Exhibit 10.1
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EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Employment Agreement" or "Agreement")
is made and entered into as of the 13th day of February, 2006 (the "Execution
Date"), by and between N-Viro International Corporation, a Delaware corporation
(the "Company"), and Timothy R. Kasmoch, an individual ("Employee").N-Viro
W I T N E S S E T H:
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WHEREAS, the Company owns and licenses the N-Viro Process, a patented
technology to treat and recycle wastewater sludge and other bio-organic wastes,
utilizing certain alkaline and mineral by-products produced by cement, lime,
electric utilities and other industries (such activities, together with all
other activities of the Company, as conducted at or prior to the termination of
this Employment Agreement, and any future activities reasonably related thereto
that are contemplated by the Company at the termination of this Employment
Agreement identified in writing by the Company to Employee at the date of such
termination, are hereinafter collectively referred to as the "Business
Activities");
WHEREAS, the Company and Employee have agreed that Employee shall
assume the duties of President and Chief Executive Officer subject to the terms
and conditions set forth in this Employment Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants and conditions herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto intending to be legally bound hereby agree as follows:
Section 1. Employment. During the Employment Period (as
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hereinafter defined), the Company shall employ Employee, and Employee shall
accept employment with the Company, all upon the terms and subject to the
conditions set forth in this Employment Agreement.
Section 2. Capacity and Duties. Employee shall be employed in the
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capacity of President and Chief Executive Officer of the Company and shall have
such other duties, responsibilities and authorities as are assigned to him by
the Board of Directors of the Company (the "Board") so long as such additional
duties, responsibilities and authorities are consistent with Employee's position
and level of authority as President and Chief Executive Officer of the Company.
Employee shall report directly to the Board of the Company. Subject to the
control and general directions of the Board and except as otherwise herein
provided, Employee shall devote all necessary 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 of Employee to be performed by him
under this Employment Agreement. Employee's duties shall include the ongoing
management and oversight of the general business affairs and operations of the
Company and its subsidiaries and affiliates and shall include, but not be
limited to, routine operations, matters relating to research and development,
technical direction, national and international sales and/or licensing, national
policy and governmental regulations and relations including those relating to
water 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 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. It is expressly understood
that Employee also is and/or may become engaged in other business activities,
including but not limited to management positions with Tri-State Garden Supply
d/b/a Gardenscape and other similar ventures including ventures not yet formed.
Any business between Company and Tri-State Garden Supply and/or any other entity
that Employee also is and/or may become engaged, shall be disclosed to the Audit
Committee of the Company's Board in advance. Employee's other business
activities shall not unreasonably interfere with Employee's performance of his
obligations under this Employment Agreement.
Section 3. Term of Employment. The term of employment of Employee
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by the Company pursuant to this Employment Agreement shall be for the period
(the "Employment Period") commencing on February 13, 2006 (the "Commencement
Date") and ending on February 12, 2007 or such earlier date that Employee's
employment is terminated or later date that Employee's employment is extended in
accordance with the provisions of this Employment Agreement (the "Termination
Date"). So long as Employee is in full compliance with all of the terms and
conditions of this Employment Agreement, Employee is not in default under or in
breach of any of the covenants, agreements, representations or warranties set
forth in this Employment Agreement and neither Employee nor the Company has
delivered a Notice of Termination (as hereinafter defined) to the other that the
Employment Period shall not be extended, then this Employment Agreement and the
Employment Period shall be extended for an additional period of one (1) year
beginning February 13, 2007 and on February 13th of each succeeding year
thereafter.
Section 4. Place of Employment. Employee's principal place of
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work shall be deemed to be at the principal offices of the Company in the
Toledo, Ohio area or such other locations as may be reasonably designated by the
Board. The Company and Employee acknowledge that Employee's principal place of
work is consistent with the extensive national and international business travel
which may be required of Employee in connection with the performance of his
duties, responsibilities and authorities under this Agreement.
