Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made, entered into, and
effective as of May 23, 2008 (the "Effective Date"), by and between American
Soil Technologies, Inc., a Nevada corporation ("Company"), and Xxxx X. Xxxxx, an
individual ("Employee") (individually, a "Party"; collectively, the "Parties").
RECITALS
WHEREAS, Company desires to employ Employee, and Employee desires to be
employed as the President, Chief Executive Officer, and Chief Financial Officer
of Company; and
WHEREAS, Company desires to have an employment agreement with Employee as
its President, Chief Executive Officer, and Chief Financial Officer, subject to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the Parties hereto hereby agree as follows:
AGREEMENT
1. TERM OF EMPLOYMENT.
a. SPECIFIED PERIOD. Company hereby employs Employee and Employee accepts
employment with Company for a period of five years beginning on May 23, 2008,
and terminating on May 22, 2013.
b. RENEWAL. This Agreement is subject to automatic renewal for successive
one year terms, upon the same terms and conditions as set forth herein, unless
either this Agreement is terminated pursuant to Section 8 hereof or a Party
gives written notice to the other Party of its intent to terminate, at least 30
days prior to expiration of the then-current term.
c. EMPLOYMENT TERM DEFINED. "Employment term" refers to the entire period
of employment of Employee by Company, whether for the period provided above, or
whether terminated earlier as hereinafter provided or extended by mutual
agreement between Company and Employee.
2. DUTIES AND OBLIGATIONS OF EMPLOYEE. Employee shall serve as President, Chief
Executive Officer, and Chief Financial Officer. Employee shall report to the
Board of Directors or any other individual designated by the Board of Directors
of the Company. Employee shall faithfully and diligently perform all
professional duties and acts as may be requested and required of Employee by
Company or its Directors. Employee shall devote such time and attention to the
business of Company as shall be required to perform the required services and
duties. Employee at all times during the employment term shall strictly adhere
to and obey all policies, rules and regulations established from time to time
governing the conduct of employees of Company
3. EXCLUSIVITY, NON-DISCLOSURE.
a. DEVOTION TO COMPANY BUSINESS. Employee agrees to perform Employee's
services efficiently and to the best of Employee's ability. Employee agrees
throughout the term of this Agreement to devote his time, energy and skill to
the business of the Company and to the promotion of the best interests of the
Company.
b. TRADE SECRETS. Employee agrees that he shall not at any time, either
during or subsequent to his employment term, unless expressly consented to in
writing by Company, either directly or indirectly use or disclose to any person
or entity any confidential information of any kind, nature or description
concerning any matters affecting or relating to the business of Company,
including, but not limited to, information concerning the customers of Company,
Company's marketing methods, compensation paid to employees, independent
contractors or suppliers and other terms of their employment or contractual
relationships, financial and business records, know-how, or any other
information concerning the business of Company, its manner of operations, or
other data of any kind, nature or description. Employee agrees that the above
information and items are important, material and confidential trade secrets and
these affect the successful conduct of Company's business and its goodwill.
c. INVENTIONS AND PATENTS. Employee agrees to disclose and to assign
immediately to the Company, or to any persons designated by the Company, or at
the Company's option, any of the Company's successors or assigns, all inventions
or improvements which are or were made, conceived or reduced to practice by
Employee, whether acting independently or with others, during the course of
Employee's employment with the Company, and which (i) were made, conceived of or
first reduced to practice in the performance of any duties assigned to or
undertaken by the Employee as an employee of the Company; or (ii) were made,
conceived of or first reduced to practice with the use of the Company's time,
material, facilities or funds.
4. COMPENSATION.
a. SALARY. Subject to the termination of this Agreement as provided herein,
Company shall compensate Employee for his services hereunder at an annual salary
of $200,000 payable in accordance with the Company's practices, less normal
payroll deductions, and prorated for the actual employment term.
b. SALARY INCREASES; ADDITIONAL COMPENSATION. Employee shall receive such
annual increases in salary and such additional compensation as may be determined
by the Board of Directors of the Company in its sole discretion. Such salary
increases and/or additional compensation shall be paid to Employee on the
anniversary date of this Agreement during the Employment Term, and at such other
times as may be determined by the Board of Directors.
