Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT effective as of January _, 2006 (the
"Effective Date"), is entered into by and between AMERICAN SOIL TECHNOLOGY,
INC., a Nevada corporation (the "Company"), and XXXXXXX XXXXXX, whose principal
residence is 0000 Xxxxx Xxxxx, Xxxxxxxx, XX 00000 (the "Employee"). The Company
and Employee are referred to collectively herein as the "Parties."
In consideration of the mutual covenants and promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby agree as follows:
1. Employment. The Company hereby employs Employee as the Vice President in
charge of the Turf, Horticulture and Landscape Division. Employee hereby accepts
such employment and agrees to perform those duties and undertake those
responsibilities as are customarily performed by others holding similar
positions in similar businesses. Employee shall perform the duties that are
described in the Job Description attached hereto as Exhibit 1, and Employee
shall perform all other duties and activities that are assigned to Employee by
the President of the Company. Employee shall report directly to and be
supervised by the President or his designee.
2. Full Time Best Efforts. Employee shall devote substantially all of Employee's
full professional time and attention to the performance of Employee's
obligations under this Agreement, and will at all times faithfully,
industriously and to the best of Employee's ability, experience and talent,
perform all of Employee's obligations hereunder. Employee may have other
business investments that, from time to time, require minor portions of
Employee's time, provided that such activities do not interfere or conflict and
are not inconsistent with employee's duties hereunder and are not detrimental to
the Company's business interests.
3. Term of Employment. The term of Employee's employment shall commence on the
Effective Date and, unless terminated earlier pursuant to the provisions of this
Agreement, shall continue for three years (the "Initial Term"). The first three
months of the Initial Term shall be a probationary period. During said
"probationary period" the Company may terminate the Employee and the Employee
and the Company will be released from any further obligations under the terms of
this agreement other than those terms found in the Confidentiality and
Non-Competition portion of this Agreement. If the Employee is terminated by the
Company during the probationary period and has transferred to the Company any
trade secrets or trademarks or any other right to use any intellectual property
or proprietary information owned in whole or part by Employee (Property) for
stock or cash, the Company shall return said Property and the Employee shall
refund to the Company the amount paid. The Company shall immediately terminate
the use, directly or indirectly; of those trade secrets and/or property
transferred to the Company by the Employee unless the consideration paid by the
Company for the use and transfer of any Property have not been returned to the
Company. Upon the expiration of the Initial Term, Employee's employment by the
Company under the terms of this Agreement shall automatically be renewed for
successive two (2) year increments unless either party is gives written notice
of their intent to not renew this Agreement not less than 60 days prior to the
anniversary date on which this Agreement would otherwise terminate. The term of
this Agreement as provided in this Section 3 is referred to herein as the
"Term."
4. Compensation. Salary. Until termination of Employee's employment
hereunder, unless otherwise provided herein, the Company shall pay Employee an
annual base salary of not less than $75,000, less applicable withholdings,
payable in equal monthly (or other more frequent periodic) installments at the
usual times as payment of compensation to the Company's senior employees. A
review of Employee's performance shall be held on an annual basis commencing in
December of 2006, and in each December thereafter until the termination of this
Agreement.
Bonus An annual bonus shall be paid, in addition to the Employees base
salary equal to 5% of all sales, (not inclusive of freight or other
transportation charges, taxes, insurance, or any additional amounts), of
products and or equipment from turf, sales of products and or equipment
from non-retail suppliers in horticulture and sales of products and or
equipment from non-retail suppliers in landscape over $350,000 to
$1,000,000 per annum and 3% for sales from the same segments of over
$1,000,000. Said bonus shall be paid within 30 days of the end of each
calendar year as adjusted, if required because of non payment by customers
in the designated segments. In the event of the termination of employment
prior to the end of such calendar year, Employee shall be entitled to a
bonus as described above from January 1st of that calendar year to the
termination of Employee's employment. Employee has the right to receive the
bonus in stock or cash or a combination thereof.
