EMPLOYMENT AGREEMENT
This Employment Agreement is effective as of June 30, 1998, by and
between Sustainable Development International, Inc., a Nevada corporation
of 00000 - 000xx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx, Xxxxxx ("Employer"),
and Xxxxxx Xxxx, ("Executive").
Recitals
WHEREAS, Employer is involved in technologies in the environmental
energy from waste and alternative power system industries.
WHEREAS, Employer desires assurance of the association and services of
Executive in order to retain his experience, skills, abilities, background,
and knowledge, and is therefore willing to engage his services on the terms
and conditions set forth below.
WHEREAS, Executive desires to commence working with Employer and is
willing to do so on those terms and conditions.
NOW THEREFORE, in consideration of the above recitals and the mutual
promises and conditions in this Agreement, and other good and valuable
considerations, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. EMPLOYMENT. Employer shall employ Executive as its President and
Chief Executive Officer.
2. EXECUTIVE'S DUTIES.
2.1. Duties at Employer: Executive shall represent the Employer
as the Chief Executive Officer of the Company. Executive shall possess the
power and authority to hire and fire all employees of Employer, unless
otherwise directed by Employer to the contrary. Executive shall manage and
conduct the business of Employer subject to expenditure policies set by
Employer through Employer's directors. Executive's duties shall include,
but not be limited to the following:
2.1.1 Directing the use and control of finances within the
limits approved by the Board;
2.1.2 Appointing and dismissing all employees of Employer;
2.1.3 Implementing long-term strategies and policies
established by the Board by defining and implementing short, medium, and
long-term objectives;
2.1.4 Communicating the intentions and results of
management to Employer's Directors.
2.1.5 Borrowing or obtaining credit in any amount or
executing any guaranty, upon Board Approval;
2.1.6 Expending funds for capital equipment in excess of
budgeted expenditures for any calendar month;
2.1.7 Selling or transferring capital assets not exceeding
$5,000 in market value in any single transaction or exceeding $25,000 in
market value in any one fiscal year, without Board Approval;
2.1.8 Approving a budget and any amendments thereto;
2.1.9 Determining and approving long-term policies and
strategies.
3. DEVOTION OF TIME. During the period of his employment hereunder,
and except for illness, reasonable vacation periods and reasonable leaves
of absence. Executive shall devote all of his business time, interest
attention, and effort to the faithful performance of his duties hereunder.
However, Executive may serve, on the boards of directors of, and hold any
other offices or positions in companies or organizations which, in the
judgment of Employer's Board of Directors (the "Board" as expressed in a
written Board Resolution), will not present any conflict of interest with
Employer or adversely affect the performance of Executive's duties pursuant
to this Agreement.
4. NON COMPETITION DURING TERM OF EMPLOYMENT. During the employment
term, Executive shall not, directly or indirectly, whether as a partner,
employee, creditor, shareholder, or otherwise, promote, participate, or
engage in any activity or other business directly competitive with
Employer's business, except with express permission of the Board. In
addition, Executive, while employed, shall not take any action without
Employer's prior written consent to establish, form, or become employed by
a competing business on termination of employment by Employer. Executive's
failure to comply with the provisions of the preceding sentence shall give
Employer the right (in addition to all other remedies Employer may have) to
terminate any benefits or compensation to which Executive may be otherwise
entitled following termination of this Agreement.
5. VARIATION OF DUTIES. During the term hereof, Executive shall not
vary the terms of his employment with Employer, without the specific
written authorization from Employer.
6. TERM OF AGREEMENT. Subject to earlier termination as provided in
this Agreement, Executive shall be employed for a term beginning June 30,
1998, and ending December 31, 2000.
7. LOCATION OF EMPLOYMENT. Unless the parties agree otherwise in
writing, during the employment term Executive shall perform the services he
is required to perform under this Agreement at Employer's offices to be
located in Edmonton, Alberta, Canada; provided, however, that Employer may
from time to time require Executive to travel temporarily to other
locations on Employer's business.
8. COMPENSATION. Employer shall pay compensation to Executive in the
following amounts and on the following terms:
8.1 Initial Payment. As consideration and inducement for
Executive to become employed by Employer, Employer shall pay Executive
$18,000 through October 31, 1998.
