Exhibit 10.1
NOTICE TO PROSPECTIVE EMPLOYEES
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YOU SHOULD CAREFULLY READ THE FOLLOWING DOCUMENT
PRIOR TO SIGNING. IT CONTAINS A NUMBER OF RULES AND
REQUIREMENTS GOVERNING YOUR EMPLOYMENT, CONDUCT
AND ACTIONS. AS THE TERMS ARE USED IN THIS AGREEMENT
YOU ARE THE EMPLOYEE, AND THE COMPANY IS EMPLOYER.
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IF YOU HAVE QUESTIONS CONSULT A LAWYER BEFORE SIGNING.
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT made between ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, a Nevada Corporation,
maintaining offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
(hereinafter "Employer" or "Company"), and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, (hereinafter
"Employee"), an individual currently residing at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
IN CONSIDERATION of the employment or continued employment of the Employee
by Employer and the mutual covenants contained herein, it is agreed at follows:
1. EMPLOYMENT.
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Employer hereby employs or continues the employment of the Employee and the
Employee hereby accepts employment upon the terms and conditions contained
herein.
2. COMPENSATION.
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Compensation shall consist of salary, benefits, vacation, and holidays, as
follows:
(a.) SALARY. First Year - For the services rendered by the Employee to
Employer, Employer shall pay the Employee a salary at the rate of $7,500 per
month, or as otherwise shall be agreed upon from time to time by the parties
hereto. Any raises in salary to which Employee shall become entitled, shall be
evidenced by a written memorandum awarding such raise to the Employee, and
signed by Employer. Second Year - For the services rendered by the Employee to
Employer, Employer shall pay the Employee a salary at the rate of $10,000 per
month, or as otherwise shall be agreed upon from time to time by the parties
hereto. Any raises in salary to which Employee shall become entitled, shall be
evidenced by a written memorandum awarding such raise to the Employee, and
signed by Employer. Third Year - For the services rendered by the Employee to
Employer, Employer shall pay the Employee a salary at the rate of $12,500 per
month, or as otherwise shall be agreed upon from time to time by the parties
hereto. Any raises in salary to which Employee shall become entitled, shall be
evidenced by a written memorandum awarding such raise to the Employee, and
signed by Employer.
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(b.) COMMISSIONS. In addition to salary, Employee shall receive a commission,
payable monthly in arrears, based upon the gross fees/income earned by Employer
based on Employees work product, according to the following scale:
First Year - 5% of Pretax Operating Profits of The Company.
Second Year - 5% of Pretax Operating Profits of The Company.
Third Year - 5% of Pretax Operating Profits of The Company.
(c.) BENEFITS. Benefits shall be paid to Employee by Employer in
accordance with the standard practice of Employer, as defined by it from time to
time. Benefits presently anticipated include fully paid, standard Employer
provided health insurance for the Employee, and a fifty percent (50%) copayment
of health insurance premiums under the standard Employer provided policy for
dependent members of Employee's family. No other benefits are offered at the
time of entering into this contract. Employer may chose to offer other benefits
to Employee from time to time.
(d.) VACATIONS AND HOLIDAYS. Employee shall be entitled to paid vacation
of ten (l0) work days, and in addition shall be entitled to take off from work
during all designated federal holidays with pay.
(e.) EXPENSE ACCOUNT. Employee shall be entitled to reimbursement for
documented business and travel expenses, of the following nature: air fare,
hotel, meals, taxi, and entertainment where such expenses entitle the Employer
to a tax deduction upon reimbursement. Employee shall be required to submit a
monthly statement of reimbursable expenses for approval by such person or group
as determined by the Board of Directors of Employer. Such statement shall
include a copy of the expense receipt, a statement of business purpose, and
amount reimbursable under this Agreement.
3. TERM.
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This Agreement shall provide for a term of Three Years, terminable at any
time by either the Employer or the Employee. This Agreement shall be
interpreted to provide a defined contract of employment for a specific or of any
specific term. Should the Employee be dismissed "for cause" under this
Agreement, all payments due and accruing to Employee shall be payable.
Nonetheless, the provisions of Articles 5 and 6 related to Proprietary
Information and Non-circumvention shall survive termination of this agreement
and continue for such terms as provided therein.
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4. DUTIES AND EXTENT OF SERVICES.
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The Employee is engaged to perform work as President and Chief Operating
Officer of Employer. Employee shall report to the Board of Directors of
Employer.
(a.) GENERAL DUTIES. The precise duties or services to be performed by
Employee are as set forth in the Corporate Bylaws of Employer, and as may be
extended or curtailed, from time to time, at the direction of the President of
the Employer. The Employee shall devote the majority of Employee's workday,
attention and energies to the business of Employer, and shall assume and perform
such further reasonable responsibilities and duties as may be assigned to him
from time to time by Employer. Employee is management, and shall have no set
working hours. Employee will endeavor to be available at such times as
required by Employer for consultations, demonstrations, etc.
