EMPLOYMENT AGREEMENT (Thomas W. Maher)
(Xxxxxx
X. Xxxxx)
THIS
EMPLOYMENT AGREEMENT
(the
“Agreement”), effective as of December 1, 2006 (“Effective
Date”)
is
entered into by and between Xxxxxx X. Xxxxx, having an address at 000 Xxxxx
Xxx
Xxxx, Xxxxx Xxxxx, XX 00000 (“Employee”), and Ethos Environmental, Inc., a
Nevada Corporation (“Company” or “Ethos”).
RECITALS
WHEREAS,
the
Company desires for the Employee to serve Chief Financial Officer/Controller
of
the Company and the parties hereto desire for the Employee to continue serving
in such capacity; and
WHEREAS,
no
formal document exists governing the relationship between the Company and the
Employee, and the Company and Employee desire by the execution of this Agreement
to create a document memorializing the terms and conditions of the Employee’s
service with the Company; and
WHEREAS,
the
Company has granted Employee, by unanimous written consent of the Board of
Directors effective as of even date herewith, 100,000 shares of the
Company’s Common Stock, par value $0.001, (the “Issued Stock”) as bonus
consideration for past services and for services hereunder.
NOW,
THEREFORE,
in
consideration of the mutual agreements hereinafter set forth, Employee and
the
Company have agreed and do hereby agree as follows:
AGREEMENT
1.
Duties.
The
Company hereby agrees to employ and engage Employee as the Chief Financial
Officer/Controller of the Company, and Employee hereby accepts and agrees to
such hiring, engagement, and employment. Employee agrees to perform any and
all
duties and to assume any and all responsibilities that may be assigned to him
from time to time by the Chief Executive Officer or the Board of Directors
of
the Company or that may be required by the Bylaws, Articles of Incorporation
or
other governing document of the Company. During the duration of his employment,
Employee will devote his full time, energy, and skill to the performance of
his
duties for the Company and for the benefit of the Company. Employee shall render
such services to the Company and perform his duties at such place or places
in
as the Company shall require in accordance with its best interests, needs,
business and opportunities. Employee will also exercise due diligence and care
in the performance of Employee’s duties to the Company under this Agreement.
Except for employment with Luminart Corp., during the term hereof, Employee
shall not enter into the services of or be employed in any capacity or for
any
purposes whatsoever, whether directly or indirectly, by any person, firm,
corporation or entity other than Company, and will not, during said period
of
time, be engaged in any business, enterprise or undertaking other than
employment by the Company.
2.
Employment
Period.
Employee’s employment with the Company shall be for an initial term of one (1)
year (the “Initial Term”), commencing on the date hereof and shall continue
thereafter until ended in accordance with this Agreement. In the absence of
a
Notice of Termination, as provided herein, this Agreement shall renew
automatically on the anniversary date hereof, on a year by year term, for each
of the successive two years (“Extended Term”) following the Effective Date.
Provided, however, after the Initial Term, Employee’s employment will be “at
will,” meaning that either Employee or the Company will be entitled to terminate
the employment at any time and for any reason, with or without cause prior
to
the expiration of this Agreement. Any contrary representations which may have
been made to Employee are superseded by this Agreement. The “at will” nature of
the employment after the Initial Term may only be changed in an express written
agreement signed by Employee and a duly authorized officer of the Company.
3.
Compensation.
(a)
Base
Salary.
The
Company shall pay Employee, and Employee agrees to accept from the Company
in
full payment for Employee’s services and promises to the Company (specifically
including the covenants set forth in Sections 5 and 9, below), a base salary
at
the rate of $7,000.00 per month during the duration of Employee’s employment
(“Base Salary”), payable in equal monthly installments or otherwise in
accordance with the Company’s normal pay practices as the same may be altered
from time to time by Company.
(b)
Bonus.
At the
discretion of the Board of Directors, and subject to the satisfaction of such
conditions or performance criteria as may be established from time to time
at
the sole discretion of the Board of Directors, Employee may, from time to time,
receive a bonus. This bonus may consist of, without limitation, either equity
interests of the Company (“Issued Stock”) or cash.
(c)
Withholding
Taxes.