8.2 Salary. For all services rendered by Executive in any
capacity during the term of this Agreement, Employer shall pay Executive
annual compensation commencing after the Initial Payment on February 1,
1999 at $3,000 per month, in equal, bi-monthly installments payable on the
1st and 15th day of each month, or in such other manner as is the general
practice of Employer:
9. BENEFITS. During the employment term, Executive shall be entitled to
receive all other benefits of employment generally available to Employer's
other executive and managerial employees when and as he becomes eligible
for them, including group health and life insurance benefits and an annual
vacation.
9.1 Vacation. Executive shall be entitled to a paid annual vacation of
three (3) weeks during the first year of employment, and four (4) weeks
during any subsequent years; provided however, that vacation time may not
be accumulated and must be taken by the end of the year in which it has
accrued.
9.2 Sick Leave. Executive shall be entitled, without any adjustment in
his compensation, to thirty (30) days sick leave in each fiscal year of
employment hereunder if he is unable to perform his duties by reason of
illness or accident. Sick leave may not be carried over from one fiscal
year to the next.
9.3 Medical and Disability Coverage. Executive shall have the right to
all medical coverage and long term disability coverage on the same terms
and conditions as provided to other employees of Employer holding
management positions. It is agreed and understood that Employer shall
obtain reasonable medical, dental, disability, life, and liability
insurance for the benefit of Executive and other members of management as
soon hereafter as is practical, and it shall use its best efforts to
maintain such policies at all time during the employment term. In the event
that any such policy is not maintained by Employer, Employer shall pay
Executive an additional $500.00 per month to enable Executive to secure one
or more of such policies on his own.
9.4 Plans. Executive shall be entitled to participate in any and all
plans, arrangements, or distributions by Employer pertaining to or in
connection with any pension, bonus, profit sharing, stock options, and/or
similar benefits for its employees and/or executives, as determined by the
Board of Directors of committees thereof pursuant to the governing
instruments which establish and/or determine eligibility and other rights
of the participants and beneficiaries under such plans or other benefit
programs.
9.5 Automobiles. If, during the employment term, Employer shall
furnish to other employees and managerial personnel of Employer and
automobile owned by Employer, or lease by Employer, then Employer shall
also provide an automobile to Executive. The terms and conditions of
Executive's use of such automobile and the extent to which Employer shall
defray the costs of its operation shall be the same as those pertaining to
automobiles furnished other executive and managerial personnel of Employer.
10. EXPENSE REIMBURSEMENT. During the employment term, Employer shall
reimburse Executive for reasonable out-of-pocket expenses incurred in
connection with Employer's business, including travel expenses, food, and
lodging when away from home, subject to such policies as Employer may from
time to time reasonably establish for its employees.
11. INTELLECTUAL PROPERTY. All processes, inventions, patents, copyrights,
trademarks, and other intangible rights that may be conceived or developed
by Executive, either alone or with others, during the term of Executive's
employment, whether or not conceived or developed during Executive's
working hours, and with respect to which the equipment, supplies,
facilities, or trade secret information of Employer was used, or that
relate at the time of conception or reduction to practice of the invention
to the business of the Employer or to Employer's actual or demonstrably
anticipated research and development, or that result from any work
performed by Executive for Employer, shall be the sole property of
Employer. Executive shall disclose to Employer all inventions conceived
during the term of employment, whether or not the property of Employer
under the terms of the preceding sentence, provided that such disclosure
shall be received by Employer in confidence. Executive shall execute all
documents, including patent applications and assignments, required by
Employer to establish Employer's rights under this Section.
12. INDEMNIFICATION OF EXECUTIVE. Employer shall, to the maximum extent
permitted by law, indemnify and hold Executive harmless against expenses,
including reasonable attorney's fees judgements, fines, settlement, and
other amounts actually and reasonably incurred in connection with any
proceeding arising by reason of Executive's employment by Employer.
Employer shall advance to Executive any expense incurred in defending such
proceeding to the maximum extent permitted by law.
13. LIABILITY INSURANCE. Employer shall purchase and maintain indemnity
insurance, including Directors and Officers errors and omissions insurance,
if available, on behalf of Executive in an amount of reasonably necessary
to protect Executive against any liability asserted against or incurred by
Executive arising out of his employment by Employer.