5. Benefits. Employee shall be entitled to participate in the Company's
applicable benefit plans, including but not limited to any group medical and/or
dental plan; group life, disability or other insurance; and the 2005 Stock
Option/Stock Issuance Plan, as such plans are generally available from time to
time to similarly situated employees of the Company. Employee will be entitled
to two weeks of paid vacation per year, earned in accordance with the Company's
vacation policy.
6. Expenses. Employee is authorized to incur expenses in reasonable amounts
for promoting the business of the Company, including expenses for entertainment,
travel and similar items. Employee shall obtain and shall provide on a monthly
basis to the Company receipts sufficient in detail to satisfy the information
requirements of ss.274 of the Internal Revenue Code of 1986, as amended. The
Company shall reimburse Employee for all reasonable expenses within 10 days of
2
the receipt of each such reimbursable expense as defined herein. The
reimbursable or direct expenses shall be the following unless the Company
otherwise agrees to additional expenses.
(a) Automobile expenses shall be limited to the IRS acceptable rate per
mile with mileage log backup.
(b) The Company will supply and pay for the service of one cell phone.
(c) The Company will be responsible for one half the monthly expense of
the Internet and one dedicated fax line,
(d) Travel and entertainment expenses on behalf of the Company will be
reimbursed by the Company.
7. Vacation Days. Employee shall be entitled during the term of this
Agreement to an annual vacation at the rate provided to other executive officers
of the Company (but in no event fewer than 10 working days per calendar year),
during which time Employee compensation shall be paid in full. Employee shall be
entitled to take vacation days at such time or times and in such combination as
Employee shall choose, subject only to the needs and exigencies of the business
of the Company. Employee shall not take vacation days at such times or in such
combinations as will substantially impair Employee's ability to carry out
Employee's duties under this Agreement or as will substantially impair or harm
the Company's business.
8. Executive Employee Confidentiality, Non-Competition and Invention
Assignment Agreement. As a condition of Employee's employment and as
consideration to Company for entering into this Agreement with Employee,
Employee and the Company will enter into the Executive Employee Confidentiality,
Non-Competition and Invention Assignment Agreement dated as of the Effective
Date, a copy of which is attached hereto as Exhibit 2. The attached Executive
Employee Confidentiality, Non-Competition and Invention Assignment Agreement is
a part of this Agreement and is hereby incorporated herein by reference. The
terms of the Executive Employee Confidentiality, Non-Competition and Invention
Assignment Agreement shall survive the termination of Employee's employment by
the Company under this Agreement for any reason for a period of 3 years.
9. Termination for Cause. If Employee's employment by the Company is
terminated for Cause, Employee shall be paid the compensation provided for above
through the date of termination, and thereafter the Company shall have no
further compensation, benefit or payment obligations to Employee under this
Agreement.
10. "Cause". For purposes of this Agreement, "Cause" shall mean the
occurrence of any one of the following events:
(a) Employee's material breach of any provision of this Agreement or of
Executive Employee Confidentiality, Non-Competition and Invention
Assignment Agreement of even date herewith, entered into by and
between the Company and Employee, which breach is not cured within ten
days after the Company provides Employee with written notice of the
nature and existence of such material breach;
3
(b) Employee's willful refusal to obey written directions of Employee's
supervisor of the Company (so long as such directions do not involve
illegal or immoral or otherwise improper acts), which refusal
continues for a period of five business days after notice to Employee
by the Company, and which notice references such refusal and this
Section 7.