All
forms of compensation paid or payable to Employee whether set forth in this
Agreement or otherwise are subject to reduction to reflect applicable
withholding and payroll taxes.
(d)
Reimbursement
for Business Expenses.
Employee shall receive reasonable and customary reimbursement for business
expenses incurred on behalf of the Company; provided, however, that Employee
shall provide appropriate receipts and documentation for any such expenses.
(e)
Vacation.
Employee shall be entitled to vacation on the terms and subject to the
conditions established by the Board of Directors of the Company.
(f)
Health
Care & Life Insurance Benefits.
In
addition to Employee’s Base Salary during the duration of the Employee’s
employment, when and if the Company adopts health care benefits and/or at life
insurance benefit, Employee shall be eligible for participation in any such
plan(s) on the terms and subject to the conditions established by the Board
of
Directors of the Company.
4.
Issued
Stock; Transferability.
The
Issued Stock and the rights and privileges conferred in whole or in part hereby
may not be transferred, assigned, pledged or hypothecated in any way (whether
by
operation of law or otherwise), and the Company shall have no obligation to
transfer such shares, unless registered under the Securities Act of 1933, as
amended (the “Act”) or, in the opinion of counsel to the Company, such
transaction is in compliance with or exempt from the registration and prospectus
requirements of the Act. The Employee shall pay all costs incurred by the
Company in such a transaction, including but not limited to legal fees and
costs. The Issued Stock shall not be subject to levy and execution, attachment
or similar process. Upon any attempt to transfer, assign, pledge, hypothecate
or
otherwise dispose of the Issued Stock, or any right or privilege conferred
hereby, contrary to the provisions of this Agreement, or upon the levy or
execution, attachment or similar process on the Issued Stock or the rights
and
privileges conferred under this Agreement, the Company shall have the right
to
buy back the Issued Stock, in whole or in part, in the manner described in
Section 6. Each certificate or other documentation evidencing the ownership
of any shares of Issued Stock to be imprinted with a legend in substantially
the
following form:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE REOFFERED, SOLD, TRANSFERRED, PLEDGED, OR ASSIGNED IN THE ABSENCE OF
(A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT
AND THE STATE SECURITIES ACT OR BLUE SKY ACT OF ANY STATE HAVING JURISDICTION
THEREOF, OR (B) AN OPINION OF COUNSEL, REASONABLY SATISFACTORY IN FORM,
SCOPE AND SUBSTANCE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER
SAID
ACT OR THE SECURITIES ACT OR BLUE SKY ACT OF ANY STATE HAVING JURISDICTION
WITH
RESPECT THERETO. ADDITIONALLY, THE SECURITIES REPRESENTED HEREBY ARE SUBJECT
TO
AN OPTION TO REPURCHASE IN FAVOR OF THE COMPANY AS DESCRIBED IN THAT CERTAIN
EMPLOYMENT AGREEMENT DATED DECEMBER 1, 2006.
The
certificate may also bear additional inscriptions that the Company, in its
sole
and absolute discretion, otherwise deems are required by federal, state, foreign
or local securities laws. All shares of Issued Stock shall be subject to such
stop-transfer orders and other restrictions as the Company may deem advisable
under the rules, regulations, and other requirements of the US Securities and
Exchange Commission, any stock exchange upon which the Common Stock is then
listed, and any applicable federal or state securities law, and the Company
may
cause a legend or legends to be put on any certificates evidencing such shares
to make appropriate reference to such restrictions.
5.
Restrictions
on the Issued Stock.
The
Issued Stock is subject to all restrictions in this Agreement. By acceptance
of
the Issued Stock, the Employee agrees that the Issued Stock will be held for
investment and will not be held with a view to their distribution, as that
term
is used in the Act, unless in the opinion of counsel to the Company, such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act. As a condition of this Agreement, the
Company may require the Employee to confirm any factual matters reasonably
requested by counsel for the Company.