Section 5. Compensation. During the Employment Period, subject to
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all the terms and conditions of this Employment Agreement and, except as
otherwise provided in Sections 9 or 10, as the case may be, as compensation for
all services to be rendered by Employee under this Employment Agreement, the
Company shall pay to or provide Employee with the following:
5.01 Base Salary. The Company shall pay to Employee a base
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annual salary (the "Base Salary") at the rate of at least Sixty Thousand Dollars
($60,000) per year from the Commencement Date through February 12, 2007, payable
at such intervals (at least monthly) as salaries are paid generally to other
executive officers of the Company. On or before January 1, 2007 and on or
before each January 1 thereafter during the Employment Period, Employee's Base
Salary shall be reviewed by the Board and increased to an amount determined in
good faith by the Board based upon a complete review of Employee's performance
under this Employment Agreement during the prior year and the growth and
profitability of the Company and Employee's contributions thereto, which review
shall be communicated in writing to Employee.
5.02 Cash Bonus. At the sole and exclusive discretion of the
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Board, the Company may pay to Employee an annual cash bonus (the "Cash Bonus")
in an amount determined in good faith by the Board based upon a complete review
of Employee's performance under this Employment Agreement during the prior year
and the growth and profitability of the Company and Employee's contribution
thereto. Any Cash Bonus payable to Employee pursuant to this Section 5.02 shall
be payable, if at all, on or before December 31, of each year during the
Employment Period based upon Employee's performance for the prior calendar year.
5.03 Stock Compensation. The Company shall, as additional
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compensation, issue to Employee Fifty Thousand (50,000) shares of Common Stock,
par value $.01 per share, of the Company (the "Company Common Stock"). These
shares shall be restricted shares, which may not be sold or hypothecated except
pursuant to an effective registration statement filed with the Securities and
Exchange Commission covering such shares or an exemption being available
therefrom in the opinion of securities counsel for the Company, and in
compliance with all applicable state blue sky laws. Shares shall be granted in
four (4) equal quarterly installments, with the first grant due on March 1,
2006, and the final quarterly installment being due on February 12, 2007. An
additional Fifty Thousand (50,000) shares of Company Common Stock, similarly
restricted and with similar restrictions on resale or hypothecation, shall be
granted to Employee in any annual extension of this Agreement during the
Employment Period, and will also be made in quarterly installments.
Section 6. Adherence to Standards. Employee shall institute and
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comply with the written policies, standards, rules and regulations of the
Company from time to time established for all executive officers of the Company.
Employee shall submit a written report to the Board by the seventh (7th) day of
each month or the next business day if the 7th of the month falls on a weekend
or holiday. This report shall detail the activities of any consultants of the
Company and the business activities undertaken by Employee in the prior month.
Section 7. Review of Performance. The Board shall periodically
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review and evaluate the performance of Employee under this Employment Agreement
with Employee.
Section 8. Expenses. The Company shall reimburse Employee for all
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reasonable, ordinary and necessary expenses (including, but not limited to,
automobile and other business travel and customer entertainment expenses)
incurred by him in connection with his employment hereunder; provided, however,
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Employee shall render to the Company a complete and accurate accounting of all
such expenses in accordance with the substantiation requirements of Section 274
of the Internal Revenue Code of 1986, as amended (the "Code"), as a condition
precedent to such reimbursement. Employee will also follow all established
guidelines relating to reimbursement of expenses as may be promulgated by the
Board.
Section 9. Termination with Cause by the Company. This Employment
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Agreement may be terminated with Cause (as hereinafter defined) by the Company
provided that the Company shall (i) give Employee the Notice of Termination and
(ii) pay Employee his annual base salary through the Termination Date at the
rate in effect at the time the Notice of Termination is given plus any bonus or
incentive compensation which have been earned or have become payable pursuant to
the terms of any compensation or benefit plan as of the Termination Date, but
which have not yet been paid.
Section 10. Termination without Cause by the Company or by
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Employee. This Employment Agreement may be terminated by (i) the Company by
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reason of the death or Disability (as hereinafter defined) of Employee, (ii) the
Company by giving Employee the Notice of Termination, (iii) Employee after
giving the Company the Notice of Termination at least thirty (30) days prior to
such termination. In the event of termination of this Employment Agreement
under this Section 10, the Company shall pay Employee his Base Salary through
the Termination Date at the rate in effect at the time of the Termination Date
plus any bonus or incentive compensation which have been earned or have become
payable pursuant to the terms of any compensation or benefit plan as of the
Termination Date, but which have not yet been paid. In the event of termination
of this Employment Agreement under this Section 10 by the Company (other than by
reason of the death or Disability of Employee) and such termination is on or
prior to the Termination Date that would be in effect if such employment had not
been terminated under this Section 10, the Company shall pay to Employee, in
addition to the other benefits specifically provided for in this Section, his
Base Salary for the period between the Termination Date and the natural
expiration of this Employment Agreement or the expiration of any annual
extension thereof in effect as of the Termination Date. This Section 10 shall
not be interpreted so as to limit any benefits to which Employee, as a
terminated employee of the Company, or his family may be entitled under the
Company's life insurance, medical, hospitalization or disability plans following
the Termination Date or under applicable law.