14. TERMINATION BY EMPLOYER. Employer may terminate this Agreement at any
time, if termination is "For Cause", as hereinafter defined. "For Cause"
shall mean Employer's termination of Executive due to an adjudication of
Executive's fraud, theft, dishonesty to Employer regarding Executive's
duties or material breach of this Agreement, if Executive fails to cure
such breach within ten (10) days after written notice is given by the Board
of Directors to Executive and Executive fails with ten (10) days of such
notification to commence such cure and thereafter diligently prosecute such
cure to completion.
15. TERMINATION BY EXECUTIVE. Executive may terminate this Agreement by
giving Employer thirty (30) days prior written notice of resignation.
16. EXECUTIVE DISABILITY INSURANCE. Employer has advised Executive that it
currently maintains or is seeking disability insurance for its employees,
including Executive. During the term of this Agreement, Employer shall
maintain disability insurance covering Executive on terms and conditions no
less favorable than the terms and conditions in effect at the date of this
Agreement or contained in the initial policy acquired by Employer for its
management and other executives.
17. DISABILITY PAYMENTS. If and to the extent that Executive receives
payments in respect of such disability insurance during the period in which
Employer is obligated to make payments under this Agreement, Employer shall
be relieved of the obligation to make such payments to Executive to the
extent of the amounts so received by Executive, but except as so qualified,
Employer's obligations to make such payments shall continue in full.
18. DEATH OF EXECUTIVE. If Executive dies during the initial term or during
any renewal term of this Agreement, this Agreement shall be terminated on
the last day of the calendar month of his death. Employer shall then pay to
Executive's estate any salary accrued but unpaid as of the last day of the
calendar month in which Executive dies. Employer shall have no further
financial obligations to Executive or his estate hereunder.
19. AGREEMENT ON BUSINESS COMBINATION OR DISSOLUTION. This Agreement shall
not be terminated by Employer's voluntary or involuntary dissolution or by
any merger in which Employer is not the surviving or resulting corporation,
or on any transfer of all or substantially all of Employer's assets. In the
event any such merger or transfer of assets, the provisions of this
Agreement shall be binding on and inure to the benefit of the surviving
business entity or the business entity to which such assets shall be
transferred.
20. TRADE SECRETS AND CONFIDENTIAL INFORMATION:
20.1 Nondisclosure. Without the prior written consent of Employer,
Executive shall not, at any time, either during or after the term of this
Agreement, directly or indirectly, divulge or disclose to any person, firm,
association, or corporation, or use for Executive's own benefit, gain, or
otherwise, any customer lists, plans, products, data, results of tests and
data, or any other trade secrets or confidential materials or like
information (collectively referred to as the "Confidential Information") of
Employer and/or its Affiliates, as hereinafter defined, it being the intent
of Employer, with which intent Executive hereby agrees, to restrict
Executive from disseminating or using any like information that is
unpublished or not readily available to the general public.
20.1.1 Definition of Affiliate. For purposes of this Agreement, the
term "Affiliate" shall mean any entity, individual, firm, or corporation,
directly or indirectly, through one or more intermediaries, controlling,
controlled by, or under common control with Employer.
20.2 Return of Property. Upon the termination of this Agreement,
Executive shall deliver to Employer all lists, books, records, data, and
other information (including all copies thereof in whatever form or media)
of every kind relating to or connected with Employer or its Affiliates and
their activities, business and customers.
20.3 Notice of Compelled Disclosure. If, at any time, Executive
becomes legally compelled (by deposition, interrogatory, request for
documents, subpoena, civil investigative demand, or similar process or
otherwise) to disclose any of the Confidential Information, Executive shall
provide Employer with prompt, prior written notice of such requirement so
that Employer may seek a protective order or other appropriate remedy
and/or waive compliance with the terms of this Agreement. In the event that
such protective order or other remedy is not obtained, that Employer waives
compliance with the provisions hereof, Executive agrees to furnish only
that portion of the Confidential Information which Executive is advised by
written opinion of counsel is legally required and exercise Executive's
best efforts to obtain assurance that confidential treatment will be
accorded such Confidential Information. In any event, Executive shall not
oppose action by Employer to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded the
Confidential Information.