THE
EMPLOYEE UNDERSTANDS THAT THE ISSUED STOCK WILL NOT BE REGISTERED AT THE TIME
THIS AGREEMENT UNDER THE SECURITIES ACT. THE EMPLOYEE REPRESENTS THAT IT IS
EXPERIENCED IN EVALUATING COMPANIES SUCH AS THE COMPANY, HAS SUCH KNOWLEDGE
AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS AS TO BE CAPABLE OF EVALUATING
THE
MERITS AND RISKS OF ITS INVESTMENT, AND HAS THE ABILITY TO SUFFER THE TOTAL
LOSS
OF THE INVESTMENT. THE EMPLOYEE FURTHER REPRESENTS THAT IT HAS HAD THE
OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVE ANSWERS FROM THE COMPANY CONCERNING
THE TERMS AND CONDITIONS OF THE ISSUED STOCK, THE COMMON STOCK, AND THE BUSINESS
OF THE COMPANY, AND TO OBTAIN ADDITIONAL INFORMATION TO SUCH EMPLOYEE’S
SATISFACTION. THE EMPLOYEE FURTHER REPRESENTS THAT IT IS AN “ACCREDITED
INVESTOR” WITHIN THE MEANING OF REGULATION D UNDER THE ACT, AS PRESENTLY IN
EFFECT.
6.
Resignation;
Termination for Cause; Other Terminations.
(a)
Resignation.
Employee shall have the right to terminate this Agreement at any time upon
thirty (30) days prior written notice to the Company of any such
termination (“Employee Notice of Termination”). In the event that such
resignation is for Good Reason (as that term is defined below), all of
Employee’s rights and all of the Company’s obligations hereunder shall terminate
effective on the date of Employee’s resignation and Employee shall be entitled
to receive the unpaid portion of the Base Salary earned up to the date of such
termination and all benefits payable to Employee as a result of such termination
under the terms of the Company’s applicable employee benefit plans. In the event
Employee shall resign for other than Good Reason, Employee’s obligations and the
Company’s rights under Sections 5, 6, 7, 8, 9 and 10 shall survive the
termination of this Agreement for a period of one (1) year, and the Issued
Stock will be subject to the Option to Repurchase as set forth below. The
Employee may terminate the Employee’s employment with the Company at any time
for “Good Reason”, if any of the following have occurred without the Employees
consent:
(i)
the
material reduction of the Employee’s authority, duties and responsibilities, or
the assignment to the Employee of duties materially inconsistent with the
Employee’s position or positions with the Company and its subsidiaries, except
that the Company shall have thirty (30) days from the date on which the
Employee gives the notice thereof to cure such event or condition and, if the
Company does so, such event or condition shall not constitute Good Reason
hereunder;
(ii)
a
reduction of the Annual Salary of the Employee, except that a reduction of
the
Employee’s Base Salary shall not constitute Good Reason for termination if
(i) the Company cures such reduction no later than thirty (30) days
from the date on which the Employee gives the Company notice that the reduction
constitutes Good Reason for termination hereunder; or (ii) such reduction
is made in connection with a reduction in compensation of not more than ten
percent (10%) of the Employee’s Base Salary and such reduction is made
generally applicable to all senior management employees of the Company;
(iii)
the
failure by the Company to obtain an agreement in form and substance reasonably
satisfactory to the Employee from any successor to the business of the Company
to assume and agree to perform this Agreement;
(iv)
the
Company’s material and willful breach of this Agreement, except that the Company
shall have thirty (30) days from the date on which the Employee gives the
notice thereof to cure such event or condition and, if the Company does so,
such
event or condition shall not constitute Good Reason hereunder;
(v)
a
requirement by the Company that Employee’s work location be moved more than
fifty (50) miles of the Company’s principal place of business in San Diego,
California; or
(vi)
the
occurrence of a change of control, which for purposes of this Agreement shall
mean the sale to an independent third party or group of independent third
parties of either (i) more than fifty percent (50%) of the issued and
outstanding equity securities of the Company and the voting power under normal
circumstances to elect a majority of the Company’s Board of Directors (whether
by merger, consolidation, sale or transfer of the Company’s equity securities);
or (ii) all or substantially all of the Company’s assets determined on a
consolidated basis.
(b)
Termination
for Cause.
