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EXHIBIT 6.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as
of the 1st day of August, 2000 by and between INTERGLOBAL WASTE MANAGEMENT,
INC., a California corporation (the "Company"), and Xxxxxxx Xxxxxxxxx, an
individual residing in the State of California (the "Employee").
BACKGROUND
WHEREAS, the Company is desirous of retaining the Employee to serve as
Chief Compliance Officer of the Company, and
WHEREAS, the Employee and the Company desire to enter into this
Agreement to formalize the terms and conditions of the Employee's relationship
with the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
promises, representations, warranties and covenants set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
SECTION 1
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings unless the context specifically requires otherwise.
1.01 "Affiliate" means any subsidiary of the Company (whether wholly
owned or not, but not any entity of which the Company owns less than 15% of the
outstanding equity interest), any entity under substantially similar ownership
with the Company, any entities with which the Company has entered into a
partnership or joint venture, or any entities with which the Company has entered
into a Licensing Agreement.
1.02 "Business" shall mean (a) the Company's present businesses, which
consist of the manufacture, sale, distribution, licensing and marketing of waste
water treatment systems, and instruments and services related thereto; and of
measurement devices and controls and services related thereto; and (b) any other
future business activities of the Company during the term of the Employee's
services to the Company.
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1.03 "Cause" shall mean any of the following:
(a) The conviction of the Employee of a felony or a crime involving
moral turpitude under any state or federal law (or the entry of a plea of guilty
or no contest by the Employee with respect thereto);
(b) Any failure by the Employee to fulfill, in any material respect, his
duties and responsibilities (other than by reason of death or Disability, as
defined below) as set out in Sections 2.01 and 2.03 for a period of thirty days
after receipt of written notice of such failure from the Company to the
Employee;
(c) The failure or refusal of the Employee to adhere to any established
lawful policy of the Company for a period of thirty days after receipt of
written notice of such failure or refusal from the Company to the Employee;
(d) The commission by the Employee of any fraud, embezzlement,
misappropriation of funds, breach of fiduciary duty or other act of dishonesty
against the Company; or
(e) Any material breach by the Employee of his obligations under Section
4 or Section 6 of this Agreement.
1.04 "Compete" or "Competing" shall mean entering into or attempting to
enter into any business which competes with the Business, either alone or with
any individual, partnership, corporation or association.
1.05 "Directly or Indirectly" as they modify the word "Compete" shall
mean: (i) acting in a management or oversight capacity as an agent,
representative, consultant, officer, director, independent contractor or
employee of any entity or enterprise which is Competing (as defined in Section
1.03) with the Business; (ii) participating in any material management or
oversight role in any such Competing entity or enterprise as an owner, partner,
limited partner, joint venturer, creditor or stockholder (except as a
stockholder owning less than a two percent interest in a corporation whose
shares are actively traded on a national securities exchange or in the over-the
counter market); and (iii) communicating to any such Competing entity or
enterprise the names or addresses or any other information concerning any past,
present or identified prospective client, customer, joint venture partner,
supplier or acquisition or investment targets of the Company (provided that this
provision shall not apply to any information that is not "Confidential
Information," as such term is defined in Section 4.2 (a) of this Agreement).
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1.06 "Disability" shall mean the Employee's inability to perform his
duties, obligations and responsibilities under this Agreement by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve (12) months.
1.07 "Territory" shall mean all countries in which the Company, or its
affiliates are conducting business, or actively preparing to conduct business at
any time during the covenant period provided in Section 4.
SECTION 2
EMPLOYMENT
2.01 Position. Upon the terms and conditions set forth in this
Agreement, the Company agrees to employ Employee in the capacity of Chief
Compliance Officer of the Company, and the Employee accepts such employment. In
such capacity his rights, duties and responsibilities shall be as prescribed
from time to time by the Company's Chief Executive Officer and the Board of
Directors of the Company.
2.02 Terms of Employment. The term of Employee's employment shall be for
a period of two (2) years commencing on the date of this Agreement, unless
earlier terminated pursuant to Section 5.01.