Section 11. Definitions. In addition to the words and terms
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elsewhere defined in this Employment Agreement, certain capitalized words and
terms used in this Employment Agreement shall have the meanings given to them by
the definitions and descriptions in this Section 11 unless the context or use
indicates another or different meaning or intent, and such definition shall be
equally applicable to both the singular and plural forms of any of the
capitalized words and terms herein defined. The following words and terms are
defined terms under this Employment Agreement:
11.01 "Disability" shall mean a physical or mental illness
which, in the judgment of the Company after consultation with the licensed
physician attending Employee, impairs Employee's ability to substantially
perform his duties under this Employment Agreement as an employee with or
without reasonable accommodation and as a result of which he shall have been
absent from his duties with the Company on a full-time basis for three (3)
consecutive months.
11.02 A termination with "Cause" shall mean a termination of
this Employment Agreement by reason of (a) a good faith determination by the
Board that Employee (i) failed to substantially perform his duties with the
Company (other than a failure resulting from his incapacity due to physical or
mental illness) after a written demand for substantial performance has been
delivered to him by the Board, which demand specifically identifies the manner
in which the Board believes he has not substantially performed his duties and
Employee has failed to substantially perform as requested within a reasonable
time, (ii) has engaged in conduct the consequences of which are materially
adverse to the Company, monetarily or otherwise, (iii) is found guilty of fraud,
dishonesty or other acts of gross misconduct or misfeasance in the performance
of his duties under this Employment Agreement by a court of competent
jurisdiction whose decision is final and non-appealable, (iv) is found to be
under the influence of illegal drugs or other similar substance while performing
his duties under this Employment Agreement or (v) is convicted of a felony, or
(b) the Company makes an assignment for the benefit of creditors, files a
voluntary petition in bankruptcy, is involuntarily adjudicated to bankrupt, is
liquidated or dissolved or sells substantially all of its assets. No act, or
failure to act, on Employee's part shall be grounds for termination with Cause
unless he has acted or failed to act with an absence of good faith or without a
reasonable belief that his action or failure to act was in or at least not
opposed to the best interests of the Company. Notwithstanding the foregoing,
Employee shall not be deemed to have been terminated with Cause unless there
shall have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board (exclusive of Employee) at a meeting of the Board called at least in part
for that purpose finding that in the good faith opinion of the Board, Employee
failed to perform his duties or engaged in conduct in the manner or of the type
set forth above in the first sentence of this Section 11.02 and specifying the
particulars thereof in detail.
11.03 Notice of Termination. "Notice of Termination" shall
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mean a written notice which shall indicate the specific termination provision in
this Employment Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Employee's employment under the provision so indicated; provided, however, no
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such purported termination shall be effective without such Notice of
Termination; provided further, however, any purported termination by the Company
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or by Employee shall be communicated by a Notice of Termination to the other
party hereto in accordance with Section 3 of this Employment Agreement.
Section 12. Fees and Expenses. The Company shall pay all legal
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fees and related expenses (including the costs of experts, evidence and counsel)
incurred by Employee as a result of a contest or dispute over Employee's
termination of employment if such contest or dispute is resolved in Employee's
favor.
Section 13. Indemnification. Consistent with the Bylaws of the
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Company, the Company agrees that it shall indemnify and hold Employee harmless
for any judgment(s), costs, fees (including attorney's fees), and/or penalties
for any action of any kind that arises from the Employee's performance of his
duties under this Employment Agreement. The Company hereby agrees that it will
at all times carry directors and officers liability insurance covering Employee
and all of the members of the Board including Employee.
Section 14. Notices. For the purposes of this Employment
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Agreement, notices and all other communications provided for in the Employment
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or sent by certified mail, return receipt requested,
postage prepaid, or by expedited (overnight) courier with established national
reputation, shipping prepaid or billed to sender, in either case addressed to
the respective addresses last given by each party to the other (provided that
all notices to the Company shall be directed to the attention of the Board with
a copy to the Secretary of the Company) or to such other address as either party
may have furnished to the other in writing in accordance herewith. All notices
and communication shall be deemed to have been received on the date of delivery
thereof, on the third business day after the mailing thereof, or on the second
day after deposit thereof with an expedited courier service, except that notice
of change of address shall be effective only upon receipt.
