Exhibit 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN AMERICAN SOIL TECHNOLOGY, INC. AND XXXXXX XXXXXXXXX
This EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN AMERICAN SOIL TECHNOLOGY,
INC. AND Xxxxxx Xxxxxxxxx (this "Agreement"), effective as of January 4, 2003
(the "Effective Date"), is entered into by and between AMERICAN SOIL TECHNOLOGY,
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:
1. Employment. The Company hereby employs Employee as the Chief
Technical Advisor 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 Schedule 1, and Employee shall
perform all other duties and activities that are assigned to
Employee by the President of the Company. Employee shall
report directly to and be supervised by the President or his
designee.
2. 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.
3. 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 two 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 1-year increments unless written notice is given by
either party within 60 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."
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4. Compensation.
(a) 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 gross salary shall be a
credit against commissions received by Employee for sales to Gigot Agra
in the percentages as set forth below.
1. 6.5% on all ASTI products sold by Employee to Gigot Agra for
the years 2003 and 2004 as long as the products are sold at
the Company's published prices.
2. 5% thereafter as long as the products sold by Employee to
Gigot Agra are sold at the Company's published prices.
3. Commissions shall be deemed earned as of the date when the
Company receives the purchase price for a particular sale and
will be paid within fifteen (15) days of receipt of payment by
the Company.
4. There will be no discount to publish prices without express
written approval from the President of the Company.
(b) Sale Objectives. It is the Employee's sale objective to
sell to Gigot Agra at least $2 million of the Company's products in
2003 and 2004 and not less than $3 million in 2005, $5 million in 2006
and $7.5 million in 2007.
(c) 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.
5. 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 reimburse
Employee for all reasonable expenses other than those incurred on
behalf of Gigot Agra. Specifically the reimbursable or direct expenses
shall be as follows:
(a) Automobile expenses shall be limited to the IRS acceptable
rate of $0.365 per mile with mileage log backup and shall not
be paid by the Company for travel within the Gigot Agra
territory unless it consists of travel to and from an airport
for the purpose of traveling to a specific meeting on behalf
of the Company.
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(b) The Company will supply and pay for the service of one cell
phone.
(c) The Company will be responsible for one half the monthly
expense of the Internet and fax lines.
(d) The health insurance payments will be paid by the Company.
(e) Entertainment expenses on behalf of the Company will be
reimbursed by the Company.
(f) The Company will be responsible for the first 14 days of
expenses incurred during your next trip to Garden City,
Kansas.
(g) The Company will continue to pay $450.00 rental payment on the
Tucson facility for a period of three months commencing
January 1, 2003 or until you move to Garden City, whichever
first occurs.
(h) The Company will continue to pay the "New Holland Lease" for a
period of 60 days from January 1, 2003. An accounting will be
conducted to determine if the Company is entitled to any of
the proceeds if the equipment is sold in whole or in part.
6. 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.
7. 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 Schedule 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.
8. "Cause". For purposes of this Agreement, "Cause" shall mean the
occurrence of any one of the following events:
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(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) Fraud or dishonesty by Employee, in the good faith opinion of
the Board of Directors of the Company; or
(g) 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.
9. 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.
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10. "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"):
(a) 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);
(b) Employee shall die during the Term;
(c) Employee shall become disabled for a period of time at least
as long as the then remaining Term of this Agreement; or
(d) The Company shall materially breach any of its obligations
under this Agreement.
11. 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.
12. "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.
13. 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 including commissions on all paid purchase
orders placed by Gigot during employment (in addition to all other
benefits or compensation payable to Employee hereunder up to the date
of the termination).
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14. 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 Schedule 2. Any arbitration
will be held in Arizona before a single arbitrator.
15. Miscellaneous.
(a) All payments up to $75,000.00 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.
(b) 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 Executive Officer
of the Company at its legally registered address in California
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.
(c) This Agreement, together with Executive Employee
Confidentiality, Non-Competition and Invention Assignment
Agreement attached hereto as Schedule 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.
(d) 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.
(e) 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.
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(f) 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.
(g) 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.
(h) 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 TECHNOLOGY, INC., a
Nevada corporation
Date: January 18, 2003 By: /s/ Xxxx X. Xxxxx
---------------- ---------------------------------
Xxxx X. Xxxxx, President/CEO
Date: January 18, 2003 /s/ Xxxxxx Xxxxxxxxx
---------------- -------------------------------------
XXXXXX XXXXXXXXX, Employee
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Schedule 1
JOB DESCRIPTION
YOU WILL BE THE TECHNICAL ADVISOR TO THE COMPANY, YOU WILL WORK WITH THE
GOVERNMENT ON THE CANAL SEALING PROJECT AND HELP WITH THE FEDERAL AND STATE
CROSS-LINK POLYMER ACCEPTANCE. YOU WILL ALSO BE RESPONSIBLE FOR ALL SALES TO
GIGOT AGRA.
Schedule 2
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, 2003 (the
"Effective Date"), is entered into by and between AMERICAN SOIL TECHNOLOGY,
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
TECHNOLOGY, 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.
1. 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.
2. 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.
3. 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.
4. 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.
5. Non-Competition.
(a) Acknowledgement. Employee acknowledges that (i) the Company is
engaged in a variety of business endeavors (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,
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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.
(b) 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 License Agreement
entered into between Employee and Employer has been
terminated.
(i) "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 other than a Company
distributor.
(ii) 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.
(iii) 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. Employee shall
be permitted to accept employment with a distributor
of the Company and said employment shall not be a
breach of this "Covenant Not to Compete".
(c) 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.
6. 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
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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."
(a) This Agreement shall not diminish the effect or binding nature
of nay prior invention assignments made to the Company by
Employee.
(b) 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.
(c) 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.
7. 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.
8. 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.
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9. Employee Inventions. Attached as Schedule 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 Schedule 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 Schedule A. If there is nothing identified on Schedule A or
if "none" is indicated on Schedule 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.
10. 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.
11. 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:
(a) 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
(b) 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.
12. 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.
13. Employment Relationship. The employment relationship between Employee
and the Company is governed by the Employment Agreement and , as
applicable, this Agreement.
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14. Entire Agreement. This Agreement and the Employment Agreement to which
this Agreement is attached as a Schedule set forth the entire agreement
of the parties with respect to the subject matter hereof, and
supersedes all prior agreements, whether written or oral.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California, 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 California 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 California.
6
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 TECHNOLOGY, INC., a
Nevada Corporation
Date: January 18, 2003 By: /s/ Xxxx X. Xxxxx
---------------- -----------------------------
Xxxx X. Xxxxx, President/CEO
Date: January 18, 2003 /s/ Xxxxxx Xxxxxxxxx
---------------- -----------------------------
XXXXXX XXXXXXXXX, Employee
7
Schedule 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.
8