The
Company may terminate Employee’s employment at any time for Cause (as defined
below) with thirty (30) days written notice and opportunity to cure the
violation (“Employer Notice of Termination”). Such opportunity to cure will only
be available if the violation is contained in one of the following paragraphs
(contained below in this Subsection 6(b)): (iv), (viii), (ix), (x) (xi). If
Employee’s employment is terminated pursuant to this Subsection 6(b), all of
Employee’s rights and all of the Company’s obligations hereunder shall
immediately terminate. As used in this section, “for Cause” shall mean any of
the following:
(i)
Willfully damaging the Company’s property, business, reputation or goodwill;
(ii)
Committing a felony;
(iii)
Death, theft, dishonesty, fraud or embezzlement;
(iv)
Using alcohol, narcotics or other controlled substances to the extent that
it
prevents the Employee from efficiently performing services for the Company;
(v)
Willfully injuring any other employee of the Company;
(vi)
Willfully injuring any person in the course of performance of services for
the
Company;
(vii)
Disclosing to a competitor or other unauthorized persons, confidential or
proprietary information, or secrets of the Company;
(viii)
Soliciting business on behalf of a competitor or a potential competitor of
the
Company;
(ix)
Sexually harassing any other employee of the Company or committing any act
which
otherwise creates an offensive work environment for other employees of the
Company;
(x)
Failing to comply with any provision of the Company’s policy manual or standard
operating procedures as it applies to Employee; or
(xi)
Breaching this Agreement.
The
Company shall not be limited to termination as a remedy for any improper or
illegal act of Employee, but may also seek damages, injunction or such other
remedy as it may deem appropriate under the circumstances. This shall include
without limitation the option by the Company, in its sole and absolute
discretion, to repurchase the Issued Stock, in whole or in part, for an amount
of $.001 per share (the “Option to Repurchase”), immediately upon the
termination of the Employee’s employment with the Company for Cause, or the
Employee’s resignation without Good Reason. Upon the termination of the Employee
for Cause, Employee’s obligations and the Company’s rights under Sections 7, 8,
9, 10, 11 and 12 shall survive the termination of this Agreement for a period
of
one (1) year
(c)
Termination
without Cause.
The
Company may terminate Employee’s employment at any time without Cause pursuant
to written notice provided to Employee not less than thirty (30) days in
advance of such termination date (“Employer Notice of Termination”). If
Employee’s employment is terminated pursuant to this Section 6(c), all of
Employee’s rights and all of the Company’s obligations hereunder shall
immediately terminate. Notwithstanding a termination of this Agreement pursuant
to this Section 6(c), Employee’s obligations and the Company’s rights under
Sections 5, 6, 7, 8, 9 and 10 shall survive the termination of this Agreement
for a period of one (1) year; provided, however, that in the event of a
termination without Cause, the non-competition provision in subsection 7(b)
below shall continue so long as the Company continues to pay Employee’s full
wages after such termination.
(d)
Notice
of Termination. The
Employee Notice of Termination and the Employer Notice of Termination as each
is
provided herein shall be collectively referred to as “Notice of Termination” for
purposes of paragraph 2, above.
7.
Non-solicitation;
Non-competition.
(a)
Employee agrees that he will not at any time during the Employee’s employment or
the Restriction Period (the “Restriction Period” shall mean the one
(1) year subsequent to the end of Employee’s employment by the Company for
any reason, which ending of employment shall be referred to as the “Termination
Date”), whether voluntarily or involuntarily, directly or indirectly for himself
or any other person or entity solicit, interfere with or endeavor to entice
away
from Company or any of its affiliates any other employee of Company or any
of
its affiliates. Additionally, Employee agrees that during the Restriction Period
any employment by Employee or any entity in which he has an interest, directly
or indirectly (other than a publicly traded company in which he has less than
a
1% interest) of any person who was in the employ of the Company or any of its
affiliates within the preceding year, shall be a violation of this Section.
For
the purposes of this Agreement indirect interests shall include interests held
by Employee’s family members or any partner in a partnership, Limited Liability
Company or other entity in which he has a 10% or greater ownership interest.
