Exhibit 10.1
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AMENDMENT TO THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT DATED JUNE 6, 2003
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This Amendment to the Amended and Restated Employment Agreement (the
"2004 Amendment") is made and entered into as of the 9th day of September, 2004
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(the "Execution Date"), by and between N-Viro International Corporation, a
Delaware corporation (the "Company"), and Michael G. Nicholson, an individual
("Employee").
N-Viro
W I T N E S S E T H:
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WHEREAS, the Company and Employee entered into an Amended and Restated
Employment Agreement as of June 6, 2003 (the "2003 Employment Agreement"); and,
WHEREAS, the Company and Employee desire to amend the 2003 Employment
Agreement upon the terms and subject to the terms and conditions set forth in
this Amendment.
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants and conditions herein contained and in the 2003 Employment Agreement
and for other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto intending to be legally bound
hereby agree as follows:
SECTION 1. Section 3 of the 2003 Employment Agreement is hereby deleted in
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its entirety and replaced as follows:
Section 3. Capacity and Duties. Employee shall be employed in the capacity
of Vice President of Sales (VP Sales) and Chief Development Officer (CDO) of the
Company and its subsidiaries and affiliates and shall have such other duties,
responsibilities and authorities as are assigned to him by the CEO of the
Company so long as such additional duties, responsibilities and authorities are
consistent with Employee's position and level of authority as VP Sales and CDO
of the Company. Employee shall report directly to the Chief Executive Officer
of the Company. Subject to the control and general directions of the Chief
Executive Officer of the Company and the general policies and guidelines
established by the Board and except as otherwise herein provided, Employee shall
devote all of his business time, best efforts and attention to promote and
advance the business of the Company and its subsidiaries and affiliates and to
perform diligently and faithfully all the duties, responsibilities and
obligations set forth under this Employment Agreement. Employee's duties shall
include the on-going management and oversight of the sales and business
development functions for the Company and its subsidiaries and affiliates and
shall include, but not be limited to sales and marketing of both products and
processes, business development of same, and general promotion, all in
accordance with national, regional and local policies and governmental
regulations relating to water, wastewater management and the environment. So
long as Employee is employed by the Company, the Company shall use its best
efforts to cause the Nominating Committee of the Board or the Board, if there is
no Nominating Committee of the Board, to nominate Employee for reelection as a
director of the Company for a two year term upon expiration of his current term
as a director of the Company and, if so nominated, Employee shall consent to
serve as a director if elected so long as that the company provides adequate
directors and officers insurance. If the company chooses to eliminate the
directors and officers insurance the employee may serve on the board at the
Employee's option. During the Employment Period, Employee shall not be employed
in any other business activity, whether or not such activity is pursued for
gain, profit or other pecuniary advantage; provided, however, that this
restriction shall not be construed as preventing Employee from (i) investing his
personal assets in a business that is not engaged in any Business Activities,
where the form or manner of such investment will not require services of any
significance on the part of Employee in the operation of the affairs of the
business in which such investment is made and in which his participation is
solely that of a passive investor or advisor or (ii) being engaged in those
activities listed on Exhibit 2 attached hereto; provided further, however, that
the activities described in clause (ii) of this sentence shall not unreasonably
interfere with Employee's performance of his obligations under this Employment
Agreement.
SECTION 2. The parties hereto acknowledge that under the 2003 Employment
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Agreement, the Company granted Employee options pursuant to Section 6.04 and
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further pursuant to Exhibit 6.04 of such agreement, the Stock Option Agreement
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(the "2003 Option Agreement"). By circumstances beyond the reasonable control
of either party, the grant of options to Employee could not be fully completed
and expired until after the acceptance by the shareholders of the Company of the
N-Viro International 2004 Stock Option Plan on May 12, 2004. Accordingly, to
effectuate the intent of the parties at the time the 2003 Employment Agreement
was executed, the Company and Employee have now agreed to revise Section 6.04 of
the 2003 Employment Agreement, by deleting the first sentence of Section 6.04,
and replacing it as follows:
The Company shall grant to Employee the sole and exclusive right and option to
purchase Thirty Thousand (30,000) shares of the Common Stock, par value $.01 per
share, of the Company (the "Company Common Stock") at a price per share equal to
Ninety Cents ($0.90), the closing sale price of the Company Common Stock on the
execution date of the 2003 Employment Agreement and upon the terms and subject
to the conditions set forth in the form of the Amended Stock Option Agreement
attached hereto as Exhibit 2.1 (the "Amended Stock Option Agreement"), which the
Company and Employee shall each execute and deliver to the other as of the
execution hereof. Additionally, the Company shall grant to Employee the sole
and exclusive right and option to purchase Twenty Thousand (20,000) shares of
the Company Common Stock at a price per share equal to One Dollar Ninety-five
Cents ($1.95), the closing sale price of the Company Common Stock on August 12,
2004 and upon the terms and subject to the conditions set forth in the form of
the Amended Stock Option Agreement. Upon the vesting of such options, Employee
may execute such options at any time prior to or within two (2) years of the
termination of the 2003 Employment Agreement or two years of the employee's
termination of employment with the Company, whichever is the later date.
SECTION 3. Except as otherwise amended specifically in Section and Section
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2, herein, and in the Amended Stock Option Agreement attached hereto and made a
part hereof, all sections of the 2003 Employment Agreement are affirmed by the
Company and Employee.
IN WITNESS WHEREOF, this 2004 Amendment to the 2003 Employment Agreement has
been duly executed by the Company and Employee in four (4) counterparts as of
the date first above written.
N-VIRO INTERNATIONAL CORPORATION
By /s/ Phillip Levin
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Phillip Levin
Its Chief Executive Officer
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By /s/ Michael G. Nicholson
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Michael G. Nicholson
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EXHIBIT 6.04
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AMENDED STOCK OPTION AGREEMENT
Pursuant to the N-Viro International 2004 Stock Option Plan, Mr. Michael G.
Nicholson is hereby granted 30,000 options to purchase N-Viro International
Corporation Common Stock, at Ninety Cents ($0.90). Such 30,000 options shall be
fully vested in Employee as of August 12, 2004. Further pursuant to the N-Viro
International 2004 Stock Option Plan, Mr. Michael G. Nicholson is hereby granted
20,000 options to purchase N-Viro International Corporation Common Stock, at a
closing price determined by the OTC on August 12, 2004, with 10,000 of such
options vesting on June 6, 2005 and the remaining 10,000 options vesting on June
6, 2006.
IN WITNESS WHEREOF the parties have set their hands as of the date
first above written.
N-VIRO INTERNATIONAL CORPORATION
By /s/ Phillip Levin
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Phillip Levin
Its Chief Executive Officer
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By /s/Michael G. Nicholson
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Michael G. Nicholson