2.03 Duties.
(a) The Employee shall devote his entire working time, attention and
energy during normal working hours to the affairs of the Business during the
term of his employment pursuant to this Agreement. The Employee shall perform
his duties to the best of his ability, pursuant to the policies and regulations
of the Company, and its affiliates, and shall use his best efforts to promote
the success of the present and future businesses of the Company, and its
affiliates (including, without limitation, the Business).
(b) During the term of this Agreement, the Employee shall not engage in
any other business activity or occupation; provided, however, the foregoing
shall not prevent the Employee from passively investing in, trading or selling
stocks, bonds, securities or other interests of any corporation, partnership or
entity, or from managing real estate owned by such Employee, so long as such
activities do not interfere with the performance of his duties hereunder.
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SECTION 3
COMPENSATION AND RELATED MATTERS
3.01 Compensation.
(a) The Employee will receive a base salary from the Company for his
services under this Agreement of $150,000 per year, payable in accordance with
the Company's payroll practices. Such salary may be increased from time to time
by the Company's Board of Directors based upon the performance by the Employee
of his duties hereunder and the financial performance of the Company.
(b) The Employee shall be granted options to purchase stock pursuant to
the milestones and amounts set forth on Exhibit A hereto.
3.02 Benefits. The Employee will, at all times during his employment
with the Company, be entitled to participate in all routine employee benefits
maintained by the Company for its other similarly situated employees. The
Employee shall be entitled to long term disability benefits on a basis
consistent with the historic benefits of the Company. The Employee shall also be
entitled to be reimbursed for reasonable travel and business expenses incurred
in connection with the performance of his duties set forth herein upon the
presentation to the Company of appropriate documentation.
3.03 Vacation. The Employee shall be entitled to fifteen (15) workdays
of vacation with pay during each twelve (12) month period of employment under
this Agreement. The Employee shall be entitled to carry forward up to five (5)
unused vacation days from one twelve month period for use during the immediately
succeeding twelve (12) month period in addition to the fifteen (15) vacation
days provided for such period pursuant to the preceding sentence. The Employee
shall not be entitled to receive any compensation in lieu of such vacation days,
whether or not used during the applicable periods.
SECTION 4
ACKNOWLEDGEMENT OR TRADE SECRETS AND NON-DISCLOSURE
4.01 Scope and Reasonableness. The Employee acknowledges that the
Company has a present and future expectation of operations and generating
revenues within the Territory and that, in his capacity with the Company, the
Employee will have important duties and responsibilities with respect to the
Business in the Territory. The Employee agrees that he is being employed
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hereunder in a key management capacity with the Company, that the Company is
engaged in a highly competitive business and that the success of the Company's
business in the marketplace depends upon its goodwill and reputation for quality
and dependability. The Employee further agrees that reasonable limits may be
placed on his ability to compete against the Company as provided herein so as to
protect and preserve the legitimate business interest and goodwill of the
Company.
4.02 Confidentiality and Trade Secrets.
(a) The Employee acknowledges and agrees that his future position as an
employee of the Company will afford him a unique opportunity to acquire
confidential information concerning the Company, and its affiliates and that the
misappropriation or disclosure of such confidential information would cause
irreparable harm to the Company, or its affiliates. The Employee recognizes and
agrees that he will have access to certain confidential information of the
Company, and its affiliates, which is not generally available to the public and
that such information constitutes valuable, special and unique property of the
Company, and its affiliates. The Employee acknowledges that such confidential
information includes information concerning the Business, the Company, and its
affiliates, including without limitation financial information concerning the
Business, the Company, or its affiliates, the names and addresses of actual and
potential customers or acquisition or investment targets of the Business or the
Company, studies of prospective market areas for the Business, supply sources,
products, technical data, ideas, processes, and trade secrets of the Business
and the Company (such information whether related to the Business, the Company,
or its affiliates being referred to collectively as the "Confidential
Information"). Confidential Information shall not include any information or
documents (i) that are or become publicly available without breach of this
Section 4.02 or (ii) that the Employee rightfully receives from any third party
which is not breaching an obligation of confidence with the Company, or its
affiliates or without an accompanying obligation of confidence. In the event
that the Employee is requested in any court or governmental proceeding to
disclose any Confidential Information, the Employee shall give the Company and
its affiliates prompt notice of such request such that the Company and its
affiliates may seek a protective order or other appropriate relief and shall
cooperate in all respects with the Company in its efforts in connection
therewith.
