EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
as of October 1, 1997, by and between EarthShell Container Corporation, a
Delaware corporation with its principal office located in Santa Barbara,
California (the "Company"), and Xxxxx X. Xxxxxx, an individual ("Xx. Xxxxxx").
AGREEMENT
1. SERVICES PROVIDED TO THE COMPANY. Xx. Xxxxxx is hereby employed
by the Company as its Chief Executive Officer and, after October 15, 1997, as
its President, and Xx. Xxxxxx hereby agrees to such employment.
(a) CHIEF EXECUTIVE OFFICER. In his capacity as Chief Executive
Officer and President, Xx. Xxxxxx shall have such duties, responsibilities and
authority with respect to the business and affairs of the Company as are
consistent with the nature of such offices. During the term of this Agreement,
Employee shall devote substantially all of his regular working hours to the
business and welfare of the Company and its subsidiaries in the capacity of
Chief Executive Officer and President of the Company. Xx. Xxxxxx shall provide
the Company with the benefit of his best judgment and efforts in performing his
duties hereunder. Notwithstanding the foregoing, the parties hereto acknowledge
that Xx. Xxxxxx will serve as a Manager and as the President and Chief Operating
Officer of E. Khashoggi Industries, LLC, a Delaware limited liability company
("EKI"), and is expected to continue to serve in such capacity or in similar
capacities during the term of this Agreement. In addition, Xx. Xxxxxx serves as
a director, manager and/or officer of certain of EKI's affiliated entities (such
affiliated entities other than the Company are referred to herein collectively
as the "EKI Affiliates"). It is expected the Xx. Xxxxxx will continue to serve
in such capacity or similar capacities during the term of this Agreement. Xx.
Xxxxxx may also spend a reasonable amount of time with respect to charitable and
civic activities (including serving on the board of directors of charitable
organizations) and, subject to the limitations set forth in Section 6 of this
Agreement, may make personal investments or conduct private business affairs to
the extent that such activities do not materially interfere with the services
required under this Agreement.
(b) BOARD OF DIRECTORS. It is currently contemplated by the
parties that, during the term of this Agreement, Xx. Xxxxxx shall serve as a
director of the Company. Upon the expiration of this Agreement or its earlier
termination pursuant to Section 5, Xx. Xxxxxx shall continue to serve his then
remaining term as a director of the Company.
2. TERM. Unless earlier terminated pursuant to Section 5 hereof,
Xx. Xxxxxx shall be employed by the Company pursuant to this Agreement for a
term (the "Term") beginning on the date of this Agreement and continuing through
to and terminating at the close of business on the second anniversary of the
date hereof. At the Company's option, this Agreement may be renewed for an
additional one year term with such option to be exercised by written notice to
Xx. Xxxxxx by no later than July 31, 2000.
3. COMPENSATION TO XX. XXXXXX. During the term of this Agreement,
the Company shall pay to Xx. Xxxxxx compensation consisting of an annual base
salary equal to $500,000 per annum, payable on such basis as is the normal
payment pattern of the Company, not to be less frequently than monthly. Xx.
Xxxxxx may also be entitled to receive (i) an annual bonus, the amount of which
shall be determined by the Compensation Committee (the "Compensation Committee")
of the Board of Directors of the Company (the "Board") in its sole discretion,
and (ii) options or other rights to acquire the Company's common stock pursuant
to the Company's 1995 Stock Incentive Plan, under such terms and conditions as
are determined by the Stock Option Committee (the "Option Committee") of the
Board in its sole discretion. In making such determinations, the Compensation
Committee and Option Committee shall consider, among other things, the annual
financial results of the Company.
4. OTHER BENEFITS. The Company shall provide to Xx. Xxxxxx each of
the following benefits:
(a) BUSINESS EXPENSES. The Company shall pay or reimburse Xx.
Xxxxxx for any reasonable out-of-pocket expenses incurred by Xx. Xxxxxx in the
course of providing his services hereunder and which are consistent with the
Company's expense reimbursement guidelines or policies. Such reimbursement
shall be made by the Company within 30 days after receipt of a statement
therefor from Xx. Xxxxxx setting forth in reasonable detail the expenses for
which reimbursement is requested, accompanied by reasonable documentation
evidencing such expenses.
(b) INSURANCE COVERAGE AND BENEFITS. During the term of this
Agreement, the Company shall provide Xx. Xxxxxx, at the Company's expense,
coverage under the major medical, hospitalization, disability and other
insurance programs maintained by the Company for its officers generally, or if
none is made for its officers generally, its employees generally. In addition,
Xx. Xxxxxx shall receive during the term of this Agreement all other Company-
provided benefits, including vacation and sick pay benefits, that are, from time
to time, made available by the Company to its officers generally or, if not made
to its officers generally, its employees generally.
5. TERMINATION. Xx. Xxxxxx'x employment hereunder may be terminated
at any time by the Company in its sole discretion upon written notice to Xx.
Xxxxxx. In such event, Xx. Xxxxxx shall not be entitled to any severance pay or
any additional compensation and all payments and benefits due Xx. Xxxxxx
hereunder shall cease upon termination of Xx. Xxxxxx'x employment pursuant to
this Section 5.
6. NONCOMPETITION COVENANT.
(a) During the term of this Agreement, Xx. Xxxxxx shall not,
directly or indirectly, in any capacity (whether as an individual, promoter,
proprietor, investor, general partner, joint venturer, employee, agent,
consultant, director, officer, manager, stockholder or otherwise) work for, act
as a consultant or adviser to, own any interest in, or otherwise be connected in
any manner with the ownership, management, operation or control of (collectively
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"Associated With"), any person or entity that is involved in the production,
sale, use or commercialization of Food Service Disposables (as defined in the
Amended and Restated License Agreement dated as of February 28, 1995 by and
between the Company and EKI's predecessor, and any and all amendments thereto
entered into prior to the termination of this Agreement) or that is otherwise in
direct competition with the business of the Company or its subsidiaries. Xx.