(b)
Employee further agrees that he will not at any time during the Restriction
Period, whether voluntarily or involuntarily, directly or indirectly, for
himself or any other person or entity:
(i)
engage, directly or indirectly (either as an employee, officer, director,
partner, shareholder, consultant or independent contractor), in any business
substantially similar to that carried on by the Company, or any of its
affiliates, or in providing services or products or offering to provide products
or services of the kind provided by the Company or any of its affiliates as
of
the Termination Date within those areas in the United States, US Territories,
Mexico, Central America and the Caribbean (the “Non-Competition Area”) which the
Company or any of its affiliates is doing business as of the Termination Date
or
in which, at the time of the Termination Date, the Company or any of its
affiliates contemplates doing business, or, for those customers of the Company
or any of its affiliates for whom the Company or any of its affiliates:
(A) is engaged in providing services or products as of the Termination
Date, or (B) has either provided services or products within the twenty
four month (24) period prior to the Termination Date, or (C) has
contacted at any time during the twelve (12) months prior to the
Termination Date, for the purpose of offering to provide services or products
(all of which are hereinafter referred to as the “Clients”);
(ii)
Solicit or attempt to solicit those Clients for the purposes of providing or
offering to provide any services or products of a type which the Company or
any
of its affiliates provides or contemplates providing as of the Termination
Date,
on behalf of those Clients, whether directly or through any other persons,
partnerships, corporations, companies or other entities; or
(iii)
Take any other action which would impair the value of the business or assets
of
the Company or any of its affiliates, including, without limitation, any action
which would tend to disparage or diminish the reputation of the Company or
any
of its affiliates.
(c)
If in
any judicial proceeding, a court shall refuse to enforce this Agreement, whether
because the time limit is too long or because the restrictions contained herein
are more extensive (whether as to geographic area, scope of business or
otherwise) than is necessary to protect the business and goodwill of the
Company, it is expressly understood and agreed between the parties hereto that
this Agreement is deemed modified to the extent necessary to permit this
Agreement to be enforced in any such proceedings.
(d)
If
the Company or its successors in interest shall make application to a court
of
competent jurisdiction for injunctive relief, then the Restriction Period
specified herein shall be tolled from the time of application for injunctive
relief until the date of final adjudication of the claim for injunctive relief.
Additionally, Employee waives, to the greatest extent permissible, any
requirement that the Company post bond or other security as a precondition
to an
injunction, whether temporary or permanent.
(e)
Employee agrees that compliance with this Section is necessary to protect the
goodwill and other trade secret, confidential and proprietary interests of
the
Company and that a breach of this Section will give rise to irreparable and
continuing injury to the Company which is not adequately compensable in monetary
damages or at law. Accordingly, Employee agrees that the Company, its successors
and assigns may obtain injunctive relief against the breach or threatened breach
of the foregoing provisions, in addition to any other legal remedies which
may
be available to it under this Agreement. Employee further acknowledges that
in
the event of his termination or expiration of employment with the Company,
his
knowledge, experience and capabilities are such that Employee can obtain
employment in business activities which are of a different or noncompeting
nature than those performed in the course of employment with the Company; and
that the enforcement of a remedy hereunder by way of injunction will not prevent
Employee from earning a reasonable livelihood.
8.
Accounting
for Profits.
Employee
covenants and agrees that if he violates the provisions of Sections 7, 9, 11,
or
12 the Company shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remuneration or other benefits that Employee has
realized and/or may realize as a result of or in connection with any such
violation. These remedies shall be in addition and not in limitation of any
injunctive relief or other rights or remedies to which the Company is or may
be
entitled at law, in equity or under this Agreement.
9.
Assignment
of Proprietary Information.
Except
as may be required in the course of employment by the Company, Employee agrees
that any and all Proprietary Information, as hereinafter defined, which Employee
has made, conceived of, developed or originated, either individually or jointly
with any other person or persons at any time during the period of employment
by
the Company, or during a period of five (5) years after termination or
expiration of said employment, whether during working hours or any other time,
which relate in any way to the business or the type of business now or hereafter
engaged in or contemplated by the Company during the period of Employee’s
employment or which result from or may be suggested by any work Employee does
for the Company or at the Company’s request, shall be the property of the
Company. As used herein, “Proprietary Information” shall mean any and all
proprietary property including but not limited to all techniques, processes,
devices, charts, manuals, accounting programs, accounting analysis, payroll,
and
improvements thereto together with the names and identities of all clients
and
prospective clients, price lists, customers, suppliers and all other information
or materials which the Company may from time to time designate and treat as
confidential and proprietary or as a trade secret.