20.4 Assurance of Compliance. Executive agrees to represent to
Employer, in writing, at any time that Employer so request, that Executive
has complied with the provisions of this section, or any other section of
this Agreement.
21. NON-COMPETITION. For a period of three (3) months after the
termination of this Agreement, Executive expressly covenants and agrees
that Executive will not and will not attempt to, without the prior written
consent of the Board of Directors, directly or indirectly, (except as to
those entities set forth in Paragraph 4, above):
21.1 Own, manage, operate, finance, join, control, or participate in
the ownership, management, operation, financing, or control of, or be
associated as an officer, director, employee, agent, partner, principal,
representative, consultant, or otherwise with, or use or permit his name to
be used in connection with, any line of business or enterprise that
competes with Employer or its Affiliates (as defined herein) in any
business of Employer or its Affiliates, existing or proposed, wherever
located, provided that Executive shall not be prohibited from owning,
directly or indirectly, less than one percent (1%) of the outstanding
shares of any Corporation, the shares of which are traded on a National
Securities Exchange or in the over-the-counter markets;
21.2 Interfere with or disrupt or attempt to interfere with or disrupt
or take any action that could be reasonably expected to interfere with or
disrupt any past or present or prospective relationship, contractual or
otherwise, between Employer and/or any of its Affiliates, and any customer,
insurance company, supplier, sales representative, or agent or employee of
Employer or any such affiliate of Employer.
21.3 Directly or indirectly solicit for employment or attempt to
employ or assist any other entity in employing or soliciting or attempting
to employ or solicit for employment, either on a full-time, part-time, or
consulting basis, any employee, agent, representative, or executive
(whether salaried or otherwise, union or non-union) who within three (3)
years of the time that Executive ceased to perform services hereunder has
been employed by Employer or its Affiliates.
22. VIOLATION OF COVENANTS:
22.1 Injunctive Relief. Executive acknowledges and agrees that the
services to be rendered by Executive hereunder are of a special unique, and
personal character that gives them peculiar value; that the provisions of
this section are, in view of the nature of the business of Employer,
reasonable and necessary to protect the legitimate business interests of
Employer; that violation of any of the covenants or Agreements hereof would
cause irreparable injury to Employer, that the remedy at law for any
violation or threatened violation thereof would be inadequate; and that,
therefore, Employer shall be entitled to temporary and permanent injunctive
or other equitable relief as it may deem appropriate without the necessity
of proving actual damages and to an equitable accounting of all earnings,
profits, and other benefits arising, from any such violation, or attempted
violation, which rights shall be cumulative and in addition to all other
rights or remedies available to Employer.
22.2 Executive and Employer recognize that the laws and public
policies of the various states of the United States may differ as to the
validity and enforceability of certain of the provisions contained in this
section. It is the intention of Executive and Employer that the provisions
of this section shall be enforced to the fullest extent permissible under
the laws and public policies of each jurisdiction in which such enforcement
is sought, but that the invalidation (or modification to conform with such
laws or public policies) of any provision hereof shall not render
unenforceable or impair the remainder of this section. Accordingly, if any
provision of this section shall be determined to be invalid or
unenforceable, either in whole or in part this section shall be deemed to
delete or modify, as necessary, the offending provision and to alter the
balance of this section in order to render it valid and enforceable to the
fullest extent permissible as provided herein.
23. LIQUIDATED DAMAGES, EMPLOYER'S BREACH. In the event of any material
breach of this Agreement on the part of Employer, Executive at his sole
option, may terminate his employment under this Agreement and, at his sole
option, shall be entitled to receive as liquidated damages the amounts set
forth in the following subsection. The liquidated damages so received by
Executive shall not be limited or reduced by amounts that Executive might
otherwise earn or be able to earn during the period between termination of
his employment under this Agreement and payment of those liquidated
damages. The provisions of this Section 24 shall be in addition to any and
all rights Executive may have in equity or at law to require Employer to
comply with or to prevent the breach of this Agreement.