(c) Employee's failure to perform Employee's duties and responsibilities
with diligence and in accordance with the productivity and quality
requirements of the Company, which failure continues for a period of
ten business days after written notice to Employee by the Company of
Employee's failure to perform; provided, however, that if Employee has
been provided written notice pursuant to this Section 9 on two
separate occasions during the Initial Term, any subsequent failure by
Employee to perform Employee's duties and responsibilities in
accordance with the Company's requirements shall constitute Cause and
the Company shall not be required to provide any written notice or
opportunity for Employee to correct Employee's performance prior to a
termination of Employee's employment by the Company;
(d) Employee's repeated refusal to comply with Company written policies or
requirements which are adopted by the Board of Directors from time to
time and which apply to Employee's responsibilities;
(e) Employee's action, or failure to act, in violation of any provision of
the Company's standard employee guidelines, including but not limited
to any policy concerning sexual harassment, substance abuse, as such
policies may be in effect from time to time, if such violation of the
Company's policy would generally result in the termination of
employment of a Company employee;
(f) Fraud or dishonesty by Employee, in the good faith opinion of the
Board of Directors of the Company; or
(g) If Employee is convicted or admits to the commission of a criminal
offense or act of moral turpitude that constitutes a felony in the
jurisdiction in which the offense is committed.
11. Termination for Good Reason. In the event of termination of Employee's
employment by the Company for Good Reason, the Company shall continue to pay
Employee Employee's base salary, less applicable withholdings, for the remainder
of the then applicable Term of this Agreement in installments at the usual times
for the payment of the Company's senior employees (and the Company shall
continue to pay and provided all other benefits or compensation payable to
4
Employee hereunder through the then applicable Term), and any ownership options
of Employee that are subject to vesting shall immediately and automatically
become fully vested without any further action by Employee.
12. "Good Reason." Employee shall have the right, upon written notice to
the Company, at any time during the Initial Term to terminate Employee's
employment hereunder if any one or more of the following events shall have
occurred, which event shall have remained unremedied by the Company for a period
of thirty days following written notice thereof from Employee (any such
termination being referred to herein as a termination for "Good Reason"):
(h) The Company shall materially diminish the responsibilities, authority,
status or job duties or other benefits of Employee under this
Agreement (other than in connection with Employee's unavailability by
reason of disability or breach by Employee of this Agreement or
otherwise);
(i) Employee shall die during the Term;
(j) Employee shall become disabled to perform her normal and customary job
duties for a period of time at least as long as the then remaining
Term of this Agreement as substantiated by a medical doctor or other
health care professional then caring for Employee; or
(k) The Company shall materially breach any of its obligations under this
Agreement.
13. Effect of a Change in Control. Upon termination of Employee's
employment within six months of the occurrence of any Change in Control, the
Company shall pay to Employee the entire amount of cash compensation provided
for in Section 4.(a) that is payable during the remainder of the Term. Such
amount shall be payable in a lump sum cash payment that shall be made to
Employee within thirty (30) days of the effective date of the Change in Control.
In addition, any ownership options of Employee (its obvious the options are in
the Company) shall immediately vest and become nonforfeitable.
14. "Change in Control." A "Change in Control" for purposes of this
Agreement shall mean any of the following events:
(l) any person (as that term is used in Rule 13d-5 under the Securities
Exchange Act of 1934) or group (as that term is used in Sections
3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934) who is
not, as of the Effective Date, the beneficial owner of securities of
the Company representing 25% or more of the combined voting power of
the Company's then outstanding securities becomes the beneficial owner
of securities of the Company representing 25% or more of the combined
voting power of the Company's then outstanding securities;
5
(m) the shareholders of the Company approve a merger or consolidation of
the Company with any other company, other than (i) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 75% of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or
(ii) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
person who did not own more than 50% of the combined voting power of
the Company's securities acquires more than 50% of the combined voting
power of the Company's then outstanding securities; or
(n) the shareholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the
Company of all or substantially all the Company's assets.
15. Termination "Without Cause." If Employee's employment is terminated
"Without Cause" (as defined herein) by the Company, other than during the
Probationary period of the first 90 days, the Company shall continue to pay
Employee Employee's base salary and all other benefits to which Employee may be
entitled prior to such termination, less applicable withholdings, for the
remainder of the then applicable Term of this Agreement, in installments at the
usual times for the payment of the Company's employees (in addition to all other
benefits or compensation payable to Employee hereunder up to the date of the
termination).
