Exhibit 10.4
April 28, 2005
Xxxxxx X. Xxxxxxx
00000 Xxxxxx Xxx
Xxxxx, XX. 00000
Re: Employment Agreement
Dear Xx. Xxxxxxx:
This employment agreement (this "Agreement") sets forth the terms and
conditions of your employment with World Waste Technologies, Inc. (the
"Company"). Unless otherwise set forth in this Agreement, you acknowledge that
your employment with the Company is "at-will".
Duties: You agree to serve the Company as its Chief Executive Officer.
You agree to perform such duties as are customarily performed
by chief executive officers of companies similar to the
Company and such other duties as are specified by the Board of
Directors. Notwithstanding the foregoing, you shall not take
any of the actions set forth on Schedule I hereto without
obtaining the prior written approval of the Board of
Directors. So long as you remain employed by the Company, you
will devote full time to, and use your best efforts to
advance, the business and welfare of the Company. You shall
report directly to the Board of Directors.
Status: Exempt.
Effective Date: April 28, 2005.
Base Salary: $224,000 per year payable biweekly and subject to payroll
deductions as may be necessary or customary in respect of the
Company's salaried employees in general.
Bonus: You shall be entitled to bonuses as deemed appropriate by the
Board of Directors. You shall also be entitled to participate
in all annual bonus, incentive, savings and retirement plans,
practices, policies and programs applicable generally to the
Company's executive officers, in each case at the discretion
of the Board of Directors.
Vacation: You shall be entitled to three (3) weeks paid vacation during
each 12-month period that you are employed by the Company
pursuant to the terms of this Agreement. Vacation shall accrue
biweekly on a pro-rata basis. Accrued vacation cannot exceed
six (6) weeks. Vacation shall not accrue in excess of six (6)
weeks. Any unused pro-rata portion of your annual paid
vacation shall be paid to you upon termination of employment
for any reason. It is understood that as of the date of this
Agreement you have three (3) weeks accrued.
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Severance: Upon the termination of this Agreement by the Company for
other than "good cause", or upon your resignation from the
Company for "good reason" and subject to you entering into a
severance agreement as per the terms and conditions hereof:
the Company shall, for a period of twelve (12) months, (a) pay
to you in monthly installments, as severance pay, your full
salary that you were receiving as of the time of termination
of this Agreement and (b) provide you the same level of
benefits you were receiving as of the time of termination of
this Agreement, unless otherwise required by law.
Benefits: You shall be entitled to such benefits provided by the Company
to its other executive officers.
Equity: You were previously granted 1,050,000 shares of common stock
and a warrant to acquire up to an additional 100,000 shares of
common stock. The terms of the foregoing equity grants shall
remain in effect provided, however that the terms and
definitions relating to Change in Control and Involuntary
Termination in the Company's 2004 Stock Option Plan shall also
apply to your warrant.
Termination Because of Disability. If, at the end of any calendar month during
the term of this Agreement, you are and have been for three (3) consecutive full
calendar months then ending, or for thirty percent (30%) or more of the normal
working days during the twelve (12) consecutive full calendar months then
ending, unable due to mental or physical illness or injury to perform duties
under this Agreement in the normal and regular manner, this Agreement may be
terminated by the Board of Directors; however, the salary provisions of this
Agreement shall continue for twelve (12) months thereafter.
Termination on Death. If you die during the term of this Agreement, the salary
provisions of this Agreement shall continue for twelve (12) months thereafter to
the benefit of your estate. The Company, will have the option of purchasing a
life insurance policy on you in an amount comparable to your annual salary and
payable to your estate.
Proprietary Information Agreement, Xxxxxxx Xxxxxxx Policy and Code of Ethics.
You will be required to sign and abide by the terms of the attached proprietary
information agreement, xxxxxxx xxxxxxx policy and code of ethics, which are
incorporated into this agreement by reference as Exhibit A, Exhibit B and
Exhibit C, respectively.
Termination for Good Cause. Your employment under this Agreement may be
terminated immediately by the Company for "good cause" upon ten (10) days
advance written notice specifying the reasons for such termination. You shall
have ten (10) days from the date such notice is given in which to cure such
cause (if and to the extent such cause is capable of being cured). Absent such
cure within the cure period, your employment shall be deemed terminated for good
cause on the expiration of such ten (10) day period. The term "good cause" is
defined as any one or more of the following occurrences:
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(I) Negligence or a material violation by you of any duty or any other
material or repetitive misconduct or failure on your part;
(II) Your conviction by, or entry of a plea of guilty or nolo contendere
in, a court of competent and final jurisdiction for any crime
punishable by imprisonment in the jurisdiction involved;
(III) Your commission of an act of fraud, prior to or subsequent to the
date of this Agreement, upon the Company; or
(IV) Failure to execute and deliver to the Company any document(s) as
requested by the Board of Directors and which are required by all
employees of the Company.
