EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this _____ day of October, 1997 by and
between Energy BioSystems Corporation, a Delaware corporation (the "Company"),
and Xxxxxxx X. Xxxxxxx ("Employee").
W I T N E S S E T H :
WHEREAS, the Company wishes to employ Employee and Employee wishes to be
employed by the Company on the terms and subject to the conditions set forth
below;
NOW, THEREFORE, in consideration of the foregoing recital and of the mutual
covenants herein set forth, the Company and Employee hereby agree as follows:
1. EMPLOYMENT. Effective as of October ___, 1997 (the "Effective Date"),
the Company hereby employs Employee and Employee accepts such
employment, effective as of the Effective Date, for the compensation
and on the terms and subject to the conditions herein set forth.
2. COMPENSATION. The Company shall pay Employee an initial monthly
salary equivalent to Employee's current monthly salary payable in
accordance with the Company's normal pay practices, which shall be
reviewed no less than annually and from time to time changed (but not
to be decreased to an amount below the initial monthly salary) at the
discretion of the Board of Directors of the Company. Employee shall
also be entitled to all rights and benefits for which he shall be
eligible under group insurance and other fringe benefits which may be
in force from time to time (including any profit-sharing, option or
other incentive compensation plan either Company-wide or specific to
the Employee) and provided to the Company's employees generally.
3. DUTIES. Prior to the termination hereof, Employee agrees to devote
his full time and attention to the service of the Company and, in
furtherance thereof, to use his best efforts and to perform such
duties as may be assigned to him from time to time by or under
authority of the Board of Directors of the Company. Employee agrees
that he will not undertake any other employment, consulting services
or business venture during the period of his employment hereunder,
unless the Company, by action of the Board, shall consent thereto in
writing. The foregoing shall not be construed as preventing Employee
from engaging in such personal and business investment activities as
are essentially passive in nature and do not conflict with or
adversely affect in any material respect the performance or discharge
of Employee's duties and responsibilities hereunder.
4. TERM AND TERMINATION.
4.1 The term of this Agreement shall commence on the Effective Date and
continue until July 18, 2000 unless earlier terminated as hereinafter
provided.
4.2 This Agreement shall terminate automatically on the death of Employee.
4.3 The Company shall have the right to terminate Employee's employment
for cause by giving notice in writing to Employee. As used herein,
the term "cause" shall mean (i) dishonesty; (ii) conviction of any
crime other than misdemeanors or minor traffic violations; (iii)
material breach of any provision of this Agreement; (iv) commission of
any action or omission to take any action in bad faith and to the
detriment of the Company; (v) willful refusal or failure of Employee
to obey the lawful directions of the Board of Directors of the
Company; or (vi) failure to adequately perform the duties and
responsibilities assigned to Employee pursuant to this Agreement,
which failure shall continue for a period of thirty (30) days after
receipt of written notice from the Board of Directors indicating with
specificity the acts or omissions upon which the Board intends to
terminate his employment.
4.4 The Company shall have the right to terminate Employee's employment in
the event of complete disability by giving notice in writing to
Employee. As used herein, the term "complete disability" shall mean
the inability of Employee, due to illness or injury, to perform his
duties hereunder for a period of 180 consecutive days.
4.5 The foregoing notwithstanding, the Company may terminate Employee's
employment for whatever reason it deems appropriate by one month's
prior notice in writing.
