EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of the 25th day of
March, 2008 by and between Blue Earth Solutions,
Inc., a Delaware a corporation (hereinafter called the “Company”) and
Xxxxxx Xxxx PHD (hereinafter called the “Employee”), to assume the position
of Senior Director of Research and
Development.
RECITALS
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1.
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The
Company desires to obtain the services of the Employee in the employment
of the Company and the Employee desires to make his services available to
the company on the terms and conditions hereinafter set
forth.
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AGREEMENT
NOW,
THISEFORE, in consideration of the promises and mutual covenants set forth
herein, the parties agree as follows:
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1.
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Employment
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1.1.
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General. The
Company hereby employs the Employee, and the Employee hereby accepts such
employment, on the terms and conditions contained in this
Agreement.
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1.2.
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Duties
of Employee . During the term of Employment, the
Employee shall diligently perform all services as may be reasonably
assigned to his and shall exercise such power and authority as may from
time to time be delegated to his. The Employee shall devote his
full time attention to the business and affairs of the Company, render
such services to the best of his ability, and use his best efforts to
promote the interests of the Company. The Employee understands
that any patents or patents pending or patents in process created by the
employee during the term of employment are the property of the
Company.
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1.3.
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Title. The
title of the Employee shall be “Senior Director of Research and
Development”. The employee shall be a member of the Advisory
Board of Directors of the
Corporation.
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2.
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Term. The
term of employment under this Agreement shall be for three (3) years
commencing the 25th
day of March, 2008 and ending the 24th
day of March, 2011.
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3.
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Compensation: The
Employee shall receive compensation as budgeted by the Company during the
term of the Agreement according to attached Addendum
A.
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4.
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Others
Benefits. The Employee shall be
entitled to all medical and hospitalization, group health insurance,
disability insurance, pension, and any and all others plans as are
presently and hereinafter offered by the Company to its officers or
employees. Employee shall be entitled to two weeks paid
vacation in the first full year of employment and four weeks paid vacation
in years 2 and 3.
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5.
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Termination.
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5.1.
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Termination
for cause. Notwithstanding anything contained
to the contrary in this Agreement, this Agreement may be terminated by the
Company immediately for cause. As used in the Agreement,
“cause” shall only mean (I) an action of the Employee which constitutes a
material breach of this Agreement which is not cured within thirty (30)
days after receipt by Employee of notice of same, (II) fraud, (III)
embezzlement, or (IV) any criminal act which is a
felony.
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5.2.
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Disability. Notwithstanding
anything contained in this Agreement to the Contrary, the Company by
written notice to the Employee shall at all times have the right to
terminate this Agreement, and the Employee’s employment hereunder, if the
Employee shall, as a result of mental or physical incapacity, illness or
disability, fail to perform his duties and responsibilities provided for
herein for a period of more than ninety (90) days during any twelve (12)
month period.
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5.3.
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Termination
without cause. Notwithstanding anything contained to the
contrary in this Agreement, this Agreement may be terminated by the
Company immediately without cause provided that the company pays the
employee the balance of this contract in full on the last date of
employment, not to exceed six months
pay
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5.4.
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Termination
by Employee. Employee may at any time give the Company two (2)
weeks prior written notice of his termination of employment hereunder,
such termination to be effective at the end of such two (2) week notice
period.
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6.
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Agreement
Not to Compete.
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6.1.
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As
used in this Agreement, “Competing Business” shall mean any business or
enterprise which is engaged in the business providing polystyrene
recycling. (the “Company’s
Business”).
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6.2.
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The
Employee agrees that during his employment by the Company and for five (5)
years following the termination of such employment, she will not, without
the prior written consent of the Company, either directly
or indirectly, on his own behalf or in the service or on behalf of others
as a shareholder, officer, trustee, consultant, or executive or managerial
employee, engages in or be employed by any Competing
Business.
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7.
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Agreement
Not to Solicit Clients. The Employee agrees that during his
employment by the Company and for five (5) years following the
termination, for any reason, of such employment, he will not, without the
prior written consent of the Company, either directly or indirectly, on
his own behalf or in the service or on behalf of others contact any person
or entity who is or had been either a client or business associate of the
Company, its affiliates or
subsidiaries.
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8.
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Agreement
Not to Solicit or Hire Employees. Employee agrees that during his
employment by the Company and for five (5) years following the
termination, for any reason, of such employment, she will not, either
directly or indirectly, on his own behalf or in the service or on behalf
of others solicit, divert, or hire, or attempt to solicit, divert or hire,
any person or entity employed by the Company, its affiliates or
subsidiaries and whether or not such employment is pursuant to a written
agreement and whether or not such employment is for a determined period or
is at will.
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9.
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Ownership
and Non-Disclosure and Non-Use of Confidential
Information.
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9.1.
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Definition. As
used in the Agreement, “Confidential Information” shall mean all client,
customer or business associate lists and sales and marketing
information, client, customer or business techniques, training and
operation material and memoranda, and trade secrets concerning or relating
to the business, accounts, clients, customers, business associates,
employees and affairs of the Corporation, its affiliates and subsidiaries
obtained by or furnished, disclosed or disseminated to the Employee or
obtained, assembled or complied by the Employee or under his supervision
during the course of his employment by the Corporation, and all physical
embodiments of the foregoing, all of which are hereby agreed to be the
property of and confidential of the Corporation but Confidential
information shall not include any of the forgoing to the extent the same
is or becomes publicly known through no fault or breach of this Agreement
by Employee.