Resignation for Good Reason. You have the right to terminate your employment
under this Agreement in the event (i) there is a reduction in, or failure to
pay, your salary or any other payments or benefits due to you hereunder, after
receipt by the Company of written notice from you giving the Company at least 30
days in which to cure such reduction or failure; (ii) the Company commits a
material breach of any of the terms of this Agreement, provided that with
respect to any breach capable of being cured, only if such breach is not cured
within 30 days of receipt by the Company of written notice from you; (iii) the
Company has filed for bankruptcy or is adjudged insolvent or has failed to make
payments to creditors when due; (iv) you are required to perform services under
this Agreement at a location which is more than seventy-five (75) miles from the
your current principal work site (provided that you may from time to time be
required to travel temporarily to other locations); or(v) a material change in
your title or responsibilities as described in this Agreement. Any such
termination shall be referred to as a resignation for good reason.
Nothing in this section or the availability of termination by the Company
for good cause or your resignation for good reason is intended to alter the
at-will status of employment with the Company. Either you or the Company may
terminate the employment relationship at any time, with or without cause.
Your Consideration for Severance. As consideration for receiving severance pay
and benefits provided hereunder, during the period that you are receiving
severance pay or benefits hereunder, you shall:
(I) Consulting. Be available, on a reasonable basis, in person and/or by
telephone, as a consultant to the Company on projects or tasks as
defined by the Board of Directors or its designated representative.
(II) Non-Compete. For the period commencing on the date of this Agreement
and ending upon the date of the last severance payment hereunder,
you shall not without written permission from the Board of
Directors, directly or indirectly, as employee, agent, consultant,
stockholder, director, partner or in any other individual or
representative capacity, own, operate, manage, control, engage in,
invest in or participate in any manner in, act as a consultant or
advisor to, render services for (alone or in association with any
person, firm, corporation or entity), or otherwise assist, for
compensation or otherwise, any person or entity that engages in or
owns, invests in, operates, manages or controls any venture or
enterprise that is a direct competitor of the Company; provided,
however, that nothing contained in this Agreement shall be construed
to prevent you from investing in the stock of any competing
corporation listed on a national securities exchange or traded in
the over-the-counter market, but only if: (1) you are not involved
in the business of said corporation, and (2) if you and your
affiliates collectively do not own more than an aggregate of 5% of
the stock of such corporation, and (3) such investment does not
violate the Company's Xxxxxxx Xxxxxxx Policy.
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(III) Non-Solicitation. Not interfere with or disrupt or attempt to
disrupt the Company's business relationship with its customers or
suppliers or solicit any of the employees of the Company to leave
the employment of the Company.
(IV) Severance Agreement. Enter into a severance agreement and general
release with the Company within 90 (ninety) days from date of
termination notice.
Arbitration. You and the Company agree that any dispute arising under or in
connection with this Agreement, including any dispute involving your employment
or the termination of that employment (whether based on contract, tort or
statutory duty or prohibition, including any prohibition against discrimination
or harassment), shall be submitted to binding arbitration in accordance with
California Code of Civil Procedure xx.xx. 1280 - 1294.2 before a single neutral
arbitrator. You and the Company understand that each is waiving its rights to a
jury trial.
The party demanding arbitration shall submit a written claim to the other
party setting out the basis of the claim. Demands shall be presented in the same
manner as notices under this Agreement. You and the Company will attempt to
reach agreement on an arbitrator within ten (10) business days of delivery of
the arbitration demand. After this ten (10) business day period, either you or
the Company may request a list of seven professional arbitrators from the
American Arbitration Association or another mutually agreed service. You and the
Company will alternately strike names until only one person remains and that
person shall be designated as the arbitrator. The party demanding arbitration
shall make the first strike.
The arbitration shall take place in or within five miles of San Diego,
California, at a time and place determined by the arbitrator. Each party shall
be entitled to discovery of essential documents and witnesses and to deposition
discovery, as determined by the arbitrator, taking into account the mutual
desire to have a fast, cost-effective, dispute-resolution mechanism. You and the
Company will attempt to cooperate in the discovery process before seeking the
determination of the arbitrator. Except as otherwise determined by the
arbitrator, you and the Company will each be limited to no more than three (3)
depositions. The arbitrator shall have the powers provided in California Code of
Civil Procedure xx.xx. 1282.2 - 1284.2 and may provide all appropriate remedies
at law or equity.
The arbitrator will have the authority to entertain a motion to dismiss
and/or a motion for summary judgment by either you or the Company and shall
apply the standards governing such motions under California law, unless the
standards of another judicial forum supercede California law. The Arbitrator
shall render, within sixty (60) days of the completion of the arbitration, an
award and a written, reasoned opinion in support of that award. Judgment on the
award may be entered in any court having jurisdiction.
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The Company will pay the arbitrator's expenses and fees, all meeting room
charges and any other expenses that would not have been incurred if the case
were litigated in the judicial forum having jurisdiction over it. Unless
otherwise ordered by the arbitrator pursuant to law or this Agreement, each
party shall pay its own attorney fees, witness fees and other expenses incurred
by the party for his or her own benefit. Your share of any filing,
administration or similar fee shall be no more than the then current filing or
other applicable fee in California Superior Court or, if applicable, other
appropriate tribunal with jurisdiction.