4.6 Employee shall have the right to terminate Employee's employment at
any time following the occurrence of a Change in Control, as defined
below, if Employee's duties or responsibilities are materially reduced
in connection with or following the Change in Control from those in
effect immediately prior to the Change in Control, except in
connection with the termination of Employee's employment pursuant to
Sections 4.2, 4.3, 4.4, 4.5 or 4.7. For purposes of this Agreement, a
"Change in Control" shall be deemed to have occurred if:
(i) any individual, entity or group (within the meaning of
Section 13(d) or 14(d)(2) of the Securities and Exchange Act of
1934) shall become (directly or indirectly) the "beneficial
owner" (within the meaning of Rule 13d-3 promulgated under such
Act) of more than 50% of the combined voting power of the then
outstanding securities of the Company entitled to vote generally
in the election of directors ("Voting Power"); or
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(ii) the Company's stockholders shall approve a merger or
consolidation, sale or disposition of all or substantially all of
the Company's assets or a plan of liquidation or dissolution of
the Company, other than (A) a merger or consolidation in which
the voting securities of the Company outstanding immediately
prior thereto will become (by operation of law), or are to be
converted into, voting securities of the surviving corporation or
its parent corporation that, immediately after such merger or
consolidation, (x) are owned by the same person or entity or
persons or entities that owned the voting securities of the
Company immediately prior thereto and (y) possess at least 75% of
the Voting Power held by the voting securities of the surviving
corporation or its parent corporation, or (B) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no person acquires more
than 50% of the Voting Power.
4.7 The foregoing notwithstanding, Employee shall have the right to
terminate Employee's employment for whatever reason Employee deems
appropriate by one month's prior notice in writing.
4.8 In the event of termination of Employee's employment pursuant to
Sections 4.2, 4.3, 4.4 or 4.7 hereof, the Company shall pay Employee
his salary at the then current rate up to the date of such
termination, and Employee shall be entitled to no further
compensation hereunder.
4.9 In the event of termination of Employee's employment pursuant to
Sections 4.5 or 4.6 hereof, the Company shall pay Employee severance
compensation for the lesser of a period of (i) six (6) months from the
date of such termination, (ii) the remaining term of this Agreement,
or (iii) a period ending on the date on which Employee becomes
employed by another entity, payable as and when Employee would
otherwise be paid his salary under Section 2 hereof.
5. NONDISCLOSURE; INVENTIONS; NON-COMPETITION.
5.1 For the purposes of this Agreement the terms set forth below shall
have the following meanings:
5.1.1 CONFIDENTIAL INFORMATION. That secret proprietary information of
the Company of whatever kind or nature disclosed to Employee or
known by Employee (whether or not invented, discovered or
developed by Employee). Such proprietary information shall
include information relating to the design, manufacture and
application of the Company's products, know-how and research and
development relating to the Company's products, sources of supply
and material, operating and other cost data, lists of present,
past or prospective customers, customer proposals, and price
lists and
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data relating to pricing of the Company's products or
services, any of which information is not generally known in the
industry, and shall specifically include, without limitation, all
information contained in manuals, memoranda, formulae, plans,
drawings and designs, specifications, supply sources, and records
of the Company.
5.1.2 CONCEPTS AND IDEAS. Those concepts and ideas known to Employee
relating to the Company's activities and products.
5.1.3 INVENTIONS. Those discoveries and developments, whether or not
patentable, relating to the Company's activities and products
(whether made by Employee acting alone or in conjunction with
others) made on or after the date on which Employee was first
employed by the Company in any capacity and prior to three years
after the termination of Employee's employment with the Company.
The term "Invention" shall also include any other discovery or
development made by Employee on or after the date on which
Employee was first employed by the Company in any capacity and
prior to the termination of this Agreement, except for any
invention or discovery for which no equipment, supplies,
facility, or trade secret information of the Company was used and
which was developed entirely on the Employee's own time and (i)
which does not relate (a) to the business of the Company, or (b)
to the Company's actual or demonstrably anticipated research or
development, or (ii) which does not result from any work
performed by the Employee for the Company. Such term shall not
be limited to the meaning of "invention" under the United States
patent laws. Listed below by descriptive title for purposes of
identification are all inventions made by Employee prior to the
date on which Employee was first employed by the Company in any
capacity which he considers to be his property and which are
hereby excluded from this Agreement:
NONE
5.2 All Inventions and all Concepts and Ideas shall be the property of and
are hereby assigned to the Company free of any reserved or other
rights of any kind on the part of Employee in respect thereof.