16. "Without Cause." The Company shall be entitled to terminate Employee's
employment at any time without cause. (by the mere fact that we have a contract,
it cannot be an "at will" employment and you are always free to terminate even
with a contract) "Without Cause" shall mean, for purposes of this Agreement, for
any reason that is not "Cause" or "Good Reason" or the result of a "Change in
Control" as defined herein.
17. Facilities and Expenses. The Company shall make available to Employee
such facilities, and equipment as are suitable and appropriate to assist
Employee to meet her obligations to the Company in or in close proximity to,
Carlsbad, California. These amounts shall be paid directly by the Company. The
Company shall promptly reimburse Employee for all reasonable expenses, as set
forth in Section 3, incurred in the performance of Employee's duties hereunder,
including expenses for entertainment, travel, and management seminars, subject
to Employee satisfying the Company's reasonable requirements with respect to the
approval, reporting and documentation of such expenses.
6
18. Miscellaneous.
a. All payments made to or for the benefit of Employee under this
Agreement shall be subject to withholdings for federal, state and
local taxes, FICA, and other withholdings required by applicable law.
b. For purposes of this Agreement, notices, approvals and other
communications provided for herein shall be in writing and shall be
deemed to have been duly given when delivered in person, by facsimile
transmission, by express courier, or by first class United States
Mail, postage prepaid, return receipt requested. Notices to the
Company shall be sent to the attention of the current President and
Chief Employee Officer of the Company at its legally registered
address in Arizona as shall be provided in writing to Employee in
accordance with this section. Notices to Employee shall be addressed
to Employee's most recent address as set forth in the personnel
records of the Company. Notices shall be effective upon receipt.
Either party shall be entitled to change the address at which notice
is to be given by providing notice to the other party of such change
in the manner provided herein.
c. This Agreement, together with Executive Employee Confidentiality,
Non-Competition and Invention Assignment Agreement attached hereto as
Exhibit 2 sets forth the entire agreement of the parties with respect
to the subject matter hereof, and supersedes all prior agreements,
whether written or oral. Only a writing signed by both parties hereto
may amend this Agreement.
d. Employee may not assign this Agreement, but the Company may assign any
or all of its rights under this Agreement to any affiliate or
subsidiary company of the Company, so long as the Company remains
liable for the performance by that affiliate or subsidiary of the
payment obligations of the Company hereunder. Except as provided in
the preceding sentence, this Agreement shall be binding upon, and
inure to the benefit of, the parties and their respective personal
representatives, successors and assigns.
e. No provision of this Agreement shall be altered, amended, revoked or
waived except by an instrument in writing signed by the Party sought
to be charged with such amendment, revocation or waiver.
7
f. No waiver of any provision of this Agreement shall be valid unless it
is in writing and signed by the party against whom it is charged.
g. The invalidity or unenforceability of any provision of this Agreement
shall not affect the other provisions hereof, and this Agreement shall
be construed as if such invalid or unenforceable provision were
omitted.
h. This Agreement shall be governed by and construed in accordance with
the laws of the State of California (without resort to the conflict of
law principles thereof).
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement
on the dates set forth below, to be effective as of the Effective Date.
AMERICAN SOIL TECHNOLOGY, INC., a
Nevada corporation
Date: By:
------------------- ----------------------------------------
Xxxx X. Xxxxx, President/CEO
EMPLOYEE
Date:
------------------- ----------------------------------------
XXXXXXX XXXXXX
8
EXHIBIT 1
Job Description
Vice President Turf, Horticulture and Landscape Division
RESPONSIBILITY
This position is responsible day-to-day management of operations and long range
planning for sales into the United States Turf, Horticulture and Landscape
industry, which shall include the recreational, lawn, landscape, horticulture
and golf industries not including retail, of all applicable products of American
Soil Technologies, Inc. The effort will include working through dealers and
directly with the customers to create demand for the products. This position
will be responsible to train customers, dealers and their representatives on the
features, advantages, and benefits of the products. The training effort will be
critical to properly positioning the products into the marketplace.
Other responsibilities will include the supervision of the research of the
products in order to give credibility to otherwise anecdotal research. This will
be done with the contribution of other technical assistance needed within the
Company and if necessary utilizing outside experts.