Section 15. Life Insurance. The Company may, at any time after
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the execution of this Employment Agreement, apply for and procure as owner and
for its own benefit, life insurance on Employee, in such amounts and in such
form or forms as the Company may determine. Employee shall, at the request of
the Company, submit to such medical examinations, supply such information, and
execute such documents as may be required by the insurance company or companies
to whom the Company has applied for such insurance. Employee hereby represents
that to his knowledge he is in excellent physical and mental condition and is
not under the influence of drugs or similar substance.
Section 16. Proprietary Information and Inventions. Employee
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understands and acknowledges that:
16.01 Trust. Employee's employment creates a relationship of
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confidence and trust between Employee and the Company with respect to certain
information applicable to the business of the Company and its subsidiaries and
affiliates (collectively, the "Group") or applicable to the business of any
licensee, vendor or customer of any of the Group, which may be made known to
Employee by the Group or by any licensee, vendor or customer of any of the Group
or learned by Employee during the Employment Period.
16.02 Proprietary Information. The Group possesses and will
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continue to possess information that has been created, discovered, or developed
by, or otherwise become known to, the Group (including, without limitation,
information created, discovered, developed or made known to by Employee during
the period of or arising out of his employment by the Company) or in which
property rights have been or may be assigned or otherwise conveyed to the Group,
which information has commercial value in the business in which the Group is
engaged and is treated by the Group as confidential. Except as otherwise herein
provided, all such information is hereinafter called "Proprietary Information",
which term, as used herein, shall also include, but shall not be limited to,
data, functional specifications, computer programs, know-how, research, patents,
inventions, discoveries, processes, procedures, formulae, technology,
improvements, developments, designs, marketing plans, strategies, forecasts, new
products, unpublished financial statements, budgets, projections, licenses,
prices, costs, and customer, supplier and potential acquisition candidates
lists. Notwithstanding anything contained in this Employment Agreement to the
contrary, the term "Proprietary Information" shall not include (i) information
which is in the public domain, (ii) information which is published or otherwise
becomes part of the public domain through no fault of Employee, (iii)
information which Employee can demonstrate was in Employee's possession at the
time of disclosure and was not acquired by Employee directly or indirectly from
any of the Group on a confidential basis, (iv) information which becomes
available to Employee on a non-confidential basis from a source other than any
of the Group and which source, to the best of Employee's knowledge, did not
acquire the information on a confidential basis, (v) information belonging to
other entities including, but not limited to, Tri-State Garden Supply d/b/a
Gardenscape and/or any other entity, or (vi) information required to be
disclosed by any federal or state law, rule or regulation or by any applicable
judgment, order or decree or any court or governmental body or agency having
jurisdiction in the premises.
All Proprietary Information shall be the sole property of the Group and their
respective assigns. Employee assigns to the Company any rights Employee may
have or acquire in such Proprietary Information. At all times, both during
Employee's employment by the Company and after its termination, Employee shall
keep in strictest confidence and trust all Proprietary Information, and Employee
shall not use or disclose any Proprietary Information without the written
consent of the Group, except as may be necessary in the ordinary course of
performing Employee's duties as an employee of the Company. Notwithstanding the
foregoing, Employee agrees that all Proprietary Information shall be kept in
confidence by Employee for a period of at least three (3) years after the
Termination Date of this Agreement.
Section 17. Inventions. Any and all inventions, conceptions,
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processes, discoveries, improvements, patent rights, letter patents, programs,
copyrights, trademarks, trade names and applications therefore relating to
technology used by the Company to treat and recycle wastewater sludge and other
bio-organic wastes, utilizing certain alkaline and mineral by-products produced
by cement, lime, electric utilities and other industries, in the United States
and other countries, and any and all rights and interest in, to and under the
same, that are conceived, made, acquired, or possessed by Employee, alone or
with other employees, during the term of this Employment Agreement shall become
the exclusive property of the Company and shall at all times and for all
purposes be regarded as acquired and held by Employee in a fiduciary capacity
for the sole benefit of the Company, and the Employee hereby assigns and agrees
to assign the same to the Company without further compensation. Employee agrees
that, upon request, he will promptly make all disclosures, execute all
applications, assignments or other instruments and perform all acts whatsoever
necessary or desired by the Company to vest and confirm in it, its successors,
assigns and nominees, fully and completely, all rights and interests created or
contemplated by this Section.