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5. EMPLOYEE INCENTIVES. Employee shall be entitled to receive incentives under
all incentive plans made available by Company or in the future to similarly
situated employees, subject to the terms, conditions and overall administration
of such plans, including but not limited to stock options, bonuses, profit
sharing, and any other incentive plans that the Company has made available to
similarly situated employees.
6. EMPLOYEE BENEFITS.
a. VACATION. Employee shall be entitled, during each employment year, to
________ weeks vacation, per annum, non-cumulative. Employee may be absent from
his employment for Vacation only at such times as may be convenient to Company
and Employee.
b. MEDICAL COVERAGE. Company agrees to include Employee in the coverage of
its medical and dental insurance.
c. PLAN PARTICIPATION. Employee shall be entitled to participate in or to
receive benefits under all of Company's employee benefit plans made available by
Company or in the future to similarly situated employees, subject to the terms,
conditions and overall administration of such plans, including but not limited
to 401(k) plans, XXX plans, E.R.I.S.A Plans, any other retirement or benefit
plans that the Company has made available to similarly situated employees.
7. BUSINESS EXPENSES. Employee will be required to incur travel, meals,
entertainment and other business expenses on behalf of the Company in the
performance of Employee's duties hereunder. Company will reimburse Employee for
all such reasonable business expenses incurred by Employee in connection with
Company's business upon presentation of receipts or other acceptable
documentation of the expenditures. In compensating Employee for expenses, the
ordinary and usual business guidelines and documentation requirements shall be
adhered to by Company and Employee.
8. TERMINATION OF EMPLOYMENT.
a. TERMINATION FOR CAUSE. Company may terminate this Agreement for cause at
any time. For purposes of this Agreement, the term "cause" shall include, but
not be limited to, in the Company's reasonable but sole discretion, the
following: a material breach of or failure to perform any covenant or obligation
in this Agreement, disloyalty, dishonesty, neglect of duties, unprofessional
conduct, acts of moral turpitude, disappearance, felonious conduct, or fraud.
Company may terminate this Agreement for cause by giving written notice of
termination specifying the cause to Employee without prejudice to any other
remedy to which Company may be entitled either at law, in equity, or under this
Agreement. The notice of termination required by this section shall specify the
ground for the termination and shall be supported by a statement of all relevant
facts.
b. TERMINATION UPON DEATH OR DISABILITY.
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i. DEATH. This Agreement shall be terminated immediately upon the
death of Employee.
ii. DISABILITY. Company reserves the right to terminate this Agreement
if, due to illness or injury, either physical or mental, Employee is unable to
perform Employee's customary duties as an employee of Company, unless reasonable
accommodation can be made to allow Employee to continue working, for more than
30 days in the aggregate out of a period of 12 consecutive months. The
disability shall be determined by a certification from a physician. Such a
termination shall be effected by giving ten days' written notice of termination
to Employee. Termination pursuant to this provision shall not prejudice
Employee's rights to receive disability insurance payments or the continued
compensation pursuant to this Agreement.
iii. WITHOUT CAUSE. Termination under this section for either death or
disability shall not be considered "for cause" for the purposes of this
Agreement.
c. EFFECT OF MERGER, TRANSFER OF ASSETS, OR DISSOLUTION. Without the prior
written consent of Employee, this Agreement shall not be terminated by any
voluntary or involuntary dissolution of Company resulting from a merger or
consolidation in which Company is not the consolidated or surviving corporation,
or a transfer of all or substantially all of the assets of Company. In the event
of any such merger or consolidation or transfer of assets, Employee's rights,
benefits, and obligations hereunder shall be assigned to the surviving or
resulting corporation or the transferee of Company's assets, unless Employee
agrees otherwise.