Employee
shall promptly disclose and assign such Proprietary Information to the Company’s
representatives and do all such acts, and execute and deliver all such
documents, as may be necessary to vest in the Company the title to all such
Proprietary Information and enable the Company to properly prepare and prosecute
any and all applications for patents, trademarks or copyrights thereon as well
as all reissues, renewals and extensions thereof, so that the Company shall
be
the sole and absolute owner of all right, title and interest in said proprietary
property. It is understood and agreed that the words “which relate in any way to
the business or the type of business now or hereafter carried on or contemplated
by the Company” shall properly cover any reasonable development or extension of
the Company’s field of operation. These obligations shall continue beyond the
termination or expiration of Employee’s employment with respect to inventions,
discoveries and developments conceived or made by Employee during the period
of
employment and shall be binding on Employee’s assigns, executors, heirs,
administrators and other legal representatives. Employee agrees that all
correspondence, drawings, reports, ideas, blueprints, manuals, letters,
electronic media, emails, software, notes, analyses, notebooks, reports, charts,
programs, proposals or any other documents concerning the Company’s customers or
products or processes, whether or not prepared by and in the course of
employment, alone or in conjunction with others, is the property of the Company
and upon termination or expiration of employment for any reason, Employee shall
promptly return to the Company any such documents in his possession, custody
or
control.
10.
Information
and Testimony.
Employee will, without expense to himself, give such true information and
testimony under oath if requested, as may be requested of him by the Company
relative to any Proprietary Information that is subject to disclosure to the
Company under the terms hereof.
11.
Proprietary
Information.
Employee agrees that he will not at any time during or after the termination
or
expiration of his employment, except as authorized or directed in writing by
the
Company, use for Employee’s own benefit, copy, reveal, divulge or make known in
any manner to any person, firm or the Company the contents of any methods,
inventions, systems, processes, concepts, techniques, and devices related to
such matters used or developed by the Company, whether or not owned by the
Company, or the methods, processes or manner of the creation and sale of
products or services provided by, sold or leased by the Company, all sometimes
referred to as “Trade Secrets,” as defined below.
Employee
further agrees that he will not at any time during or after the termination
or
expiration of said employment, except as authorized or directed in writing
by
the Company, sell, exchange or give away or otherwise dispose of any methods,
inventions, systems, processes, concepts, techniques and devices related to
the
business now or hereafter owned and operated by the Company, whether the same
shall or may have been originated, discovered or otherwise created by Employee.
Employee further agrees not to reveal, divulge or make known to any person,
firm
or the Company the name of any of the Company’s clients, price lists, suppliers
or any secret, trade secret or other Proprietary Information whatsoever in
connection with the Company, its business or its clients or anything pertaining
thereto.
Employee
understands that if, either during employment or thereafter, he discloses to
others, uses for his own benefit or for the benefit of any person or entity
other than the Company, copies or makes notes of any such Trade Secrets,
information or facilities, such conduct will constitute a breach of the
confidence and trust bestowed upon Employee by the Company and will be a breach
of this Agreement.
“Trade
Secret” shall mean the whole or any portion of any formula, pattern, device,
combination of devices, or compilation of information which is for use, or
is
used in the operation of the Company’s business and which provides the business
an advantage, or an opportunity to obtain an advantage, over those who do not
know or use it. Trade Secret includes any scientific, technical or commercial
information, including any design, process, procedure, list of suppliers, list
of customers, business code, computer programs, sales promotions, sales or
installation technique, or improvement thereof. For purposes of interpretation
hereunder the following shall apply:
(a)
Irrespective of novelty, invention, patentability, the state of the prior art,
and the level of skill in the business, art, or field to which the subject
matter pertains, when the owner thereof takes measures to prevent it from
becoming available to persons other than those selected by the owner to have
access thereto for limited purposes, a trade secret is considered to be secret,
of value, for use or in use by the business, and of advantage to the business,
or providing an opportunity to obtain an advantage, over those who do not know
or use it.