Section 18. Surrender of Documents. Employee shall, at the request
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of the Company, promptly surrender to the Company or its nominee any Proprietary
Information or document, memorandum, record, letter or other paper in his
possession or under his control relating to the operation, business or affairs
of the Group.
Section 19. Prior Employment Agreements. Employee represents and
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warrants that Employee's performance of all the terms of this Employment
Agreement and as an employee of the Company does not, and will not, breach any
agreement to keep in confidence proprietary information acquired by Employee in
confidence or in trust prior to Employee's employment by the Company. Employee
has not entered into, and shall not enter into, any agreement, either written or
oral, which is in conflict with this Employment Agreement or which would be
violated by Employee entering into, or carrying out his obligations under, this
Employment Agreement.
Section 20. Restrictive Covenant. Except as provided herein
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and/or as agreed by the Board of the Company, Employee acknowledges and
recognizes Employee's possession of Proprietary Information and the highly
competitive nature of the business of the Group and, accordingly, agrees that in
consideration of the covenants and conditions contained herein Employee shall
not, during the Employment Period, (i) directly or indirectly engage in any
Business Activities that do not involve the Company that relate to the treatment
of biosolids, whether such engagement shall be as an employer, officer,
director, owner, employee, consultant, stockholder, partner or other
participant, (ii) assist others in engaging in any Business Activities in the
manner described in the foregoing clause (i), or (iii) induce employees of the
Company to terminate their employment with the Company or engage in any Business
Activities in the world.
Section 21. Customer Exception. The Company agrees that (1) the
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ownership of the outstanding capital stock of a corporation whose shares are
traded on a national securities exchange or on the over-the-counter market, (2)
continuation of present duties with Tri-State Garden Supply d/b/a Gardenscape,
its related and/or similar entities and/or ventures, and/or (3) any other
company/venture disclosed to the Audit Committee of the Board and/or the full
Board in which Employee has an interest that is a customer of the Company (ex.
purchases product and/or pays royalties) shall not be deemed engaging in any
Business Activities subject to the provisions of Section 20. The purpose of
this Section 21 is to recognize that Employee through his duties with Tri-State
Garden Supply d/b/a Gardenscape has been and may continue to be an important
customer of the Company, as well as the Employee's desire personally and on
behalf of Tri-State Garden Supply d/b/a Gardenscape to invest in the creation of
markets and opportunities for the purchase/licensing of the Company's products
and/or processes for the benefit the Company. These activities will, subject to
advance disclosure to and approval by the Company's Board, involve the Company,
Tri-State Garden Supply d/b/a Gardenscape (or an affiliate), and/or another
company(ies) in which Employee has or could have an interest as a
customer/licensee of the Company to open up new markets for the sale/licensing
of the Company's products/processes.
Section 22. Remedies. The parties hereto acknowledge and agree
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that the a remedy at law for a breach or a threatened breach of the provisions
herein would be inadequate, and in recognition of this fact, in the event of a
breach or threatened breach of any of the provisions of this Employment
Agreement, it is agreed that the parties shall be entitled to equitable relief
in the form of specific performance, a temporary restraining order, a temporary
or permanent injunction or any other equitable remedy which may then be
available, without posting bond or other security. No remedy herein conferred
is intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any other remedy given hereunder
now or hereinafter existing at law or in equity or by statute or otherwise.
Section 23. Successive Employment Notice. Within five (5)
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business days after the Termination Date, Employee shall provide notice to the
Company of Employee's next intended employment, unless such employment is with
Tri-State Garden Supply d/b/a Gardenscape and/or its successors or assigns,
and/or any other company which was disclosed the Board pursuant to Section 21.
If such employment is not known by Employee at such date, Employee shall notify
the Company immediately upon determination of such information. Employee shall
continue to provide the Company with notice of Employee's place and nature of
employment and any change in place or nature of employment during the period
ending one (1) year after the Termination Date.
Section 24. Successors. This Employment Agreement shall be
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binding on the Company and any successor to any of its businesses or assets.