d. PAYMENT ON TERMINATION. If Company terminates this Agreement "without
cause," it shall pay "Severance Benefits" to the Employee. Severance Benefits
shall mean, for purposes of this Agreement, a cash payment equal to the
aggregate compensation payable to the Employee during the remaining term of this
Agreement, including all salary, commissions, bonuses and other compensation.
e. TERMINATION BY EMPLOYEE.
i. WITHOUT CAUSE. Employee may terminate this Agreement without cause
upon 30 days' prior written notice to Company.
ii. WITH CAUSE. Employee may terminate this Agreement immediately with
cause, in which event Employee shall receive the Payment on Termination in
accordance with Section 8(d) herein. For the purposes of this Agreement, "cause"
for termination by Employee shall be a breach of any material covenant or
obligation hereunder; or the termination of this Agreement without the prior
written consent of Employee due to the voluntary or involuntary dissolution of
the Company, any merger or consolidation in which the Company is not the
surviving or resulting corporation, or any transfer of all or subsequently all
of the assets of Company.
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9. GENERAL PROVISIONS.
a. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto their respective devisees, legatees, heirs, legal
representatives, successors, and permitted assigns. The preceding sentence shall
not affect any restriction on assignment set forth elsewhere in this Agreement.
b. NOTICES. Any notice, request, instruction, or other document required by
the terms of this Agreement, or deemed by any of the Parties hereto to be
desirable, to be given to any other party hereto shall be in writing and shall
be given by personal delivery, overnight delivery, mailed by registered or
certified mail, postage prepaid, with return receipt requested, or sent by
facsimile transmission to the addresses of the Parties as follows:
TO COMPANY: American Soil Technologies, Inc.
Attn: Xxxx X. Xxxxx, President
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
TO EMPLOYEE: Xxxx X. Xxxxx
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
WITH A COPY TO: Xxxxxx & Xxx
Attn: Xxxxx Xxxxxx, Esq.
00000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
The persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by personal delivery or overnight
delivery in accordance with the provisions of this Section, such notice shall be
conclusively deemed given at the time of such delivery provided a receipt is
obtained from the recipient. If notice is given by mail in accordance with the
provisions of this Section, such notice shall be conclusively deemed given upon
receipt and delivery or refusal. If notice is given by facsimile transmission in
accordance with the provisions of this Section, such notice shall be
conclusively deemed given at the time of delivery if during business hours and
if not during business hours, at the next business day after delivery, provided
a confirmation is obtained by the sender.
c. SUMS DUE DECEASED EMPLOYEE. If Employee dies prior to the expiration of
the employment term, any sums that may be due him from Company under this
Agreement as of the date of death shall be paid to Employee's executors,
administrators, heirs, personal representatives, successors, and assigns.
d. ASSIGNMENT. Subject to all other provisions of this Agreement, any
attempt to assign or transfer this Agreement or any of the rights conferred
hereby, by judicial process or otherwise, to any person, firm, Company, or
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corporation without the prior written consent of the other Party, shall be
invalid, and may, at the option of such other Party, result in an incurable
event of default resulting in termination of this Agreement and all rights
hereby conferred.
e. CHOICE OF LAW. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
California including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of laws.
f. JURISDICTION. The parties submit to the jurisdiction of the Courts of
the County of Orange, State of California or a Federal Court empaneled in the
State of California for the resolution of all legal disputes arising under the
terms of this Agreement.
g. INDEMNIFICATION. Company shall indemnify, defend and hold Employee
harmless, to the fullest extent permitted by law, for all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney's fees that
Employee shall incur or suffer that arise from, result from or relate to the
discharge of Employee's duties under this Agreement. Company shall maintain
adequate insurance for this purpose or shall advance Employee any expenses
incurred in defending any such proceeding or claim to the maximum extent
permitted by law.