(b)
In
addition, a “Trade Secret” shall include information (not readily compiled from
publicly available sources) which has been made available to Employee during
the
course of his employment, including but not limited to the names, addresses,
telephone number, qualifications, education, accomplishments, experience and
resumes of all persons who have applied or been recruited for employment, for
either or both permanent and temporary jobs, job order specifications and the
particular characteristics and requirements of persons generally hired by the
Company, as well as specific job listings from companies with whom the Company
does, or attempts to do business, as well as mailing lists, computer runoffs,
financial or other information not generally available to others, and all
information defined as a trade secret by applicable California and/or federal
law.
(c)
Employee further agrees that he is under no obligation to any former company
which is in any way inconsistent with this Agreement or which imposes any
restriction on behalf of the Company. The Employee also acknowledges that he
has
been instructed that during the term of employment by the Company, he is not
to
divulge to the Company, its employees or its consultants any confidential
information obtained from any previous employers or any other person.
12.
Return
of Records.
On
termination of employment, Employee shall deliver all records, notes, data,
memoranda, models, and equipment of any nature that are in Employee’s possession
or under his control and that are the property of the Company or relate to
the
employment or to the business of the Company.
13.
No
Slander.
Employee agrees not to in any way slander or injure the business reputation
or
goodwill of the Company, including, by way of illustration, through any contact
with Clients, prospective clients, vendors, suppliers, employees, advertisers,
public relations firm(s), media, investigators or agents of the Company which
could slander or injure the business reputation or goodwill of the Company.
14.
Waiver
or Modification.
No
waiver or modification of this Agreement or of any covenant, condition, or
limitation herein contained shall be valid unless in writing and duly executed
by the party to be charged therewith. Furthermore, no evidence of any
modification or waiver shall be offered or received as evidence in any
proceeding, arbitration or litigation between the parties arising out of or
affecting this Agreement or the rights or obligations of any party hereunder,
unless such waiver or modification is in writing, duly executed as aforesaid.
The provisions of this Section may not be waived except as herein set forth.
15.
Choice
of Law; Waiver of Jury Trial, Arbitration.
This
Agreement and the performance hereunder and all suits and special proceedings
hereunder shall be construed in accordance with the laws of the State of
California. 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 California shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the jurisdiction
in
which the action or special proceeding may be instituted. All actions under
this
Agreement shall be taken in a court of competent jurisdiction within San Diego
County in the State of California in which the Company’s principal place of
business is located and Employee hereby waives and agrees that he shall not
assert that such forum is inconvenient. Except for provisional remedies and
pre-judgment relief, any controversy or claim arising out of, or relating to,
this Agreement or a breach hereof shall be settled by arbitration in accordance
with the rules then obtained from the American Arbitration
Association.
EACH
PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND A
TRIAL
BY JURY FOR ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY
WAY
RELATED TO THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES. THIS WAIVER
EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING FROM ANY SOURCE,
INCLUDING BUT NOT LIMITED TO THE CONSTITUTION OF THE UNITED STATES, THE
CONSTITUTION OF ANY STATE, COMMON LAW OR ANY APPLICABLE STATUTE OR REGULATION.
EACH PARTY HEREBY ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING
THE
RIGHT TO DEMAND TRIAL BY JURY.
16.
Binding
Effect of Agreement.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors, assigns and legal representatives.
17.
Life
Insurance.
Inasmuch
as the services of Employee are important to the success or failure of the
Company, the Company may, by its sole discretion, purchase disability insurance
or insurance on the life of the Employee during the term hereof in such amounts
as the Company shall determine appropriate. Such insurance shall be owned by
the
Company, the Company shall be the sole beneficiary, and all premiums therefor
shall be paid by the Company. The Employee agrees to cooperate with the
reasonable requirements of the Company and/or its insurance carriers as
necessary to obtain such insurance, including submitting to any and all
necessary medical examinations.
18.
Invalid
Provision.