23.1 The present value on the payment date (as defined in this
section) of the full amount of his basic salary as provided for in this
Agreement for five (5) years following the payment due, discounted to the
payment date at a rate for quarterly periods based on prime interest rate
charged by Bank of America for short term commercial loans on the payment
date. The amount payable to Executive under this subsection shall be due
and payable in full on the date of notification of Employer by Executive of
the exercise of his option to terminate his employment under this Agreement
(the "payment date") and shall accrue interest at the rate of ten percent
(10%) per annum until paid.
24. MISCELLANEOUS:
24.1 Authority to Execute. The parties herein represent that they
have the authority to execute this Agreement.
24.2 Severability. If any term, provision, covenant, or condition of
this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the rest of this Agreement shall remain in full
force and effect.
24.3 Successors. This Agreement shall be binding on and inure to
the benefit of the respective successors, assigns, and personal
representatives of the parties, except to the extent of any contrary
provision in this Agreement.
24.4 Assignment. This Agreement may not be assigned by either party
without the written consent of the other party.
24.5 Singular, Plural and Gender Interpretation. Whenever used
herein, the singular number shall include the plural, and the plural number
shall include the singular. Also, as used herein, the masculine, feminine
or neuter gender shall each include the others whenever the context so
indicates.
24.6 Captions. The subject headings of the paragraphs of this
Agreement are included for purposes of convenience only, and shall not
effect the construction or interpretation of any of its provisions.
24.7 Entire Agreement. This Agreement contains the entire agreement
of the parties relating to the rights granted and the obligations assumed
in this instrument and supersedes any oral or prior written agreements
between the parties. Any oral representations or modifications concerning
this instrument shall be of no force or effect unless contained in a
subsequent written modification signed by the party to be charged.
24.8 Arbitration. Any controversy or claim arising out of, or
relating to, this Agreement, or the making, performance, or interpretation
thereof, shall be submitted to a panel of three (3) arbitrators. The
arbitration shall comply with and be governed by the provisions of the
American Arbitration Association. The panel of arbitrators shall be
composed of two (2) members chosen by Executive and Employer respectively
and one (1) member chosen by the arbitrators previously selected. The
findings of such arbitrators shall be conclusive and binding on the parties
hereto. The cost of arbitration shall be borne by the losing party or in
such proportions as the arbitrator shall conclusively decide.
24.9 No Waiver. No failure by either Executive or Employer to insist
upon the strict performance by the other of any covenant, agreement, term
or condition of this Agreement or to exercise the right or remedy
consequent upon a breach thereof shall constitute a waiver of any such
breach or of any such covenant, agreement, term or condition. No waiver of
any breach shall affect or alter this Agreement, but each and every
covenant, condition, agreement and term of this Agreement shall continue in
full force and effect with respect to any other then existing or subsequent
breach.
24.10 Time of the Essence. Time is of the essence of this
Agreement, and each provision hereof.
24.11 Counterparts. The parties may execute this Agreement in two
(2) or more counterparts, which shall, in the aggregate, be signed by both
parties, and each counterpart shall be deemed an original instrument as to
each party who has signed by it.
24.12 Attorney's Fees and Costs. In the event that suit be
brought hereon, or an attorney be employed or expenses be incurred to
compel performance the parties agree that the prevailing party therein be
entitled to reasonable attorney's fees.
24.13 Governing Law. The formation, construction, and performance
of this Agreement shall be construed in accordance with the laws of Nevada.
24.14 Notice. Any notice, request, demand or other communication
required or permitted hereunder or required by law shall be in writing and
shall be effective upon delivery of the same in person to the intended
addressee, or upon deposit of the same with an overnight courier service
(such as Federal Express) for delivery to the intended addressee at its
address shown herein, or upon deposit of the same in the United States
mail, postage prepaid, certified or registered mail, return receipt
requested, sent to the intended addressee at its address shown herein. The
address of any party to this Agreement may be changed by written notice of
such other address given in accordance herewith and actually received by
the other parties at least ten (10) days in advance of the date upon which
such change of address shall be effective.
IN WITNESS WHEREOF, the parties have entered into this Agreement on
the date first above written.
EXECUTIVE:
DATE: June 30, 1998 By:/s/ Xxxxxx Xxxx
-----------------------------
Xxxxxx Xxxx
EMPLOYER:
Sustainable Development International, Inc.
DATE: June 30, 1998 By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