h. ENTIRE AGREEMENT. Except as provided herein, this Agreement, including
exhibits, contains the entire agreement of the Parties, and supersedes all
existing negotiations, representations, or agreements and all other oral,
written, or other communications between them concerning the subject matter of
this Agreement. There are no representations, agreements, arrangements, or
understandings, oral or written, between and among the Parties hereto relating
to the subject matter of this Agreement that are not fully expressed herein.
i. SEVERABILITY. If any provision hereof is held to be illegal, invalid or
unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable. This Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, and the remaining provisions hereof shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance wherefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision there shall be added
automatically by the Company as a part hereof a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and legal,
valid and enforceable.
j. CAPTIONS. The captions in this Agreement are inserted only as a matter
of convenience and for reference and shall not be deemed to define, limit,
enlarge, or describe the scope of this Agreement or the relationship of the
Parties, and shall not affect this Agreement or the construction of any
provisions herein.
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k. MODIFICATION. No change, modification, addition, or amendment to this
Agreement shall be valid unless in writing and signed by all Parties hereto.
l. ATTORNEYS' FEES. In the event any Party hereto shall commence legal
proceedings against the other to enforce the terms hereof, or to declare rights
hereunder, as the result of a breach of any covenant or condition of this
Agreement, the prevailing Party in any such proceeding shall be entitled to
recover from the losing Party its costs of suit, including reasonable attorneys'
fees, as may be fixed by the court.
m. TAXES. Any income taxes required to be paid in connection with the
payments due hereunder, shall be borne by the Party required to make such
payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the Party required to withhold such tax shall
furnish to the Party receiving such payment all documentation necessary to prove
the proper amount to withhold of such taxes and to prove payment to the tax
authority of such required withholding.
n. NOT FOR THE BENEFIT OF CREDITORS OR THIRD PARTIES. The provisions of
this Agreement are intended only for the regulation of relations among the
Parties. This Agreement is not intended for the benefit of creditors of the
Parties or other third Parties and no rights are granted to creditors of the
Parties or other third Parties under this Agreement. Under no circumstances
shall any third party, who is a minor, be deemed to have accepted, adopted, or
acted in reliance upon this Agreement.
o. COUNTERPARTS. This Agreement may be executed in several counterparts and
it shall not be necessary for each Party to execute each of such counterparts,
but when all of the parties have executed and delivered one of such
counterparts, the counterparts, when taken together, shall be deemed to
constitute one and the same instrument, enforceable against each Party in
accordance with its terms.
p. FACSIMILE SIGNATURES. The parties hereto agree that this Agreement may
be executed by facsimile signatures and such signatures shall be deemed
originals. The parties further agree that within ten days following the
execution of this Agreement, they shall exchange original signature pages.
q. CONFLICT WAIVER. The Parties hereby agree and acknowledge that the law
firm of Xxxxxx & Xxx ("the Firm"), which represents the Company, has drafted
this Agreement. The Parties hereto further acknowledge that they have been
informed of the inherent conflict of interest associated with the drafting of
this Agreement by the Firm and waive any action they may have against the Firm
regarding such conflict. The Parties have been given the opportunity to consult
with counsel of their choice regarding their rights under this Agreement.
(SIGNATURE PAGE IMMEDIATELY FOLLOWS)
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
COMPANY:
AMERICAN SOIL TECHNOLOGIES, INC.,
a Nevada corporation
/s/ Xxxxx Xxxxx
------------------------------------------
By: Xxxxx Xxxxx
Its: Secretary
EMPLOYEE:
XXXX X. XXXXX
/s/ Xxxx X. Xxxxx
------------------------------------------
By: Xxxx X. Xxxxx
CONFIRMED AUTHORIZED BY THE BOARD OF DIRECTORS:
AMERICAN SOIL TECHNOLOGIES, INC.
a Nevada corporation
/s/ Xxxxx Xxxxx
--------------------------------------
By: Xxxxx Xxxxx
Its: Secretary
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