EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN AMERICAN SOIL TECHNOLOGIES, INC. AND XXXXXX XXXXXXXXX
This EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN AMERICAN SOIL TECHNOLOGIES, INC. and
Xxxxxx Xxxxxxxxx (this "Agreement"), effective as of January 4, 2000 (the
"Effective Date"), is entered into by and between AMERICAN SOIL TECHNOLOGIES,
INC., a Nevada corporation(the "Company"), and XXXXXX XXXXXXXXX, whose principal
residence is 6707 Corte Calabeza, Tucson, Arizona (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:
Employment. The Company hereby employs Employee as the Polymers Plus G.M. and
employee of the Company. 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 Employee's supervisors or by the Board of
Directors of the Company, as long as such assigned duties and activities are not
inconsistent with the other duties and activities of Employee that are described
in this paragraph. Employee shall report directly to and be supervised by the
President of his designee.
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, industrially
and to the best of Employee's ability, experience and talent, perform all of
Employee's obligations hereunder. Employee may have other business investments
and participate in other business ventures 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.
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"). 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 3-year
increments unless written notice is given by either party within 90 days of 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."
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. Employee's base salary shall be
reviewed no less frequently than once each year and may be increased as the
Board of Directors may, in their sole discretion, approve.
Benefits. If the Company elects in its sole discretion to establish any such
plans, Employee shall be entitled to participate in the Company's benefit plans,
including but not limited to any group medical and/or dental plan; group life,
disability or other insurance; and/or 401(k) profit sharing 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 and the Company will
provide a suitable business vehicle.
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 directly pay or shall reimburse Employee for all such reasonable
expenses upon the request of Employee.
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, but 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.
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.
"Cause". For purposes of this Agreement, "Cause" shall mean the occurrence of
any one of the following events:
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;
Employee's willful refusal to obey written directions of Employee's supervisor
or the Board of Directors 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 9;
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;
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;
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;
Fraud or dishonesty by Employee, in the good faith opinion of the Board of
Directors of the Company; or
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Commission by Employee of a criminal offense or act of moral turpitude that
constitutes a felony in the jurisdiction in which the offense is committed.
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.
"Good Reason." Employee (or, if Employee dies during the Term, Employee's
personal representative) 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"):
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);
Employee shall die during the Term;
Employee shall become disabled for a period of time at least as long as the then
remaining Term of this Agreement; or
The Company shall materially breach any of its obligations under this Agreement.
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
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.
"Change in Control." A "Change in Control" for purposes of this Agreement shall
mean any of the following events:
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;
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
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.
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 shall immediately vest and become nonforfeitable.
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"Without Cause." The Company shall be entitled to terminate Employee's
employment at any time without cause. "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.
Termination "Without Cause." If Employee's employment is terminated "Without
Cause" (as defined herein) by the Company, 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).
Facilities and Expenses. The Company shall make available to Employee such
office space, office equipment and furnishings as are suitable and appropriate
to Employee's title and duties in offices to be arranged in, or in close
proximity to, Tucson, Arizona. The Company shall promptly reimburse Employee for
all reasonable expenses 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.
Arbitration. In the event of any dispute or claim arising out of or relating to
this Agreement or the employment relationship between the Company and Employee,
including but not limited to any claims for breach of contract, discrimination,
harassment or wrongful termination, Employee and the Company agree that all such
disputes shall be fully and finally resolved by binding arbitration administered
by the American Arbitration Association in accordance with its National Rules
for the Resolution of Employment Disputes then in effect; provided, however,
that this arbitration provision will not apply to any claims arising out of or
relating to Paragraph 6 of this Agreement or Executive Employee Confidentiality,
Non-Competition and Invention Assignment Agreement attached hereto as Exhibit 2.
Any arbitration will be held in Arizona before a single arbitrator.
Miscellaneous.
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.
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.
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.
This Agreement may be amended only by a writing signed by both parties hereto.
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.
4
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.
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.
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.
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 TECHNOLOGIES, INC.,
a Nevada corporation
Date: January 4, 2000 By: /s/ Xxxx X. Kitchen
------------------------------------
Name: Xxxx X. Kitchen
----------------------------------
Title: President
---------------------------------
Date: January 4, 2000 /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx, Employee
5
EXHIBIT 1
JOB DESCRIPTION - _______
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 4, 2000 (the
"Effective Date"), is entered into by and between AMERICAN SOIL TECHNOLOGIES,
INC., a Nevada corporation (the "Company"), and XXXXXX XXXXXXXXX, whose
principal residence is 6707 Corte Calabeza, Tucson, Arizona (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 Employee Employment Agreement Between AMERICAN SOIL
TECHNOLOGIES, INC. and XXXXXX XXXXXXXXX (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. 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.
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.
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.
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.
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.
Non-Competition.
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 mixing liquids and gases in
small particle sizes (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.
Covenant Not to Compete. 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. Said Covenant shall not apply in the event that the
Licenses Agreement entered into between Employee and Employer has been
terminated.
"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 Business.
Employee acknowledges that the restrictions imposed by this Agreement are
reasonable and will not preclude Employee from being gainfully employed in other
ways and activities following a termination of employment with the Company.
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,
owner, principal, agent, director, affiliate, employee, advisor, or consultant,
or in any other capacity) which is competitive with the Business as conducted by
the Company at the time of termination of Employee's employment.
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.
2
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."
This Agreement shall not diminish the effect or binding nature of nay prior
invention assignments made to the Company by Employee.
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.
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.
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.
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 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.
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
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
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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 Appendix 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.
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:
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
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
products and /or services.
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.
Employment Relationship. The employment relationship between Employee and the
Company is governed by the Employment Agreement and , as applicable, this
Agreement.
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.
Waiver and Amendment. This Agreement may be amended only by a writing signed by
both parties hereto. 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.
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.
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.
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.
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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.
Governing Law. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Arizona, 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 Arizona 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 Arizona.
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 TECHNOLOGIES, INC., a
Nevada Corporation
Date: January 4, 2000 By: /s/ Xxxx X. Kitchen
-------------------------------------
Name: Xxxx X. Kitchen
-----------------------------------
Title: President
---------------------------------
Date: January 4, 2000 /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx, Employee
5
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:
None.