The
invalidity or unenforceability of a particular provision of this Agreement
shall
not effect the other provisions hereto, and this Agreement shall be construed
in
all respects as if such invalid or unenforceable provisions were omitted.
19.
Costs
of Enforcement.
In the
event either party initiates action to enforce his, her or its rights hereunder,
the prevailing party shall recover from the non-prevailing party the reasonable
expenses, court costs, including taxed and untaxed costs, and reasonable
attorneys’ fees, whether suit be brought or not (jointly referred as to
“Expenses”). As used herein, Expenses include expenses incurred in any appellate
or bankruptcy proceeding. All such Expenses shall bear interest at the highest
rate allowable under the laws of the State of California from the date the
substantially prevailing party pays such Expenses until the date the
substantially non-prevailing party repays such Expenses. Expenses incurred
in
enforcing this Section shall be covered by this Section. For this purpose,
the
court is requested by the parties to award actual costs and attorneys’ fees
incurred by the prevailing party, it being the intention of the parties that
the
prevailing party is completely reimbursed for all such costs and fees. The
parties request that inquiry by the court as to the fees and costs shall be
limited to a review of whether the fees charged and hourly rates for such fees
are consistent with the fees and hourly rates routinely charged by the attorneys
for the prevailing party.
20.
Assignment.
This
Agreement shall be construed as a contract for personal services by Employee
to
the Company and shall not be assignable by Employee. This Agreement may be
assigned by the Company.
21.
Strict
Construction.
This
Agreement was the joint, negotiated product of the parties. Therefore, neither
party shall advance a position that any provision hereof should be more strictly
construed against the other party on the basis that such other party prepared
such provision.
22.
Cumulative
Rights.
Unless
otherwise provided herein, all rights, powers and privileges conferred upon
the
parties by law, this Agreement or otherwise shall be cumulative.
23.
Waiver.
No
failure of any party to exercise any power given such party hereunder or to
insist upon strict compliance by any party with its obligations hereunder,
and
no custom or practice of the parties in variance with the terms hereof shall
constitute a waiver of the parties’ right to demand exact compliance with the
terms hereof.
24.
Survival.
The
provisions of this Agreement shall continue and survive the closing hereof
unless or until there is a completion and fulfillment of all the conditions,
covenants and warranties herein.
25.
Time.
Time is
of the essence of this Agreement.
26.
Notices.
All
notices, requests, demands and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given when
delivered by hand or when mailed by certified registered mail, return receipt
requested, with postage prepaid to their current address or to such other
address as they request in writing.
27.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute the same instrument.
28.
Singular/Plural
Feminine/Masculine, Successors or Assigns.
All
references as used herein shall include male and female, singular and plural,
and successors or assigns in the use of a corporation, partnership, individual
or entity in any place or places herein in which the context may require or
permit such substitution, substitutions or designations.
29.
Legal
Representation.
Employee acknowledges having carefully read and reviewed this Agreement and
Employee acknowledges that Employer has advised him to seek independent legal
counsel to review this Agreement and to advise him of his rights hereunder.
Employee acknowledges having had an opportunity to ask questions about this
Agreement and to consult other legal counsel. Employee understands and
acknowledges that Employer is represented by an attorney responsible for
drafting the provisions of this Agreement in accordance with the wishes of
the
Company.
30.
Complete
Agreement.
This
written Agreement contains the sole and entire agreement between the parties
as
to the matters contained herein, and supersedes any and all other agreements
between them. The parties acknowledge and agree that neither of them has made
any representation with respect to such matters of this Agreement or any
representations except as are specifically set forth herein, and each party
acknowledges that he or it has relied on his or its own judgment in entering
into this Agreement. The parties further acknowledge that statements or
representations that may have been heretofore made by either of them to the
other are void and of no effect and that neither of them has relied thereon
in
connection with his or its dealing with the other.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first set forth above.
“EMPLOYER” “EMPLOYEE”
ETHOS
ENVIRONMENTAL, INC. XXXXXX
X.
XXXXX
By:
____________________________ By:
____________________________
Xxxxxxx
de Vilmorin Xxxxxx
X.
Xxxxx
Its:
President an
Individual