(b) The Employee will keep confidential and will not, during his
employment and for a period of three (3) years after any termination under this
Agreement (whether by expiration or pursuant to Section 5.01 or otherwise),
directly or indirectly, divulge to anyone, use or otherwise appropriate any of
the Confidential Information for any reason or purpose whatsoever except to
authorized representatives of the Company, or its affiliates or when, in the
good
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faith belief of the Employee, such disclosure is necessary in the normal course
of the Business in order for the Employee to fulfill his duties and
responsibilities to the Company as set out in Sections 2.01 and 2.03.
(c) With respect to any trade secrets included in the Confidential
Information, the Employee also agrees not to use or disclose any of such trade
secrets at any time during or after his employment under this Agreement until
such trade secrets become generally available to the public by independent
discovery or development and publication through no fault of the Employee. The
Employee acknowledges and agrees that these prohibitions against disclosure of
Confidential Information are in addition to, and not in lieu of, any rights or
remedies which the Company, or its affiliates may have available pursuant to the
laws of any jurisdiction or at common law to prevent the disclosure of trade
secrets or proprietary information, and the enforcement by the Company, or its
affiliates of any of their rights and remedies pursuant to this Agreement shall
not be construed as a waiver of any other rights or available remedies which
they may possess in law or equity absent this Agreement.
(d) Upon any termination of his employment under this Agreement, the
Employee shall surrender to the Company all documents in his possession, custody
or control embodying the Confidential Information or any part thereof.
4.03 Remedies. The Employee acknowledges that any violation of this
Section 4 will cause irreparable harm to the Company and that damages are not an
adequate remedy. The Employee therefore agrees that the Company shall be
entitled to seek and obtain an injunction and obtain enjoining, prohibiting and
restraining the Employee from the continuance of any such violation, in addition
to any monetary damages which might occur by reason of a violation of this
Agreement or any other remedies at law or in equity, including without
limitation specific performance, and that in any such action, the Employee will
not raise as a defense the argument that an adequate remedy for such breach
exists at law.
4.04 Independent. The covenants set forth in the foregoing Sections of
this Section 4 are and shall be deemed and construed as separate and independent
covenants. Should any part or provision of such covenants be held invalid, void
or unenforceable in any court of competent jurisdiction, such invalidity,
voidness or unenforceability shall not render invalid, void or unenforceable any
other part or provision thereof. Specifically, and without limiting the
generality of the foregoing, if any portion of Sections 4.01, 4.02, or 4.03 is
found to be invalid by a court of competent jurisdiction because its duration,
Territory and/or the Business are invalid or unreasonable in scope, such
duration, Territory and/or Business, as the case may be, shall be redefined by
consideration of the reasonable concerns and needs of the Company such that the
intent of the Company and the Employee,
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in agreeing to Sections 4.01, 4.02 and 4.03, will not be impaired and shall be
enforceable to the fullest extent of the applicable laws.
SECTION 5
TERMINATION
5.01 Termination. The Employee's employment under this Agreement may be
terminated prior to its expiration: (i) by the Company with or without Cause or
upon the Disability of the Employee, by giving written notice to the Employee
(or his personal or legal representative, as the case may be), specifying such
Cause or Disability, if applicable; (ii) by the Employee voluntarily, by giving
sixty (60) days' written notice to the Company. The effective date of any such
termination shall be that specified in such notice or the date of the Employee's
death, as the case may be.
