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WHEREAS, the Company desires to engage Xxxxxx X. Xxxxxxxxx, formerly
the Company's Chief Executive Officer, as a consultant to the Company upon the
terms and subject to the conditions set forth in this Consulting Agreement; and,
WHEREAS, Consultant desires to be hired as a consultant to the Company
to provide the requested services of Xxxxxx X. Xxxxxxxxx upon the terms and
subject to the conditions set forth in this Consulting Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants and conditions herein contained and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto intending to be legally bound hereby agree as follows:
Section 1. Engagement. The Company hereby engages Consultant, and
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Consultant hereby accepts engagement with the Company, as a consultant, all upon
the terms and subject to the conditions set forth in this Consulting Agreement.
Section 2. Consulting Services. Consultant is and shall be
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engaged as a consultant to the Board of Directors of the Company (the "Board")
when requested by the Chief Executive Officer of the Company, on matters
relating to the general business and affairs of the Company including matters
concerning marketing and operations ("Consulting Services"). DJH Holdings, LLC
shall ensure that all consulting under this Agreement is performed by Xxxxxx X.
Xxxxxxxxx personally. Consultant shall report directly to the Chief Executive
Officer (CEO) of the Company, and the CEO shall direct the scope of work to be
conducted by the Consultant. Consultant shall devote such business time, best
efforts, and attention to promote and advance the business of the Company and
its subsidiaries as reasonably requested, from time to time, by the Chief
Executive Officer; provided, however, that such time, efforts and attention
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shall, where and when possible, shall be conducted during regular business hours
and shall not unreasonably interfere with Consultant's other business and/or
personal activities. Consultant shall provide Consulting Services to the Company
a minimum average of Sixty (60) business hours during each month of the
Consulting Period or any extensions thereof.
Section 3. Exclusivity. Consultant agrees not to undertake
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consulting work for other businesses in competition with the Company during the
term of this Consulting Agreement or any extensions hereof.
Section 4. Term of Engagement. The term of engagement of
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Consultant by the Company pursuant to this Consulting Agreement shall be for the
period (the "Consulting Period") commencing on February 13, 2006 and ending on
August 13, 2006 or such earlier date that Consultant's engagement is terminated
in accordance with the provisions of this Consulting Agreement or such later
date that Consultant's engagement is extended pursuant to this Consulting
Agreement (the "Consulting Termination Date").
This Agreement may be renewed by mutual consent. Such renewal, unless
otherwise expressly stated, shall be for a term of six (6) months.
Section 5. Fee. During the Consulting Period, subject to all the terms
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and conditions of this Consulting Agreement and as compensation for all
Consulting Services under this Consulting Agreement, the Company shall pay
Consultant the amount of Nine Thousand Dollars ($9,000), which shall be payable
at such intervals (at least monthly) as salaries are paid generally to executive
officers of the Company. The fee shall be paid to DJH Holdings, LLC. These
fees are exclusive of any compensation earned by Xxxxxx Xxxxxxxxx as a Director
of the Company, if any.
Section 6. Expenses. The Company shall not be obligated to
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reimburse any expenses of Consultant in the performance of services unless
reimbursement of a particular expense is requested in advance and which is
expressly approved, in advance and in writing, by the Chief Executive Officer of
the Company. The presumption is that no expenses are expected to be paid by the
Company.
Section 7. Notices. For the purposes of this Consulting
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Agreement, notices and all other communications provided for in the Consulting
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 8. Proprietary Information and Inventions. Consultant
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understands and acknowledges that:
8.01 Trust. Consultant's engagement creates a relationship of
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confidence and trust between Consultant 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
Consultant by the Group or by any licensee, vendor or customer of any of the
Group or learned by Consultant during the Consulting Period and/or the
Employment Period.
8.02 Proprietary Information. The Group possesses and will
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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 Consultant 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
in the possession of Company. Notwithstanding anything contained in this
Consulting 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 Consultant, (iii) information which Consultant can demonstrate was in
Consultant's possession at the time of disclosure and was not acquired by
Consultant directly or indirectly from any of the Group on a confidential basis,
(iv) information which becomes available to Consultant on a non-confidential
basis from a source other than any of the Group and which source, to the best of
Consultant'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. Consultant assigns to the Company any rights Consultant may
have or acquire in such Proprietary Information. At all times, both during
Consultant's engagement by the Company and after its termination, Consultant
shall keep in strictest confidence and trust all Proprietary Information, and
Consultant 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 Consultant's duties as a consultant to the Company. All
confidential information of the Company shall be kept in confidence by
Consultant for a period of at least three (3) years after the Consulting
Termination Date.