5.3 Employee will promptly make full disclosure of any such Inventions and
Concepts and Ideas to the Company. Further, Employee will, at the
Company's cost and expense, promptly execute formal applications for
patents and also do all other acts and things (including, among
others, the execution and delivery of instruments of further assurance
or confirmation) deemed by the Company to be necessary or desirable at
any time or times in order to effect the full assignment to the
Company of Employee's right and title to such Inventions and Concepts
and Ideas, without, during the term of this Agreement, further
compensation beyond Employee's agreed salary. Employee further
understands that the absence of a request by the Company
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for information, or for the making of an oath, or for the execution
of any document, shall in no way be construed to constitute a
waiver of the Company's rights under this Agreement.
5.4 Except as required by Employee's duties hereunder, Employee will not,
directly or indirectly, use, publish, disseminate or otherwise
disclose any Confidential Information, Concepts and Ideas or
Inventions relating to the past, present or planned business of the
Company without the prior written consent of the Company, unless any
such items are, prior to such disclosure, part of the written public
knowledge or become part of the written public knowledge through no
fault of Employee or are disclosed to Employee by a third party having
the right to do so.
5.5 All documents, procedural manuals, guides, specifications, plans,
drawings, designs and similar materials, lists of present, past or
prospective customers, customer proposals, invitations to submit
proposals, price lists and data relating to pricing of the Company's
products and services, records, notebooks and similar repositories of
or containing Confidential Information and Inventions, including all
copies thereof, that are or come into Employee's possession or control
by reason of Employee's employment, whether prepared by Employee or
others, are the property of the Company, will not be used by Employee
in any way adverse to the Company, will not be removed from the
Company's premises except as Employee's normal duties require and, at
the termination of Employee's employment with the Company, will be
left with or forthwith returned by Employee to the Company.
5.6 During the term of Employee's employment with the Company and for a
period of five (5) years thereafter, Employee shall not, individually
or on behalf of or in conjunction with any other person or entity,
directly or indirectly, own, manage, operate, control or be employed
by, solicit the Company's past, present or prospective employees or
customers on behalf of, or, otherwise participate in any manner in any
corporation, partnership, proprietorship or other business entity
which is engaged in the development or sale of technology for the
microbial desulfurization of hydrocarbons or in any activity or
development of any product directly competitive with any of the
activities engaged in or products developed by the Company at the time
of Employee's termination; provided, however, that Employee may own
not more than 1% of the outstanding capital stock of a company in a
competitive business whose stock is publicly traded.
6. EXPENSES. Employee shall be entitled to reimbursement for reasonable
expenses incurred in the performance of services hereunder, provided
that the same are accounted for in accordance with the Company's
general requirements.
7. SURVIVAL; REMEDIES. Employee's duties under sections 5.2, 5.3, 5.4,
5.5, and 5.6 of this Agreement shall survive termination of this
Agreement and Employee's
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employment with the Company. Employee acknowledges that a remedy
at law for any breach or threatened breach by Employee of the
provisions of this Agreement may be inadequate and Employee
therefore agrees that the Company shall be entitled to injunctive
relief in case of any such breach or threatened breach.
8. ASSIGNMENT. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of each of the
parties hereto and shall also bind and inure to the benefit of any
successor or successors of the Company by reorganization, merger or
consolidation and any assignee of all or substantially all of its
business and properties, but, except as to any such successor or
assignee of the Company, neither this Agreement nor any rights or
benefits hereunder may be assigned by the Company or by Employee.
9. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed for all purposes by the laws and public policy of the
State of Texas applicable to contracts executed and wholly performed
within such state.
10. SEPARABILITY. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
If, moreover, any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.
11. WAIVER. If either party should waive any breach of any provision of
this Agreement, he or it shall not thereby be deemed to have waived
any preceding or succeeding breach of the same or any other provision
of this Agreement. No party shall be deemed to waive any rights
hereunder unless such waiver be in writing and signed by such party.
12. ENTIRE AGREEMENT. The foregoing is the entire Agreement of the
parties with respect to the subject matter hereof and may not be
amended, supplemented, cancelled or discharged except by written
instrument executed by both parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day,
month and year first above stated.
___________________________________
Xxxxxxx X. Xxxxxxx
ENERGY BIOSYSTEMS CORPORATION
By:___________________________________
Xxxxx Xxxxx
Chairman of the Board
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