EXHIBIT 10.2
WORLD WASTE TECHNOLOGIES, INC.
CONSULTANT ENGAGEMENT, CONFIDENTIAL INFORMATION AND
WORK ASSIGNMENT AGREEMENT
This CONSULTANT ENGAGEMENT, CONFIDENTIAL INFORMATION AND WORK ASSIGNMENT
AGREEMENT (this "AGREEMENT") is made and entered into as of February 4, 2008, by
and between Xxxx Xxxxx ("CONSULTANT") and World Waste Technologies, Inc.
("COMPANY").
As used herein the term "COMPANY AFFILIATE" shall mean a person or entity,
directly or indirectly controlling, controlled by or under common control with
Company. As used herein the term "COMPANY PREDECESSOR" shall mean any person or
entity with respect to which Company or any Company Affiliate has acquired or
succeeded to the assets thereof, whether by merger, acquisition, asset purchase
or otherwise.
As a condition to, and in consideration of, Consultant's engagement by
Company, Consultant agrees to the following:
1. Independent Contractor Relationship. In accordance with the mutual
intentions of Company and Consultant, this Agreement establishes between them an
independent contractor relationship, and all of the terms and conditions of this
Agreement shall be interpreted in light of that relationship. There is no
intention to create by this Agreement an employer-employee relationship.
2. Engagement.
(a) Consultant shall perform the services listed on Exhibit A
attached hereto and incorporated herein and such other services as Company shall
reasonably request of Consultant from time to time (the "SERVICES"). As
compensation for such engagement, Consultant shall be paid by Company in
accordance with Exhibit B attached hereto and incorporated herein. Consultant
agrees to perform the Services through April 1, 2008. Consultant may continue
providing the Services after April 1, 2008, pursuant to an extension of this
Agreement or by entering enter into a full time employment agreement with
Company, in either case as may be mutually agreed upon by Consultant and
Company.
(b) NOTWITHSTANDING THE FOREGOING, CONSULTANT UNDERSTANDS,
ACKNOWLEDGES AND AGREES THAT HIS ENGAGEMENT WITH COMPANY MAY BE TERMINATED AT
ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION OF
COMPANY OR CONSULTANT, WITH OR WITHOUT NOTICE.
3. Confidential Information.
(a) Company Information. Consultant agrees that during the term of
his engagement and at all times thereafter, he shall hold in strictest
confidence, and not use, except for the benefit of Company, or disclose to any
person, firm or corporation without written authorization of Company, any
Confidential Information of Company, or any Company Affiliate or Company
Predecessor. Consultant understands that "CONFIDENTIAL INFORMATION" means any
Company, Company Affiliate, or Company Predecessor information of any kind or
nature, including without limitation, proprietary information, technical data,
trade secrets or know-how, including, but not limited to, research, product
plans, products, services, customer lists and customers (including, but not
limited to, customers of Company, or any Company Affiliate or Company
Predecessor on whom Consultant calls or becomes acquainted during the term of
his engagement), markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware configuration
information, marketing, finances or other business information disclosed to
Consultant by Company, or any Company Affiliate or Company Predecessor either
directly or indirectly in writing, orally or by drawings or observation of parts
or equipment. Consultant further understands that Confidential Information does
not include any of the foregoing items that has become publicly known and made
generally available through no wrongful act of Consultant or of others who were
under confidentiality obligations as to the item or items involved or
improvements or new versions thereof.
(b) Former Employer Information. Consultant agrees that he will
not, during his engagement with Company, improperly use or disclose any
proprietary information or trade secrets of any former or concurrent employer or
other person or entity and that he will not bring onto the premises of Company
or any Company Affiliate any unpublished document or proprietary information
belonging to any such employer, person or entity unless consented to in writing
by such employer, person or entity.
(c) Third Party Information. Consultant recognizes that Company
and Company Affiliates have received and in the future will receive from third
parties their confidential or proprietary information subject to a duty on such
recipient's part to maintain the confidentiality of such information and to use
it only for certain limited purposes. Consultant agrees to hold all such
confidential or proprietary information in the strictest confidence and not to
use or disclose it to any person, firm or corporation or to use it except as
necessary in carrying out his work for Company and Company Affiliates consistent
with Company's or such Company Affiliate's agreement with such third party.
4. Conflicting Employment. Consultant agrees that, during the term of
his engagement with Company, he will not engage in any other employment,
occupation, consulting or other business activity related to or competitive with
the business in which Company or any Company Affiliate is now involved or
becomes involved during the term of his engagement, nor will he at any time
engage in any other activities that conflict with his obligations under this
Agreement or otherwise to Company or any Company Affiliate.