You will also be responsible to insure that the Company is properly represented
at trade shows and at any other gathering of large numbers of those who are and
can become customers. This would include supervising the normal activity
required at a trade show such as: displaying products, making product literature
available, and selling the features, advantages, and benefits of the products.
This position will be responsible for developing and implementing a sales and
marketing plan including sales targets, budgets, timetables, and developing a
sales force. This would include developing, retaining, and motivating a top
quality team of people. This position is responsible for developing and
maintaining all records and knowledge for distributors and all other businesses
and customers in this region.
SPECIFIC RESPONSIBILITIES:
* Develop a market for Turf, Horticulture and Landscape products in the
United States.
* Preparation of the sales plan including budgets, sales targets, and
timetables
9
* Assist in policy making
* Select dealers
* Supervise training of sales representatives
* Develop customers throughout the United States.
* Supervise all research of the products
* Customer relations
* Profitability
* Trade shows and distribution of product information
* Gather market research data from customer to guide product development
and marketing
* Evaluate other products as possible acquisition candidates.
* As appropriate, attract, retain, and motivate people
* Conduct special projects as required
10
EXHIBIT 2
Executive Employee Confidentiality, Non-Competition and
Invention Assignment Agreement
This EXECUTIVE EMPLOYEE CONFIDENTIALITY, NON-COMPETITION AND INVENTION
ASSIGNMENT AGREEMENT (the "Agreement"), effective as of January 3, 2006 (the
"Effective Date"), is entered into by and between AMERICAN SOIL TECHNOLOGY,
INC., a Nevada corporation (the "Company"), and XXXXXXX XXXXXX, whose principal
residence is 0000 Xxxxx Xxxxx, Xxxxxxxx, XX 00000 (the "Employee"). The Company
and Employee are referred to collectively herein as the "Parties."
Recitals
A. As of the Effective Date, the Company and Employee have entered into a
separate Executive Employment Agreement Between AMERICAN SOIL TECHNOLOGY, INC.
and XXXXXXX XXXXXX (the "Employment Agreement"). Unless otherwise defined
herein, capitalized terms used in this Agreement have the meanings given in the
Employment Agreement. In the event of any conflict between the terms of this
Agreement and the Employment Agreement, the terms of the Employment Agreement
shall govern.
B. Employee's employment by Company creates a relationship of confidence
and trust between Employee and Company with respect to certain information
applicable to the business of the Company and its clients or customers.
C. The Company possesses and will continue to possess information that has
commercial value and is treated by Company as confidential. Such information may
include information created, discovered or developed by Employee during the
period of or arising out of Employee's or Employee employment by Company,
whether before or after the date hereof, as set forth in paragraph 6 below. Such
information may also include information belonging to Company's owners,
managers, clients, business partners, customers or suppliers. All such
information is hereinafter called "Confidential Information." Confidential
Information for purposes of this Agreement also includes, without limitation,
discoveries, developments, designs, improvements, inventions, blueprints,
structures, software, processes, computer programs, know-how, data, techniques,
formulas, marketing, and business plans and outlines, strategies, budgets,
forecasts, projections, unpublished financial statements, costs, fee schedules,
client and supplier lists, client and prospective client databases, access codes
and similar security information and procedures, and all patents, copyrights,
maskworks, trade secrets and other proprietary rights thereto; provided,
however, that the term "Confidential Information" shall not include any of the
foregoing that is in the public domain other than as the result of a breach of
an obligation of confidentiality.
D. Employee recognizes that any unauthorized use or disclosure of
Confidential Information would cause serious injury to Company, and that the
Company's willingness to employ Employee depends upon Employee's commitment to
protect Company's Confidential Information and to comply with all of the
provisions of this Agreement
Agreement
Therefore, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Employee hereby agrees as
follows.
19. Protection of the Confidential Information. At all times during and
after Employee's employment, Employee shall hold all Confidential
Information in confidence and shall protect it with utmost care.