Without limiting the effect of the prior sentence, the Company shall use its
best efforts to require any successor or assign (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Employment Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment had
taken place. As used in this Employment Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor or assign to its business
and/or assets as aforesaid which assumes and agrees to perform this Employment
Agreement or which is otherwise obligated under this Agreement by the first
sentence of this Section 24, by operation of law or otherwise.
Section 25. Binding Effect. This Employment Agreement shall inure
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to the benefit of and be enforceable by Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Employee should die while any amounts would still be
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Employment Agreement to Employee's estate.
Section 26. Modification and Waiver. No provision of this
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Employment Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Employee and
such officer as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Employment Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
Section 27. Headings. Headings used in this Agreement are for
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convenience only and shall not be used to interpret or construe its provisions.
Section 28. Waiver of Breach. The waiver of either the Company or
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Employee of a breach of any provision of this Employment Agreement shall not
operate or be construed as a waiver of any subsequent breach by either the
Company or Employee.
Section 29. Amendments. No amendments or variations of the terms
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and conditions of this Employment Agreement shall be valid unless the same is in
writing and signed by all of the parties hereto.
Section 30. Severability. The invalidity or unenforceability of
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any provision of this Employment Agreement, whether in whole or in part, shall
not in any way affect the validity and/or enforceability of any other provision
herein contained. Any invalid or unenforceable provision shall be deemed
severable to the extent of any such invalidity or unenforceability.
Section 31. Governing Law. This Employment Agreement shall be
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construed and enforced pursuant to the laws of the State of Ohio.
Section 32. Arbitration. Any controversy or claim arising out of
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or relating to this Employment Agreement or any transactions provided for
herein, or the breach thereof, other than a claim for injunctive relief shall be
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the "Rules") in effect at the time demand
for arbitration is made by any party. The evidentiary and procedural rules in
such proceedings shall be kept to the minimum level of formality that is
consistent with the Rules. One arbitrator shall be named by the Company, a
second shall be named by Employee and the third arbitrator shall be named by the
two arbitrators so chosen. In the event that the third arbitrator is not agreed
upon, he or she shall be named by the American Arbitration Association.
Arbitration shall occur in Toledo, Ohio or such other location agreed to by the
Company and Employee. The award made by all or a majority of the panel of
arbitrators shall be final and binding, and judgment may be entered in any court
of law having competent jurisdiction. The award is subject to confirmation,
modification, correction, or vacation only as explicitly provided in Title 9 of
the United States Code. The prevailing party shall be entitled to an award of
pre- and post-award interest. All legal fees incurred by any party to the
arbitration, in connection with the arbitration and any judicial proceedings
related thereto shall be paid by such party. The fees of the arbitrators shall
be split between Employee and the Company.
Section 33. Counterparts. This Employment Agreement may be
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executed in more than one (1) counterpart and each counterpart shall be
considered an original.
Section 34. Exhibits. The Exhibits attached hereto are
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incorporated herein by reference and are an integral part of this Employment
Agreement.
Section 35. Sections. Unless the context requires a different
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meaning, all references to "Sections" in this Agreement shall mean the Section
of this Agreement.
Section 36. Publicity. Press releases and other publicity
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materials relating to the transactions contemplated by this Employment Agreement
shall be released by the parties hereto only after review and with the consent
of the other party; provided, however, that if legal counsel for the Company
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advises the Company that disclosure of this Employment Agreement is required
under applicable federal or state securities laws, then the Company shall be
permitted to make such disclosure in the form recommended by such legal counsel
without the prior consent of Employee.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed
by the Company and Employee as of the date first above written.
N-VIRO INTERNATIONAL CORPORATION
By /s/ Phillip Levin
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Its Chairman of the Board
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/s/ Timothy R. Kasmoch
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Timothy R. Kasmoch
EXHIBIT A
STOCK OPTION AGREEMENT
This Stock Option Agreement is dated as of February 13, _____, and is only
effective in an annual renewal of that certain Employment Agreement between
N-Viro International Corporation and Timothy Kasmoch dated February 13, 2006.
Pursuant to the N-Viro International Amended and Restated Stock Option Plan,
Timothy Kasmoch is hereby granted 50,000 options to purchase N-Viro
International Corporation Common Stock, at a price determined by the closing
price of the Company's stock as quoted on the Nasdaq exchange, at the end of the
day February 13, 2006.
IN WITNESS WHEREOF the parties have set their hands as of the date
first above written.
N-VIRO INTERNATIONAL CORPORATION
By
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Its
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Timothy Kasmoch