5. Returning Company Property. Consultant agrees that, at the time his
engagement by Company ends, he will deliver to Company (and will not keep in his
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by him pursuant
to his engagement with Company or otherwise belonging to Company or any Company
Affiliate, its or their successors or assigns.
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6. Solicitation of Employees. Consultant agrees that during the term of
this Agreement and for a period of twelve (12) months immediately following the
termination of Consultant's relationship with Company for any reason, he shall
not either directly or indirectly solicit, induce, recruit or encourage any of
Company's or Company Affiliate's employees or consultants to leave their
employment, either for their own employment or engagement or for any other
person or entity.
7. Representations. Consultant agrees to execute any proper oath or
verify any proper document required to carry out the terms of this Agreement.
Consultant represents that his performance of all the terms of this Agreement
will not breach any agreement to keep in confidence proprietary information
acquired by him in confidence or in trust prior to his engagement by Company.
Consultant not entered into, and agrees that he will not enter into, any oral or
written agreement in conflict herewith.
8. Consultant Responsible For His Agents and Employees. Consultant
shall select and shall have full and complete control of and responsibility for
all agents, employees and subcontractors, if any, employed or used by Consultant
and for the conduct of Consultant's independent business and none of said
agents, employees or subcontractors shall be, or shall be deemed to be, the
agent, employee or subcontractor of Company for any purpose whatsoever, and
Company shall have no duty, liability or responsibility, of any kind, to or for
the acts or omissions of Consultant or such agents, employees or subcontractors,
or any of them. Consultant agrees to defend, indemnify and hold Company harmless
from and with respect to any and all claims of any kind based on any act or
omission of Consultant or Consultant's agents, employees or subcontractors.
9. Consultant Responsible For Taxes and Indemnification. Without
limiting any of the foregoing, Consultant agrees to accept exclusive liability
for the payment of taxes or contributions for unemployment insurance or old age
pensions, annuities or social security payments, or other statutory employer
obligations or contributions which are measured by the wages, salaries or other
remuneration paid to Consultant or the employees of Consultant, if any, and to
reimburse and indemnify Company for such taxes or contributions or penalties
which Company may be compelled to pay. Consultant also agrees to comply with all
valid administrative regulations respecting the assumption of liability for such
taxes and contributions.
10. No Assignment By Consultant. Consultant shall not assign or transfer
any rights under this Agreement without Company's prior written consent, and any
attempt of assignment or transfer without such consent shall be void. Company
may, however, assign this Agreement.
11. Work Made For Hire. All original works of authorship and artistic
and other material of any kind or nature (including, without limitation, all
inventions, methods, designs, operations, business methods, production
processes, services, products, suggestions, processes, designs, algorithms,
methods, techniques, ideas, discoveries, formulae, code, computer software,
developments, concepts, improvements, enhancements, trademarks, domain names or
trade secrets, whether or not patentable or registrable under copyright,
trademark or similar laws), which are or have been conceived, prepared, created,
composed, developed, or reduced to practice, in whole or in part by Consultant
and/or by other contributors at any time in connection with any and all work
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commissioned, conceived, prepared, created, composed, or developed by or for
Consultant or within the scope of his engagement with Company or any Company
Affiliate or Company Predecessor, including, without limitation, the Services
(all of the foregoing, collectively, "WORKS") and all results and proceeds of
every kind in and to the services that have been rendered and which will be
rendered by Consultant for Company or any Company Affiliate or Company
Predecessor, at any time heretofore or hereafter (all of the foregoing,
including the Works, collectively, the "MATERIAL") (i) was intended at all times
prior to its creation to constitute, (ii) since its creation has constituted and
(iii) shall in the future constitute, a "work made for hire" for Company or such
Company Affiliate or Company Predecessor. Accordingly Company or such Company
Affiliate is and shall forever be deemed the author and exclusive owner thereof,
and has and shall have any and all right, title, and interest of any kind or
nature in and to the Material (the "RIGHTS"). The Rights shall, include, without
limitation, (i) the exclusive right to exploit any or all of the Material in any
and all media, markets and languages and in any manner now known or hereafter
devised, throughout the universe, in perpetuity; (ii) all copyrights thereto
(including, without limitation, any renewals, extensions or revivals thereof),
and (iii) any and all other patent, trademark, trade secret, intellectual
property and ownership and exploitation rights and all renewals, extensions or
revivals of each of the foregoing.