(b.) CONFLICTING EMPLOYMENT. Employee shall be able to perform additional
employment duties during the term of this Agreement. For purposes of this
covenant, "employment" shall mean provision of services similar in any manner to
those provided by Employee to Employer, to any other person or entity, whether
or not for compensation. Such outside work shall include the use of or relate to
Proprietary Information provided by Employer to Employee.
(c.) REPORTING. Employee shall prepare weekly reports directed to such
person as Employer shall specify, which define the work performed by Employee
during each preceding week. It is not intended that these reports be a
timesheet, but shall specify actual accomplishments of Employee. Such reports
shall specify progress, directions undertaken, financial transactions reviewed
or created, new contacts, and any other significant developments in the work of
Employee. Employer may specify a different reporting interval other than weekly
for such reports.
5. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
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The Employee agrees, during the term of employment and forever thereafter,
except as provided in Article 7 of this Agreement, to keep confidential all
information provided by Employer or learned as a result of this employment
(hereinafter collectively referred to as "Proprietary Information"), AND not to
release, use, or disclose it except with the prior written permission of
Employer, specifically as follows:
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"Proprietary Information" includes, inter alia, data and material relating
to any customer, vendor, licenser, licensee, or other parties transacting
business with Employer, information on deal structure, accounting, scientific or
technical data, information related to regulatory clearances of products or
securities, analyst compilations, forecasts, studies and other documents,
including those prepared by Employee or any other employees, independent
contractors, agents and representatives, or any other person or entity, which
contain or otherwise reflect such "Proprietary Information".
(a.) The Proprietary Information will be kept confidential and shall not
be disclosed, except as required by law without the prior written consent of the
Company. Disclosure includes the information being made available to a
non-party to this Agreement by Employee in any matter whatsoever, in whole or in
part, and such Proprietary Information shall not be used by Employee other than
in connection with the Employment.
(b.) Proprietary Information shall not include any information which: (i)
was already of written record in Employee's files on a non-confidential basis
prior to disclosure to Employee by Company or anyone in privity with Company;
(If Employee intends to rely upon this exemption, he shall within 24 hours of
any disclosure of Proprietary Information by Employer to him, provide Employer
copies of such written record in his personal files, including the date
obtained.) or (ii) at the time of disclosure to Employee, was generally
available to the public without the performance of work necessary to extract
such information from the unlimited environment of public information from which
it may be obtained; or (iii) becomes available to Employee, after termination of
Employment, in writing on a non-confidential basis from a third party, provided
that such third party is not breaching any legal, contractual or fiduciary
obligation to the Company or any other entity. In the event that such
Proprietary Information was provided to Employee by such third party breaching a
duty to Company as provided herein, Employee agrees not to further use or
disclose such Proprietary Information, but Employee will have no other liability
with respect to USE of such Proprietary Information.
(c.) Proprietary Information is being provided to Employee solely for the
purpose of his performance under this Agreement.
(d.) In addition to requirements of nondisclosure of Proprietary
Information, without Company's prior written consent, (except as required by law
- as discussed in Subpart f, hereinbelow), Employee will not disclose to any
Person (whether an individual, corporation, government body or agency, or any
other entity) the fact that (i.) Proprietary Information has been made
available; (ii.) that discussions or negotiations are taking place concerning
any business of the Company, including the terms and conditions, or other facts
with respect to any Transaction; (iii.) that any Proprietary Information has
been developed by Employee or any other person or entity for Company; or (iv.)
that Employee and the Company have entered into this Agreement.
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(e.) Company will keep a written record of the Proprietary Information
furnished to Employee by the Company and all Proprietary Information developed
by Employee. Employee may verify this record at any time. Upon Termination of
Employment, all Proprietary Information, together will all copies thereof,
including any working models, research notes, case histories, books, business
records, scientific instruments, and other items containing or embodying
Confidential Proprietary Information will be returned immediately to the
Company. Employee shall certify in writing, in the form of an affidavit made
under oath, to such return of the Proprietary Information in a form acceptable
to Company. In addition, whenever Employee obtains permission to disclose
Proprietary Information to anyone, such permission and disclosure shall be
recorded in Employee's written record maintained by Employer. Employer and
Employee shall jointly insure that all transactions are accurately recorded.