Employee shall not disclose, retain, copy, or permit any unauthorized
person to disclose or copy any of the Confidential Information, except
as may be necessary for the conduct of the Company's business.
Employee shall not use any of the Confidential Information except as
necessary to perform Employee's duties as an employee of the Company
as provided in this Agreement and in the Employment Agreement.
20. Confidential Information Belonging to Third Parties. In the event that
Employee has or has had access to any Confidential Information
belonging to any third party, including but not limited to any of
Employee's previous employers, Employee shall hold all such
Confidential Information in confidence and shall comply with the terms
of all agreements between Employee or Company and any third party with
respect to such Confidential Information.
21. Exceptions. This Agreement is not to prevent the use or disclosure by
Employee of information that (a) is required by law to be disclosed,
but only to the extent that such disclosure is legally required, (b)
becomes a part of the public knowledge other than by a breach of an
obligation of confidentiality, or (c) is rightfully received from a
third party and neither the Company nor Employee is obligated to hold
such information confidential.
22. Return of Confidential Information. Upon the Company's request, and in
any event upon termination of Employee's employment by the Company for
any reason, Employee shall promptly return to Company all materials in
Employee's or possession or control that contain or represent
Confidential Information, including but not limited to documents,
drawings, diagrams, flow charts, computer programs or files,
memoranda, notes, and every other medium, and all copies thereof.
2
23. Non-Competition.
a. Acknowledgement. Employee acknowledges that (i) the Company and/or its
affiliated and subsidiary organizations are engaged in a variety of
business endeavors; including development of applications for polymers
(the "Business"); (ii) the Business is conducted throughout the United
States and is expected to be conducted in one or more countries
internationally; (iii) Employee's work for the Company will give
Employee access to trade secrets and confidential information
concerning the Company and the Business, including, without
limitation, proprietary information and trade secrets, investor
addresses and contact lists, techniques for raising development
capital for the Company; (iv) the ability of the Company and its
affiliates to continue the Business is likely to be materially
jeopardized and the value of the Company and its affiliates reduced if
Employee competes with, or assists other persons in competing, with
the Company and/or any of its affiliates.
b. Covenant Not to Compete in Turf and Horticulture Polymer Business.
Therefore, for a period of 3 years from the date of any termination of
Employee's employment by the Company for any reason, Employee shall
not anywhere in the world, accept employment with or render any
service to a direct competitor of the Company or create or engage in
creating or conducting a competing business in the turf and
horticulture polymer business.
i. "Direct Competitor" and "competing business" for purposes of this
Agreement mean any business or entity that is in any business
that is the same or similar to the Company's polymer Business.
ii. Employee acknowledges that the restrictions imposed by this
Agreement are reasonable and will not preclude Employee from
being gainfully employed, other than in the turf and horticulture
polymer industry, in other ways and activities following a
termination of employment with the Company
iii. Without limiting the foregoing, Employee also agrees that, during
the Term of the Employment Agreement, and for a period of 3 years
after termination of the Employment Agreement, Employee shall not
do any of the following: carry on any business or activity
(whether directly or indirectly, as a partner, shareholder,
3
owner, principal, agent, director, affiliate, employee, advisor,
or consultant, or in any other capacity) which is competitive
with the Turf and Horticulture Polymer Business as conducted by
the Company at the time of termination of Employee's employment.
c. Enforceability. If any court shall determine that the duration,
geographic limitations, subject or scope of any restriction contained
in this Section 5 of this Agreement is unenforceable, it is the
intention of the parties that this Section 5 of this Agreement shall
not thereby be terminated but shall be deemed amended to the extent
required to make it valid and enforceable, such amendment to apply
only with respect to the operation of this Section 5 of this Agreement
in the jurisdiction of the court that has made the adjudication.