12. Arbitration and Equitable Relief.
(a) Arbitration. Except as provided in Section 12 (b) below, it is
agreed that any dispute or controversy arising out of or under or relating to
this Agreement or any interpretation, construction, performance or breach
thereof or otherwise arising out of or relating to its engagement or its
termination shall be settled by arbitration to be held before a single
arbitrator in San Jose, California, in accordance with the Arbitration Rules
then in effect of the American Arbitration Association and pursuant to
California Civil Procedure Code ss.1282-1284.2. The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction. Unless otherwise provided by statute, Company and
Consultant shall each pay one-half of the costs and expenses of such
arbitration, and each shall separately pay its or his own counsel fees and
expenses.
(b) Equitable Remedies. Consultant agrees that it would be
impossible or inadequate to measure and calculate Company's damages from any
breach of the covenants set forth in Sections 3, 4, and 6 herein. Accordingly,
Consultant agrees that if he breaches any of such Sections, Company will have
available, in addition to any other right or remedy available, the right to
obtain an injunction from a court of competent jurisdiction restraining such
breach or threatened breach and to specific performance of any such provision of
this Agreement. Consultant further agrees that no bond or other security shall
be required in obtaining such equitable relief and Consultant hereby consents to
the issuance of such injunction and to the ordering of specific performance.
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13. General Provisions.
(a) Governing Law: Consent to Personal Jurisdiction. This
Agreement will be governed by the laws of the State of California. Company and
Consultant hereby expressly consent to the personal jurisdiction of the
above-referenced arbitrator and, if necessary, of the state and federal courts
located in California for the purpose of any action or judgment with respect to
this Agreement or any other matter referenced in Section 12 above. Consultant
agrees that service by registered or certified mail, return receipt requested,
delivered to him at the address set forth following his name in the signature
block below (or such other address of which he notifies Company in writing) will
be deemed in every respect effective service of process upon it for all purposes
with respect to this Agreement or any other matter referenced in Section 12
above.
(b) Time Is of the Essence. Consultant acknowledges and agrees
that time is of the essence for the performance of his obligations hereunder.
(c) Entire Agreement. This Agreement sets forth the entire
agreement and understanding between Company and Consultant relating to the
subject matter herein and supersedes any all discussions and written agreements
between them. No modification of or amendment to this Agreement, nor any waiver
of any rights under this agreement, will be effective unless in writing signed
by the party to be charged (which, as to Company, shall require signature by its
Chief Executive Officer). Any subsequent change or changes in the Services or
Consultant's duties or compensation shall not affect the validity or scope of
this Agreement.
(d) Severability. If one or more of the provisions in this
Agreement are deemed void by law, then the remaining provisions will continue in
full force and effect.
(e) Successors and Assigns. This Agreement will be binding upon
Consultant's heirs, executors, administrators and other legal representatives
and will be for the benefit of Company, its successors, and its assigns.
(f) Survival. Sections 3, 4, 8, 9, 11, 12, 13 and 14 shall survive
termination of this Agreement.
14. Acknowledgment. Consultant acknowledges and agrees to each of the
following items:
(a) Consultant is executing this Agreement voluntarily and without
any duress or undue influence by Company or anyone else; and
(b) Consultant has carefully read this Agreement and the Exhibits
attached hereto. Consultant has asked any questions needed for him to understand
the terms, consequences and binding effect of this Agreement and fully
understand them.
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(c) This Agreement is being executed by the parties effective as
of the date and year first set forth above.
/s/ XXXX XXXXX
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Signature of Consultant
XXXX XXXXX
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Name of Consultant
--------------------------------
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Address of Consultant
(typed or printed)
WORLD WASTE TECHNOLOGIES, INC.
By: /s/ XXXX XXXXXXXX
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Its: CEO
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EXHIBIT A
SERVICES
Consultant shall serve Company as interim Chief Financial Officer,
reporting directly to the CEO, performing services customarily performed by the
CFO of a public corporation, together with such other duties as may be assigned
to him by the CEO. Such duties shall include, but not be limited to, working
with Xxxxx Xxxx to implement the transition plan outlined in Exhibit C hereto.
A-1
EXHIBIT B
COMPENSATION
Consultant shall be entitled to the following compensation for providing
the Services under this Agreement:
$8,000 per month (adjusted proportionality for any partial period),
payable in arrears on the last day of each month.
B-1
EXHIBIT C
TRANSITION PLAN
Financial Reporting
Monthly and quarterly close
Completely transition financial close as of March 31, 2008 SEC filings
SOX - maintenance of documentation and compliance
Coordination with outsourced functions and related vendors during transition,
including but not limited to
Payroll and treasury
Equity compensation
Internal audit/SOX compliance
SEC filers
Transition and maintenance of relationship with external auditors
Payroll and treasury function
Reassessment of banking relationships
Human resources
Liability and D&O Insurance
Investor relations
Office relocation from San Diego to Bay Area
C-1