5.02 Payment on Termination. If the Employee is terminated pursuant to
Section 5.01, the Company shall pay the Employee his salary prorated through the
effective date of such termination, but the Employee shall be entitled to any
benefits payable under disability and life insurance programs maintained by the
Company. If the Employee's employment is terminated by the Company, other than
(a) for Cause, (b) upon Disability or (c) upon the Employee's death, then the
Employee shall be entitled to a severance allowance equal to his then-current
base salary for six (6) months, payable in accordance with the Company's payroll
practices; provided, however, that if the effective date of termination is more
than two (2) years following the date of this Agreement, such severance
allowance shall be reduced by the amount, if any, that the Employee earns as an
employee or a consultant from any individual or entity during the six (6) months
following the effective date of termination of employment, the parties
acknowledging that the Employee shall have no obligation to seek new employment
after any such termination. The Employee shall not be entitled to any severance
allowance from the Company in the event of termination of the Employee's
employment by the Company (a) for Cause, (b) upon Disability, (c) upon the
Employee's death or (d) upon expiration of the term of this Agreement. Payment
of severance under this Section 5.02 shall constitute liquidated damages and the
sole and exclusive remedy available to the Employee upon termination of his
employment for any and all claims the Employee may have against the Company, its
directors, its officers and controlling persons.
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SECTION 6
INVENTIONS
6.01 Inventions. If at any time or times during the Employee's
employment, he shall (either alone or with others) make, conceive, discover,
reduce to practice or become possessed of any invention, modification,
discovery, design, development, improvement, process, formula, data, technique,
know-how, secret or intellectual property right whatsoever or any interest
therein (whether or not patentable or registerable under copyright or similar
statutes or subject to analogous protection) (herein called "Inventions") that
relates to the Business or any of the products or services being developed,
manufactured or sold by the Company, or its affiliates, such Inventions and the
benefits thereof shall immediately become the sole and absolute property of the
Company, or its affiliates, as the case may be, and the Employee shall promptly
disclose to the Company (or any persons designated by it) each such Invention
and assign any rights he may have or acquire in the Inventions and benefits
and/or rights resulting therefrom to the Company without compensation and shall
communicate, without cost or delay, and without publishing the same, all
available information relating thereto (with all necessary plans and models) to
the Company (or any persons designated by it).
6.02 Assistance by the Employee. Upon disclosure of each Invention to
the Company, during the Employee's employment and at any time thereafter, the
Employee will, at the request and sole cost and expense of the Company, sign,
execute, make and do all such deeds, documents, acts and things as the Company
and its duly authorized agents may reasonably require
(a) To apply for, obtain and vest in the name of the Company alone
(unless the Company otherwise directs) letters patent, copyrights or
other analogous protection in any country throughout the world and when
so obtained or vested to renew and restore the same; and
(b) To defend any opposition proceedings in respect of such applications
and any opposition proceedings or petitions or applications for
revocation of such letters patent, copyright or other analogous
protection.
In the event the Company is unable, after reasonable effort, to secure
the Employee's signature on any letters patent, copyright or other analogous
protection relating to an Invention, whether because of his physical or mental
incapacity or for any other reason whatsoever, the Employee hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents
as his agent and attorney-in-fact, to act for and in his behalf and stead to
execute
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and file any such application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent,
copyright or other analogous protection thereon with the same legal force and
effect as if executed by the Employee. In the event that the Employee is
requested to provide assistance after termination of employment, the Company
will reimburse the Employee for the reasonable costs and expenses of providing
such assistance.
6.03 Injunctive Relief. The Employee agrees that any breach of this
Agreement by him could cause irreparable damage and that in the event of such
breach the Company may, in addition to any and all remedies of law, seek and
obtain an injunction, specific performance or other equitable relief to prevent
the violation of the Employee's obligations hereunder and that in any such
action the Employee shall not raise as a defense the argument that an adequate
remedy at law exists for such breach.
6.04 Excluded Inventions. The Employee represents that the Inventions
identified in the pages, if any, attached hereto comprise all the Inventions
which he has made or conceived prior to his employment by the Company, which
Inventions are excluded from this Agreement. The Employee understands that it is
only necessary to list the title of such Inventions and the purpose thereof but
not details of the Invention itself. IF THERE ARE ANY SUCH UNPATENTED INVENTIONS
TO BE EXCLUDED, THE EMPLOYEE SHOULD INITIAL HERE. OTHERWISE IT WILL BE DEEMED
THAT THERE ARE NO SUCH EXCLUSIONS.
