Exhibit 10.3
EMPLOYMENT AGREEMENT
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This Agreement is effective as of December 1, 1997 by and between Bion
Environmental Technologies, Inc. ("Company") and M. Xxxxx Xxxxxxxx
("Employee").
Company and Employee agree that, in order to preserve cash for operations
of the Company, $90,000 of the salary in Paragraph 3 of this Agreement will be
paid in cash according to the other terms of Paragraph 3, and the remaining
$30,000 shall be accrued until such time as sufficient cash is available for
payment.
WHEREAS, Employee acts as an officer and director of the Company; and
WHEREAS, the Company desires to continue to retain the services of
Employee as an employee upon the conditions contained in this Agreement; and
WHEREAS, Employee desires to provide services to the Company under such
conditions;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, the Company does hereby agree to engage Employee and
Employee does hereby agree to be engaged by the Company, upon the terms and
conditions set forth in the following paragraphs:
1. Employment Period. The Company hereby engages Employee for the
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period commending December 1, 1997 and ending December 31, 2002 ("Employment
Period") to serve as Chief Financial Officer for the Company and to render
such other services in an executive capacity as the Company shall reasonably
require. Employee hereby agrees to remain in the employ of the Company for
the Employment Period, subject to the provisions of this Agreement. Employee
may terminate his employment with the Company upon 90 days written notice to
the Company, in which case this Agreement shall terminate without liability
one to the other upon the date specified by Employee.
2. Duties. Employee agrees that at all times during the Employment
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Period he will faithfully and diligently endeavor to promote the business and
business interests of the Company. This Agreement shall not restrict Employee
from engaging, directly or indirectly, in any business or activity which is
not competitive with the business of the Company; provided, however, that such
additional business or activity does not interfere with nor is inconsistent
with the performance by the Employee of his duties under this Agreement.
3. Salary and Benefits. Subject to the provisions of this
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Agreement, during the Employment Period, Employee shall be compensated as
follows:
a.) Employee shall earn a salary of $120,000 per annum, payable in
monthly installments, subject to customary payroll deductions for Federal,
State, and local taxes and to such other deductions as are required by law or
by mutual agreement of the Company and Employee.
b.) The Board of Directors of the Company will review Employee's
salary no less than once per year with a view to making such increases in
Employee's salary or declaring such bonuses or other benefits as may be
merited and warranted in light of factors considered pertinent by the Board of
Directors.
c.) Employee shall receive free of cost parking for his automobile;
health, hospitalization and life insurance with coverage exceeding or equal to
that now in force through the Company; as well as such other benefits as the
Board may deem appropriate from time to time.
d.) Employee shall be entitled to four weeks vacation per year to be
taken at such times as do not interfere with the performance of his duties
hereunder.
4. Expenses. All reasonable and necessary expenses incurred by
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Employee in the performance of his duties under this Agreement, including but
not limited to expenses for entertainment, travel, and similar items, shall be
paid or reimbursed no less than monthly by the Company upon receipt of
appropriate documentation of such expenses. Company shall provide, at its
expense, Employee with office space as necessary and secretarial, legal,
accounting, and other services as may be necessary to properly support
Employee's performance of his duties and to operate in the best interests of
the Company.
5. Disability of Employee. In the event of the disability of
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Employee (as defined herein) prior to the expiration of the Employment Period,
Employee shall nevertheless continue to be compensated at his then designated
annual rate and with such benefits provided for in Paragraph 3 hereof for a
period of twelve months from the date of disability. For purposes of this
Agreement, Employee shall be deemed to be fully disabled if, because of
illness or other physical or mental condition, he is unable to fully perform
all of his duties under this Agreement for two successive months. In the
event that he is unable to perform all or a portion of the duties required
under this Agreement for short periods of time aggregating over two months in
any twelve successive calendar months, he shall be deemed to be partially
disabled. The compensation and benefit period shall run from the time
disability commenced until Employee's condition improves sufficiently to
permit him to fully perform his duties, after which date he must be available
at the Company's option. The Company may require such evidence of disability
as it deems appropriate.
6. Termination Upon Death and Disability. The Employment Period
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shall automatically terminate upon the death of Employee; provided, however,
that in the event of the Employee's death, all compensation Employee is
receiving under Paragraph 3 of this Agreement at the time of his death shall
be paid to his legal representative for a period of six months following the
date of Employee's death or the remainder of the Employment Period, whichever
occurs first. At the discretion of the Board of Directors, the Employment
Period may terminate upon the Disability of Employee (as defined in Paragraph
5 above); provided, however, that Employee shall continue to receive
compensation in accordance with Paragraph 5 above.
7. Termination for Cause. Upon the occurrence of any of the events
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listed below, the Company may terminate the Employee without further
obligation under this Agreement:
a.) Employee's conviction of any criminal act directly related to
Employee's duties hereunder including, without limitation, misappropriation of
funds or property of the Company or any other felony criminal act.
b.) Employee's misfeasance or malfeasance in office, which shall mean
fraud, dishonesty, willful misconduct or gross neglect of duties.
c.) Breach by Employee of any material provision of this Agreement.
8. Termination Without Cause. In the event Employee is terminated
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by the Company for any reason, except as set forth in Paragraph 7 above, he
shall continue to be compensated for the duration of the Employment Period or
twelve months, whichever occurs first, as provided for in Paragraphs 3, 4, 5,
and 6 hereof.
9. Termination Upon Change in Management. In the event that a
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change in control of the Company shall occur at any time during the Employment
Period, as a result of which the Board of Directors appoints a person other
than Employee to serve in the capacity for which Employee is employed
hereunder or as a result of which Employee shall elect to resign his executive
position hereunder, Employee nevertheless shall be entitled to the benefits of
and subject to all of the terms and conditions set forth herein, including,
without limitation, the right to receive compensation and benefits as provided
in Paragraphs 3, 4, 5, and 6 hereof for the remainder of the Employment Period
regardless of whether Employee continues to perform any services for the
Company.
10. Vesting in the Event of Termination. In the event that the
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Employee is terminated upon death or disability (Paragraph 6), terminated
without cause (Paragraph 8), or terminated upon change in management
(Paragraph 9), all warrants, options, or shares issued but unvested at the
date of termination shall become fully vested as of the date of termination.
11. Parties in Interest. This Agreement shall be binding upon and shall
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inure to the benefit of the Company and its successors and assigns and any
person acquiring, whether by merger, consolidation, liquidation, purchase of
assets or otherwise, all or substantially all of the Company's equity or
assets and business.
12. Choice of Law. It is the intention of the parties hereto that
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this Agreement and the performance hereunder and all suits and special
proceedings connected herewith be construed in accordance with and pursuant to
the laws of the State of Colorado and that in any action, special proceeding
or other proceeding that may be brought arising out of, in connection with, or
by reason of this Agreement, the laws of the State of Colorado shall be
applicable and shall govern to the exclusion of the law of any other forum,
without regard to the jurisdiction in which any action or special proceeding
may be instituted.
13. Severance of Invalid Provisions. In the event that any one or
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more of the provisions of this Agreement or any portion thereunder is
determined to be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
14. Integrated Agreement. This Agreement shall constitute the entire
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agreement between the parties hereto relating to the employment of Employee.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
on its behalf by its duly authorized officer and Employee has executed this
Agreement, effective as of the date and year first above written.
Bion Environmental Technologies, Inc.
By: /s/ Xxx Xxxxxxxx
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Authorized Officer
EMPLOYEE
/s/ M. Xxxxx Xxxxxxxx
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M. Xxxxx Xxxxxxxx