(f.) In the event that Employee is requested or legally compelled to
disclose any Proprietary Information, Employee (whether or not the
Employer-Employee relationship has been terminated) will provide the Company
written notice as soon as possible, and in no event more than ten (l0) days of
such event, so that the Company may seek an appropriate remedy and/or waive, in
writing, compliance with the provisions of this Agreement. In the event that
Company does not waive compliance with this Agreement, Employee shall be legally
bound not to disclose such information, pending the Company seeking a remedy to
forestall disclosure. The Company will promptly advise Employee of any action
it intends to take. In the event that such remedy, as is desired by the Company,
is not obtained or that the Company waives compliance with the provisions of
this Agreement, Employee will furnish only that portion of the Proprietary
Information which "upon the written opinion of appropriate legal counsel" is
legally required to be produced, and will exercise best efforts to obtain
reliable assurance that confidential treatment will be accorded the Proprietary
Information provided.
(g.) Employee shall promptly advise Company in writing if Employee learns
of any unauthorized use or disclosure of Proprietary Information by any person
or entity.
(h.) Employee shall have no proprietary interest in the work product
developed by Employee or any other employee, independent contractor, or agent of
Employer during the course, and as a result of this Agreement and Employee
expressly agrees to assign all rights, title and interest to any trade secrets
or other proprietary rights (including patents, or other intellectual property
rights) developed as a result of this Agreement to Company. Employee agrees
to execute appropriate assignments upon request of Company.
(i.) Transmittal of Proprietary Information by Employer to Employee may be
made in oral or written form. If in writing, such transmittal shall bear the
word "Confidential". Any copies or reproductions shall bear the proprietary
notices contained in the original.
(j.) Proprietary Information shall remain confidential for an indefinite
term as provided in Article 7.
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6. NON-CIRCUMVENTION.
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If this Employment Agreement terminates for any reason, Employee agrees for
such times as are specified herein not to have any business dealings whatsoever,
either directly or indirectly or through associates with any customer, source,
technical consultant, agent, associate, or client of the Company or its
subsidiaries or any person or firm with whom Employee has made contact in
connection with his activities for the Company (hereinafter "Introduced
Entities").
With respect to such Introduced Entities which Employee may have knowledge
as a result of the Employee-Employer relationship made possible by this
Agreement, and in addition to the requirements of Article 5, the Employee:
(a.) will keep in strictest confidence, both during the term of this
Agreement and subsequent to termination of this Agreement, and will not during
the term of this Agreement or thereafter disclose or divulge to any person, firm
or corporation, or use directly or indirectly, for his own benefit or the
benefit of others, any information which in good faith and good conscience ought
to be treated as confidential information including, without limitation,
information relating to the technical or business aspects developed by the
Company, including, inter alia, information as to sources of, and arrangements
for, goods and services supplied to customers or clients of the Company,
submission and proposal procedures of the Company, customer or contact lists or
any other confidential information or trade secrets respecting the business or
affairs of the Company which Employee may acquire or develop in connection with
or as a result of the performance of his services hereunder.
(b.) agrees to the following additional restrictions upon Employee's
transaction of any, other, present and future, related or non-related business
with Introduced Entities. The nature of the information provided by Company to
him, requires Employee to work, in many cases, directly with the Introduced
Entities, including those named or disclosed in Proprietary Information.
Employer and Employee jointly agree that work performed by Employee for Employer
is such that Employee would not have otherwise known about such Introduced
Entities", which he has met as a result of the Employment relationships. This
does not include persons or entities of which Employee already had knowledge.
It is jointly agreed that such relationships are Proprietary Information, and
not subject to utilization by Employee during the course of this Agreement and
for a reasonable term as provided herein thereafter, as follows:
(i.) Employee agrees not to enter into any relationship with an
Introduced Entity. Employee irrevocably and unconditionally agrees that all
such relationships (including deals, agreements, employment, or any other
relationship) involving Proprietary Information or with any Introduced Entities
which result from any Proprietary Information provided under this Agreement or
performance by Employee under this Agreement, are barred. Employee shall not
circumvent Company by entering into or reaching any agreement between himself
(or any related entity) and any Introduced Entity, except as permitted by this
Agreement.
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(ii.) Such restrictions upon non-circumvention shall continue for Two (2)
years from the date hereof if the relationship with the Introduced Entity does
not involve any Proprietary Information. If such relationship involves
Proprietary Information, including the introduction having been made as a result
of disclosure of the Introduced Entity as part of the content of Proprietary
Information, the restrictions shall continue for an indefinite term as provided
in Article 7.
(iii.) Employee specifically represents that he possesses sufficient
knowledge and ability so that compliance with the provisions of this article
will not effectively prohibit him from obtaining other employment should this
Agreement terminate.
In the event of an actual or threatened breach by Employee of the
provisions of this Article, Employer shall be entitled to injunctive relief
restraining the Employee from the breach or threatened breach, however, nothing
herein shall be construed as prohibiting Employer from pursuing any other
remedies available for such breach or threatened breach, including the recovery
of damages from Employee.