The Employee further represents that his performance of all the terms of
this Agreement does not and will not breach any agreement to keep in confidence
proprietary information acquired by him in confidence or in trust prior to his
employment by the Company. The Employee has not entered into, and will not enter
into, any agreement either written or oral in conflict herewith.
SECTION 7
MISCELLANEOUS
7.01 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
7.02 Entire Agreement; Amendments. This Agreement contains the entire
agreement between the Company and the Employee with respect to his employment
with the Company and supersedes all prior agreements relating to the same
subject matter, including any prior employment agreement between the Employee
and the Company, or any of is affiliates. This Agreement cannot be
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amended, changed or supplemented except in writing signed by the parties or
their duly authorized agents or attorneys in fact.
7.03 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, executors,
administrators, successors and permitted assigns.
7.04 Assignment. This Agreement is nonassignable except that the
Company's rights, duties and obligations under this Agreement may be assigned
and delegated to any subsidiary or affiliate of the Company or to the acquirer
of the Company in the event it is merged, acquired, sells substantially all of
its interest in it assets or the Business or transfers its interest in the
Business to any other entity.
7.05 Severability. If any one or more of the provisions of this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and the remaining provisions of this Agreement
shall not in any way be impaired.
7.06 Notices. All notices, requests, demands and other communications
under or in connection with this Agreement shall be in writing, shall be sent by
registered or certified mail, return receipt requested and shall be deemed to
have been given or made when received at the following offices:
If to the Company: Interglobal Waste Management, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to the Employee: ________________________________________
________________________________________
________________________________________
Facsimile No.(___) _____________________
With a copy to: ________________________________________
________________________________________
________________________________________
Attention: _____________________________
Facsimile No.(___) _____________________
The above addresses may be change by written notice given as above
provided.
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7.07 Consent to Jurisdiction. Each of the Company and the Employee, by
its or his execution hereof, (i) hereby irrevocably submits to the exclusive
jurisdiction of the state and Federal courts located within Ventura County,
State of California for the purpose of any claim or action arising out of or
based upon this Agreement or relating to the subject matter hereof, (ii) hereby
waives, to the extent not prohibited by applicable law, and agrees not to assert
by way of motion, as a defense or otherwise, in any such claim or action, any
claim that is not subject personally to the jurisdiction of the above-named
courts, that its or his properly is exempt or immune from attachment or
execution, that any such proceeding brought in the above-named court is
improper, or that this Agreement or the subject matter hereof may not be
enforced in or by such court, and (iii) hereby agrees not to commence any claim
or action arising out of or based upon this Agreement or relating to the subject
matter hereof other than before the above-named courts nor to make any motion or
take any other action seeking or intending to cause the transfer or removal of
any such claim or action to any court other than the above-named courts whether
on the grounds of inconvenient forum or otherwise. Each of the Company and the
Employee hereby consents to service of process in any such proceeding in any
manner permitted by California law, and agrees that service of process by
registered or certified mail, return receipt requested, at its address specified
pursuant to Section 7.06 hereof is reasonably calculated to give actual notice.
7.08 Binding Arbitration of Disputes. Any dispute between the parties
hereto, whether arising out of contract, tort or otherwise, or law, equity or
otherwise, shall be submitted to binding arbitration before the American
Arbitration Association in Ventura County, California under the rules relating
to commercial arbitrations. Each party to any such dispute shall be entitled to
serve one set of pre-arbitration requests for production of documents,
containing not more that ten categories of documents to be produced, which shall
be described with particularity therein, and shall be entitled to notice and
take no more than two pre-arbitration depositions. Any disputes relating to such
pre-arbitration discovery shall be submitted to the arbitrator.
7.09 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will take effect as an original and all of which
will evidence one and the same agreement.
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7.10 Pronouns. All pronouns used herein shall be deemed to refer to the
masculine, feminine or neuter gender as the context requires.
IN WITNESS WHEREOF this Agreement has been executed by the parties as an
instrument under seal as of the date first appearing above.
THE COMPANY:
INTERGLOBAL WASTE MANAGEMENT, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Chairman
EMPLOYEE:
By: /s/ XXXXXXX XXXXXXXXX
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Xxxxxxx Xxxxxxxxx
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