24. Assignment of Inventions. 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. Such inventions are referred to herein as
"Inventions," which prior inventions are attached hereto as Exhibit A.
a. This Agreement shall not diminish the effect or binding nature of any
prior invention assignments made to the Company by Employee as set
forth in the Employment Agreement.
b. Without limiting the foregoing, at all times the Company (or its
nominee) shall have the right to obtain, for its own benefit and in
its own name (and entirely at its expense) patents and patent
applications of any type, and all renewals and extensions of such
patents and applications for the inventions and improvements described
in this Section. Employee shall provide Company the exclusive right of
assignment for any Invention as defined in this agreement. In the
event that the Company does not exercise its option or as such
assignment within 30 days after first being notified by Employee in
writing of such invention, Employee may then offer or otherwise
economically exploit any such invention independent of Company's claim
to assignment.
4
c. In order to protect the right, title and interest of the Company (or
its successors, assigns or nominees) in such inventions or
improvements, in connection with any applications or patents necessary
to convey rights to those improvements or inventions to the Company,
Employee shall, without further compensation, execute and deliver all
papers and instruments and perform such further acts, including giving
testimony or furnishing evidence in the prosecution or defense of
appeals, interferences, suits and controversies relating to any of the
inventions or improvements, as may be deemed necessary by the Company.
25. Additional Cooperation with Respect to Inventions. Employee shall (a)
treat all information with respect to Inventions as Confidential Information
within the meaning of this Agreement; (b) keep complete and accurate records of
the Inventions, which records will be the property of Company; (c) testify in
any proceedings or litigation related to the Inventions; and (d) in case the
Company will desire to keep secret any Inventions or will for any reason decide
not to have letters patent applied for thereon, refrain from disclosing the
Invention and from applying from letters patent thereon.
26. Assistance of the Company. Without limiting any of the foregoing,
Employee shall assist Company in every way deemed necessary or desirable by
Company (but at the Company's expense) to obtain and enforce patents,
copyrights, trademarks and other rights and protections relating to any
Confidential Information and Inventions in any and all countries, and to that
end Employee will execute all documents for use in obtaining and enforcing such
patents, copyrights, trademarks and other rights and protections as Company may
desire, together with any assignments thereof to Company or persons designated
by it. If Company is unable for any reason to secure Employee's signature, if
needed, to any document required to apply for or execute any patent, copyright,
maskwork or other applications with respect to any Inventions (including
improvements, renewals, extensions, continuations, divisions or continuations in
part thereof), Employee hereby irrevocably designates Company and its duly
authorized officers and agents as Employee's agents and attorneys-in-fact and on
Employee's behalf to execute and file any such application and to do all other
lawfully permitted acts to further the prosecution and issuance of patents,
copyrights, maskworks or other rights thereon with the same legal force and
effect as if executed by Employee. Employee's obligation to assist the Company
shall continue beyond the termination of Employee's employment, but Company
shall compensate employee at a reasonable rate after Employee's or Employee
termination for time actually spent by Employee at the Company's request on such
assistance.
27. Employee Inventions. Attached as Exhibit A is a list of all Inventions
and information created, discovered, or developed by Employee whether or not
patentable or registrable under patent, copyright or similar statutes, made or
conceived or reduced to practice or learned by Employee, either alone or jointly
5
with others, excluding any Inventions, relating in any way to the Company's
business or demonstrably anticipated research and development that were made by
Employee prior to Employee's employment with the Company (the "Employee
Inventions"). Employee represents that Exhibit A is complete and contains no
confidential information. Employee understands that Employee has no rights in
any such Employee Inventions other that those listed on Exhibit A. If there is
nothing identified on Exhibit A or if "none" is indicated on Exhibit A, employee
represents that Employee has made no Employee Inventions as of the time of
signing this Agreement. Except as listed on Exhibit A which is attached to this
Agreement, Employee will not assert any rights to any inventions, discoveries,
concepts or ideas, or improvements thereof or know-how related thereto, as
having been made or acquired by Employee prior to being employed by the Company,
or since then, and not otherwise covered by the terms of this Agreement.