Modification and Waiver of Breach. No waiver or modification of this Agreement
shall be binding unless it is in writing signed by you and the Company. No
waiver of a breach of this Agreement shall be deemed to constitute a waiver of a
future breach, whether of a similar or dissimilar nature.
Notices. All notices and other communications required or permitted under this
Agreement shall be in writing, served personally on, or mailed by nationally
recognized express mail courier. Notices and other communications served by
express mail courier shall be deemed given 72 hours after deposit with such
express mail courier duly addressed to whom such notice or communication is to
be given. In the case of (a) the Company, 00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: CFO, or (b) to you, at the address of
record provided by you to the Company. Either party may change their address for
purposes of this Section by giving written notice, in the manner stated herein.
You agree to promptly update the Company with any changes to your contact
information.
Counterparts and Facsimile Signatures. This instrument may be executed in
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same Agreement. The parties agree that a
signature delivered by facsimile transmission will be treated in all respects as
having the same effect as an original signature.
Construction of Agreement. This Agreement shall be construed in accordance with,
and governed by, the internal laws of the State of California and both parties
irrevocably agree to the exclusive jurisdiction and venue of the state and local
courts of San Diego County, California.
Legal Fees. If any legal action, arbitration or other proceeding is brought for
the enforcement of this Agreement, or because of any alleged dispute, breach,
default or misrepresentation in connection with this Agreement, the successful
or prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs it incurred in that action or proceeding, in addition to any other
relief to which it may be entitled.
Severability Clause. If any provision of this Agreement or the application
thereof is held invalid, the invalidity shall not affect other provisions or
applications of the Agreement which can be given effect without the invalid
provisions or applications and to this end the provisions of this Agreement are
declared to be severable.
Complete Agreement. This instrument constitutes and contains the entire
agreement and understanding concerning your employment and the other subject
matters addressed in this Agreement between you and the Company, and supersedes
and replaces all prior negotiations and all agreements proposed or otherwise,
whether written or oral, concerning the subject matters hereof, including but
not limited to that certain Employment Contract, dated as of January 20, 2003,
between you and World Waste of America, Inc. This is an integrated document.
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Third Party Beneficiaries. This Agreement does not create, and shall not be
construed as creating, any rights enforceable by any person not a party to this
Agreement, except as expressly contemplated herein.
Non-transferability of Interest. None of your rights to receive any form of
compensation payable pursuant to this Agreement shall be assignable or
transferable except through a testamentary disposition or by the laws of descent
and distribution upon your death. Any attempted assignment, transfer,
conveyance, or other disposition (other than as set forth herein) of any
interest in your rights to receive any form of compensation to be made by the
Company pursuant to this Agreement shall be void.
Other Agreements. A condition of your continued employment with the Company is a
signed Confidentiality, Non-Disclosure and Employee Invention Agreement. Your
failure to complete this document in a timely manner may result in your
termination for good cause. You also understand and agree that, except as
expressly provided in this Agreement, you are subject to all of the Company's
general business and human resources polices and procedures as they presently
exist or as they may exist in the future and failure to abide by such provisions
may result in your termination for good cause, provided, however, that the
at-will status of employment may only be changed as provided below.
At-Will. By signing this letter, you understand and agree that your employment
with the Company is "at-will." Your employment with the Company is voluntarily
entered into and we recognize you are free to resign at any time. Similarly, it
is recognized that the Company is free to conclude an employment relationship at
any time we feel is appropriate. While other terms of your employment may change
with or without notice, this at-will relationship can be changed only in a
written agreement signed by you and an authorized officer of the Company.
Sincerely,
_____________________________________
Acceptance:
_____________________________________
Xxxxxx X. Xxxxxxx
Date: _______________________________
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AGREEMENT OF AT WILL EMPLOYMENT
I understand and agree that my employment with the Company is on an
at-will basis. This means that either the Company or I or may terminate the
employment relationship at any time at its or his sole discretion without cause.
I further understand that while other personnel policies, procedures, and
benefits of the Company may change from time to time in the Company's
discretion, this at-will employment relationship can only be changed by an
express written employment agreement signed by me and a duly authorized officer
of the Company.
_____________________________________
Employee Name (PRINT)
_____________________________________
Employee Signature
Date: _______________________________
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Schedule I
Activities Prohibited Without Board of Director Approval
1. Borrowing or obtaining credit, other than trade credit in the ordinary
course of business, or executing any guaranty, other than trade guarantees
in the ordinary course of business;
2. Expending funds for major piece of capital equipment in excess of One
Million Dollars ($1,000,000);
3. Selling or transferring capital assets exceeding One Million Dollars
($1,000,000) in market value;
4. Executing any contract or making any commitment for the purchase or sale
of the Company's products or facilities in an amount exceeding One Million
Dollars ($1,000,000); or outside the ordinary course of business;
5. Executing any lease of real or personal property providing for an annual
rent in excess of One Hundred Thousand Dollars ($100,000), or term greater
than five (5) years;
6. Exercising any discretionary authority or control over the management of
any employee welfare or pension benefit plan or over the disposition of
the assets of any such plan;
7. Hiring or firing any employee with annual compensation exceeding One
Hundred Thousand Dollars ($100,000).
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