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9.2.
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Employee
acknowledges and agrees that all Confidential information, and all
physical embodiment thereof, is confidential to and shall be and remain
the sole and exclusive property of the Corporation. Upon
request by the Corporation , and in any event upon termination of his
employment with the Corporation for any reason shall deliver to the
Company all property belonging to the Company then in his custody, control
or possession.
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9.3.
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Employee
agrees that she will not, either during the term of his employment by the
Company or at any time thereafter, without the prior written consent of
the Company, disclose or make available any confidential information to
any person or entity, nor shall she make or cause to be made, or permit or
allow, either on his own behalf or on behalf or others, any use of such
Confidential Information others than in the proper performance of his
duties hereunder.
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2
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10.
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Reasonableness
of Restrictions. In the event that any provision
relating to time period or geographic area of restriction shall be
declared by a Court of competent jurisdiction to exceed the maximum time
period or area of restriction that the Court deems reasonable and
enforceable, the time period or area or restriction which the Court finds
to be reasonable and enforceable shall be deemed to become, and thereafter
shall be, the maximum time period or geographic area of
restriction.
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11.
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Enforceability. Any
provision of Sections 6, 7, 8, and 9 which are prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, but shall be enforced to the maximum extent
permitted by law, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any others jurisdiction.
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12.
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Injunction. It
is recognized and hereby acknowledged by the parties hereto that a breach
by the Employee of any of the covenants contained in Sections 6, 7, 8, and
9 of this Agreement will cause irreparable harm and damage to the Company,
the monetary amount of which may be virtually impossible to
ascertain. As a result, the Employee recognized and hereby
acknowledges that the Company shall be entitled to an injunction from any
Court of competent jurisdiction enjoining and restraining any violation of
any or all of the covenants contained in Section 6, 7, 8, and 9 of this
Agreement by the Employee or any of his affiliates, associates, partners
or agents, either directly or indirectly, and that such right to
injunction shall be cumulative and in addition to
whatever others remedies the Company may
possess.
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13.
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Assignment. The
Employee shall not delegate his employment obligations pursuant to this
Agreement to any others person.
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14.
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Governing
Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Florida.
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15.
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Entire
Agreement. This Agreement constitutes the entire
Agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior written agreement, understanding, and
arrangement, both oral and written, between the parties hereto with
respect to such subject matter. This Agreement may not be
modified in any way unless by a written instrument signed by both the
Company and the Employee.
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16.
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Notices. Any
notice required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been given when delivered by hand or
when deposited in the United States Mail, by registered or certified mail,
return receipt requested, postage prepaid, addressed as
follows:
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If to the
Company:
0000 XX
0xx
Xxx #X0
Xxxxxx
Xxxxx, XX 00000
If to the
Employee:
Xxxxxx
Xxxx PHD
0000
Xxxxxxxxxx Xx.
Xxxx
Xxxxx, XX 00000
Or to
such others addresses as either party hereto may from time to time give notice
of to the others in the aforesaid manner.
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17.
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Benefits
Binding Effect. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective heirs,
personal representatives, legal representative, successors and, where
applicable, assigns.
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18.
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Severability. The
invalidity of any one or more of the words, phrases, sentences, clauses,
or sections contained in this Agreement shall affect the enforceability of
the remaining portions of this Agreement or any part thereof, all of which
are inserted conditionally on their being valid in law and in the event
that any one or more of the words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid, this Agreement
shall be construed as if such invalid word or words, phrase or phrases,
sentence or sentences, clause or clauses or section or sections had not
been inserted. If such invalidity is caused by length of time
or size of area, or both, the otherwise invalid provision will be
considered to be reduced to a period or area which would cure such
invalidity.
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19.
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Waivers. The
waiver by any party hereto of any breach or violation of any provision of
this Agreement shall not operate or be construed as a waiver of any breach
or violation of any others provision or any subsequent breach or violation
by any party.
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20.
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Damages. Nothing
contained herein shall be construed to prevent the Company or the Employee
from seeking and recovering from the others damages sustained by either or
both of them as a result of its or his breach or violation of any term or
provision of this Agreement. In the event that either party
hereto brings suit for the collection of any damages resulting from, or
the injunction of any action constituting a breach of any of the terms or
provisions of this Agreement, then the party found to be at fault shall
pay all reasonable court costs and attorney’s fees of the
others.
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21.
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Section
headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this
Agreement.
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22.
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No
Third party Beneficiary. Nothing expressed or
implied in this Agreement is intended, or shall be construed to confer
upon or give any person others than the parties hereto and their
respective heirs, personal representative, legal representatives,
successors, and assigns any rights or remedies under or by reason of this
Agreement.
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IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the date first written
above.
| ____________________________. | EMPLOYEE: |
| By:______________________, its President | Xxxxxx Xxxx PHD |
4
Addendum
A
Compensation
Any new
patent or products that are made while employed by the Company the employee
shall also continue his royalty of ¼ of 1% of gross sales and will receive a one
time bonus (to be on a product by new product basis. Employee is required to
sign patent assignments to Blue Earth Solutions, Inc. and a power of attorney
granting the company rights to renewal of all patents created by the
employee.
| Year 1 | $ 80,000.00 |
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Year
2
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$
120,000.00 increase based on revenues from equipment sales and revenues of
patented products of $10,000,000.year
one
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Year
3
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$
150,000.00 increased based on revenues from equipment sales and revenues
of patented products of $40,000,000.year
two
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