28. No Conflicts With Prior Obligations. Employee hereby represents and
warrants that Employee's employment by the Company and Employee's performance of
Employee's obligations under this Agreement will not conflict with any
obligations of any nature or type that Employee has or may have to any third
party or third parties. Employee will not disclose to Company or use in
Company's behalf any confidential or proprietary information belonging to a
third party, unless the third party has consented to the disclosure or use of
the information. Covenant Not to Solicit. For a period of one (1) year from the
date of any termination of Employee's employment with the Company for any
reason:
a. Employee shall not solicit for employment, attempt to employ, or
assist any other person or entity in employing or soliciting for
employment, any employee or representative of Company, either for
Employee or for any other entity; and
b. Employee shall not solicit or influence or attempt to solicit or
influence any client of the Company, customer of the Company or other
person who may become a client or customer of the Company, either
directly or indirectly, in any way that directs or is intended or is
likely to direct or cause such actual or potential client, customer or
other person not to purchase the Company's polymer products and /or
services.
29. Equitable Remedies. Employee acknowledges that breach of this Agreement
would cause Company to suffer irreparable harm for which monetary damages would
be inadequate compensation. Employee agrees that Company will be entitled to an
injunction restraining any actual or threatened breach of this Agreement, or
specific performance, if applicable, in addition to any monetary damages.
30. Employment Relationship. The employment relationship between Employee
and the Company is governed by the Employment Agreement and, as applicable, this
Agreement.
6
31. Entire Agreement. This Agreement and the Employment Agreement to which
this Agreement is attached as an exhibit set forth the entire agreement of the
parties with respect to the subject matter hereof, and supersedes all prior
agreements, whether written or oral.
32. Waiver and Amendment. Only a writing signed by both parties hereto may
amend this Agreement. No oral waiver, amendment or modification of this
Agreement shall be effective under any circumstances. The waiver by the Company
of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any other or subsequent breach of this Agreement by Employee.
33. Term of Agreement. This Agreement will remain in force during
Employee's employment by the Company and will continue thereafter until all
Confidential Information acquired by Employee becomes part of the public
knowledge other than through a violation of this Agreement.
34. Survival. The provisions of this Agreement shall survive termination or
expiration of this Agreement and termination of the Employment Agreement, for
any reason, for a period of 3 years after termination of the Term of the
Employment Agreement.
35. Successors and Assigns. This Agreement may not be assigned by Employee,
but the Company may assign any or all of its rights under this Agreement to any
affiliate or subsidiary company of the Company, so long as the Company remains
liable for the performance by that affiliate or subsidiary of the payment
obligations of the Company hereunder. Except as provided in the preceding
sentence, this Agreement shall be binding upon, and inure to the benefit of, the
parties and their respective personal representatives, successors and assigns.
36. Severability. Should any provision of this Agreement be considered
unenforceable by a court of law, the remainder of this Agreement shall remain in
force to the fullest extent permitted by law.
37. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of law. Employee hereby consents to the personal
jurisdiction of the state and federal courts located in the State of California
in connection with any litigation related to this Agreement and agrees that the
exclusive venue for any such litigation shall be in such courts located in the
State of California.
7
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement
on the dates set forth below, to be effective as of the Effective Date.
AMERICAN SOIL TECHNOLOGY, INC.,
Date: January 18, 2006 By: /s/ Xxxx X. Xxxxx
---------------- --------------------------------
Xxxx X. Xxxxx, President/CEO
EMPLOYEE
Date: January 18, 2006 /s/ Xxxxxxx Xxxxxx
---------------- --------------------------------
XXXXXXX XXXXXX,
8
EXHIBIT A
The following is a list of all Employee Inventions made, conceived,
developed or reduced to practice by Employee prior to the date of this
Agreement:
Green Exchange Inc. dba GeoGreen- Interactive, Online Pictorially-driven
Turf, Plant, Insect, Disease, Weed and Green Industry related products and
services database and search engine with patents pending namely the Green
Guru and Product Guru and well as business plans, projections and concepts.
GeoGreen GIS database and golf, turf and horticultural applications
Soil Medic and Soil Therapy -Trademarks
Soil Medic Business Plan, Projections and Concepts, Product Formulations
based on previous experience and education and all additional product line
ideas.
9