Xxxxxx acknowledges that the Company's products are marketed internationally and
that its business plans include marketing throughout the entire world.
Accordingly the restrictions in this Section 6 shall extend to such businesses
in any part of the world. Notwithstanding the foregoing provisions, the Company
and Xx. Xxxxxx hereby acknowledge that Xx. Xxxxxx is a manager and officer, of
and has a beneficial ownership interest, in EKI and certain of the EKI
Affiliates. The parties hereto acknowledge that this Agreement is not intended
to prevent Xx. Xxxxxx from rendering services to, or receiving compensation
from, EKI and the EKI Affiliates, either during the term of this Agreement
(consistent with Xx. Xxxxxx'x obligations pursuant to Section 1 above) or
thereafter.
(b) Nothing in this Section 6 shall restrict Xx. Xxxxxx from
(i) continuing to own a beneficial interest in EKI or the EKI Affiliates, or
(ii) owning not more than 1% of the outstanding shares of any class of
securities in any entity.
(c) The covenants and agreements contained in this Section 6
shall be deemed to be a series of separate covenants and agreements, one for
each and every country, county, state, city and other jurisdiction in the world
with respect to which the Company's business has been or is hereafter carried
on. If any of the foregoing is determined by any court of competent
jurisdiction to be invalid or unenforceable by reason of such agreement
extending over too great a geographical area, or by reason of its being too
extensive in any other respect, such agreement shall be interpreted to extend
only over the maximum geographical area and to the maximum extent enforceable,
all as determined by such court in such action. Any determination that any
provision hereof is invalid or unenforceable, in whole or in part, shall have no
effect on the validity or enforceability of any remaining provision thereof.
7. OTHER ACTIVITIES. The parties acknowledge that the Company has
no interest in, or claim to, any compensation or profits received, or to be
received, by Xx. Xxxxxx as a result of his performance of services for, or
involvement with, EKI or the EKI Affiliates, nor shall it have any claim to any
of their properties or assets, including, without limitation, any patents, trade
secrets or other intellectual property rights developed or created by Xx.
Xxxxxx, either jointly or individually, on behalf of, or for the benefit of, EKI
and/or the EKI Affiliates during the term of this Agreement, except as otherwise
may be expressly set forth in any written agreement between EKI and/or the EKI
Affiliates, on the one hand, and the Company or its subsidiaries, on the other
hand.
8. CONFIDENTIAL AND PROPRIETARY INFORMATION. Xx. Xxxxxx has
previously executed a non-disclosure agreement with respect to EKI, the Company
and their respective affiliated entities. Nothing herein shall be construed to
alter or modify Xx. Xxxxxx'x obligations or duties under such non-disclosure
agreement.
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9. GENERAL PROVISIONS.
(a) NOTICES. Any notice to be given pursuant to this Agreement
shall be in writing and, in the absence of receipted hand delivery, shall be
deemed duly given when mailed, if the same shall be sent by certified or
registered mail, return receipt requested, or by a nationally recognized
overnight courier, and the mailing date shall be deemed the date from which all
time periods pertaining to a date of notice shall run. Notices shall be
addressed to the parties at the following addresses:
If to the Company, to: EarthShell Corporation
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
If to Xx. Xxxxxx, to: Xxxxx X. Xxxxxx
c/o EarthShell Corporation
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
(b) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the Company and any successors whether by
merger, consolidation, transfer of substantially all assets or similar
transaction, and it shall be binding upon and shall inure to the benefit of Xx.
Xxxxxx and his heirs and legal representatives. This Agreement is personal to
Xx. Xxxxxx and shall not be assignable by Xx. Xxxxxx.
(c) WAIVER OF BREACH. The waiver by the Company or Xx. Xxxxxx
of a breach of any provision of this Agreement by the other shall not operate or
be construed as a waiver of any subsequent breach by the other.
(d) ENTIRE AGREEMENT/AMENDMENT. This Agreement shall constitute
the entire agreement between the parties hereto with respect to the subject
matter hereof, and shall supersede all previous oral and written and all
contemporaneous oral negotiations, commitments, agreements and understandings
relating hereto. Any amendment to this Agreement shall be effective only if it
is in writing and signed by the parties to this Agreement. Any amendment to
this Agreement must be approved by the Conflicts Committee of the Company's
Board of Directors, and, if appropriate, by the Compensation Committee of the
Company's Board of Directors.
(e) APPLICABLE LAW. The validity of this Agreement and the
interpretation and performance of all of its terms shall be construed and
enforced in accordance with the laws of the State of California without
reference to choice or conflict of law principles.
(f) SEVERABILITY. Any provision of this Agreement that is
deemed invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction and subject to this paragraph, be ineffective to the extent of such
invalidity, illegality or unenforceability, without
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affecting in any way the remaining provisions hereof in such jurisdiction or
rendering that or any other provision of this Agreement invalid, illegal or
unenforceable in any other jurisdiction. If any covenant should be deemed
invalid, illegal or unenforceable because its scope is considered excessive,
such covenant shall be modified so that the scope of the covenant is reduced
only to the minimum extent necessary to render the modified covenant valid,
legal and enforceable.
(g) COUNTERPARTS. This Agreement may be executed in a number of
identical counterparts, each of which shall be deemed an original for all
purposes.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
EARTHSHELL CONTAINER CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
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Title: Chairman of the Board
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XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
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