Section 9. Surrender of Documents. Consultant shall, at the
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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 10. Prior Employment Agreements. Consultant represents
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and warrants that Consultant's performance of all the terms of this Consulting
Agreement and as a consultant to the Company does not, and will not, breach any
agreement to keep in confidence proprietary information acquired by Consultant
in confidence or in trust prior to Consultant's employment by the Company.
Consultant has not entered into, and shall not enter into, any agreement, either
written or oral, which is in conflict with this Consulting Agreement or which
would be violated by Consultant entering into, or carrying out his obligations
under, this Consulting Agreement. It is expressly agreed and acknowledged that
this Consulting Agreement shall control the relationship between the Consultant
and the Company. All prior or contemporaneous agreements between the Parties
are hereby merged hereinto and or of no present or future effect. The Parties
warrant and acknowledge that the terms of the all prior agreements between them
have been satisfied in full.
Section 11. Remedies. Consultant acknowledges and agrees that the
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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 Consultant of any of the provisions of this
Consulting 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. Consultant
acknowledges that the granting of a temporary injunction, a temporary
restraining order or other permanent injunction merely prohibiting Consultant
from engaging in any Business Activities would not be an adequate remedy upon
breach or threatened breach of this Consulting Agreement, and consequently
agrees upon any such breach or threatened breach to the granting of injunctive
relief prohibiting Consultant from engaging in any activities prohibited by this
Consulting 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 12. Successors. This Consulting Agreement shall be
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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 Consulting 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 Consulting 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 Consulting
Agreement or which is otherwise obligated under this Agreement by the first
sentence of this Section 12, by operation of law or otherwise.
Section 13. Termination. This Consulting Agreement may be
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terminated by Consultant at any time upon fifteen (15) days notice. Upon the
effective date of any such termination by Consultant, the Company will have no
further obligations to Consultant, including any obligation to pay amounts
contemplated under this Agreement for periods after the effective date of
termination of this Consulting Agreement. The Company may terminate this
Consulting Agreement at any time upon ninety (90) days advance written notice.
This Agreement shall terminate automatically upon the death of Xxxxxx X.
Xxxxxxxxx, which other than for payments due for the period prior to death,
shall relieve all further payment obligations hereunder for periods from and
after Xxxxxx X. Xxxxxxxxx'x date of death.
Section 14. Binding Effect. This Consulting Agreement shall inure
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to the benefit of and be enforceable by Consultant's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Consultant 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 Consulting Agreement.
Section 15. Modification and Waiver. No provision of this
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Consulting Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Consultant 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 Consulting 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 16. Headings. Headings used in this Agreement are for
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convenience only and shall not be used to interpret or construe its provisions.
Section 17. Waiver of Breach. The waiver of either the Company or
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Consultant of a breach of any provision of this Consulting Agreement shall not
operate or be construed as a waiver of any subsequent breach by either the
Company or Consultant.
Section 18. Amendments. No amendments or variations of the terms
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and conditions of this Consulting Agreement shall be valid unless the same is in
writing and signed by all of the parties hereto.
Section 19. Severability. The invalidity or unenforceability of
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any provision of this Consulting 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.
Section 20. Governing Law/Forum. This Consulting Agreement shall
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be construed and enforced pursuant to the laws of the State of Ohio, and Ohio
shall be the sole venue for dispute resolution relative hereto.
Section 21. Arbitration. Any controversy or claim arising out of
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or relating to this Consulting 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 Consultant 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 Consultant. 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 as well as reasonable attorney's fees incurred in
connection with the arbitration and any judicial proceedings related thereto.
Section 22. Counterparts. This Consulting Agreement may be
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executed in more than one (1) counterpart and each counterpart shall be
considered an original.
Section 23. Sections. Unless the context requires a different
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meaning, all references to "Sections" in this Agreement shall mean the Section
of this Agreement.
Section 24. Publicity. Press releases and other publicity
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materials relating to the transactions contemplated by this Consulting 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
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advises the Company that disclosure of this Consulting 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 Consultant.
Section 25. Independent Contractor. Consultant shall be deemed to
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be an independent contractor with respect to the Company and not an employee and
Consultant shall be responsible for all federal, state and local taxes as a
result of the receipt of the amounts paid to Consultant by the Company,
including, but not limited to, unemployment and withholding taxes.
IN WITNESS WHEREOF, this Consulting Agreement has been duly executed
by the Company and Consultant as of the date first above written.
N-VIRO INTERNATIONAL CORPORATION
By /s/ Xxxxxxx Xxxxxxx
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Its: Chief Executive Officer
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DJH HOLDINGS, LLC
/s/Xxxxxx X. Xxxxxxxxx
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By: Xxxxxx X. Xxxxxxxxx
Its: President
/s/Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