7. TERM FOR NONDISCLOSURE.
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This Article shall survive Termination of this Agreement. Employer and
Employee agree that Proprietary Information is a valuable resource owned by
Employer. The confidentiality of such resource must be protected beyond the term
of Employment of Employee. It is agreed that Employee shall be obligated to
keep Proprietary Information confidential as provided in Articles 5 and 6
herein, until one of the following occurs:
(a.) Employer notifies Employee in writing that such Proprietary
Information is no longer confidential.
(b.) Such Proprietary Information is disclosed in writing in a public,
non-confidential disclosure, and then only to the extent of the disclosure made,
and to the extent that such disclosure is not made as a breach of any agreement
or obligation with Employer. If such public disclosure relates to a requirement
of non-circumvention as provided in Article 6 of this Agreement, it shall NOT be
sufficient for the term to run under this Article, that the public disclosure
details business between Company and such Introduced Entity.
8. WARRANTY.
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Employee acknowledges and agrees that any and all Proprietary Information
is provided without any representation or warranty, expressed or implied, as to
the accuracy or completeness and that the Company expressly disclaims any and
all liability that may be based on the information or any errors therein or
omissions therefrom. Employee agrees that only those representations and
warranties made to Employee in writing by the Company in any executed
definitive agreement shall have any legal effect.
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9. CONSIDERATION.
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Employee acknowledges receipt of good and sufficient consideration to make
this a binding agreement, which consideration is as follows: (i.) Payment of
Ten Dollars ($l0.00) in cash, receipt of which is hereby acknowledged, and (ii.)
The payment from time to time of wages and such benefits (as provided in Article
2) which at the discretion of the Employer may be provided (however, failure to
pay wages and fail-ure to provide benefits shall not be considered to be a
failure of consideration or inadequate consideration, provided at least one pay
period of wages is paid by Employer to Employee), and (iii.) The covenants of
Employer, including the contractual requirement of indemnification, made herein
to Employee. By signing this Agreement, Employee submits that the agreed
consideration is good, sufficient and binding upon Employee for this to be a
good and valid agreement.
10. INDEMNIFICATION.
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Employer, at its own expense, shall defend, indemnify and hold Employee
harmless from any claim, demand, cause of action, debt or liability (including
attorneys' fees) to the extent it is based on a claim that Employee in the
course of this Agreement, infringed or violated the patent of a third party,
provided Company is notified promptly of such claim and provided that such claim
is based upon the Proprietary Information provided by Company. Company shall
have the right to control the defense in any such action and to enter into a
stipulation of discontinuance and settlement of such claim in its discretion.
11. STANDARD OF CONDUCT.
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Any work performed by Employee under this Agreement is as an Employee of
the Company. Employee is authorized to negotiate for Company as directed by the
Board of Directors of Company. Employee may sign agreements for Company as
directed by its Board of Directors. It is the intention of the parties to at
all times conduct themselves, both with respect to activities under this
Agreement, and their respective business activities generally, in compliance
with all applicable federal and state laws. The mutual interests of both
parties to this Agreement require that both parties act in good faith to fulfill
the intent and purpose of this Agreement.
12. INJUNCTIVE RELIEF.
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Employee acknowledges that the use or disclosure of the Proprietary
Information in a manner inconsistent with this Agreement will cause Company
irreparable damage for which the remedies available at law would be inadequate
to protect the Company. As such the Company shall have the right to equitable
and injunctive relief to prevent the unauthorized use or disclosure, and (in
addition to such equity relief) to such damages as are occasioned by such
unauthorized use or disclosure. Employee agrees in advance NOT to object to
the granting of equitable relief (including injunctions and specific
performance) in the Company's, favor WITHOUT any proof by Company of actual
damages and WITHOUT the posting of any bond. The aforementioned remedies are in
addition to all other remedies available to the Company.
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Employee hereby irrevocably and unconditionally consents and submits to the
exclusive jurisdiction of the courts of the State of Texas located in the City
of Houston, Texas for any actions, suits or proceedings arising out of or
relating to this Agreement or any Transaction contemplated hereby, and Em-ployee
agrees NOT to commence any action, suit or proceeding relating thereto except in
such a court. Employee agrees that service of any process, summons, notice or
document by U.S. certified mail, postage prepaid, to your address set forth
hereinbelow shall be effective service of process for commencement or
maintenance of any proceeding brought against Employee in any such court.
13. GENERAL PROVISIONS.
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13.1 NO WAIVER. Employee's obligation(s) as set forth in this Agreement
may be waived, in whole or in part, by Employer. To be effective, a waiver by
the Company must be in writing, shall specifically refer to this Agreement and
the obligation being waived, and must be executed by an executive officer of
the Company, A waiver on one occasion will not be deemed a waiver of the same or
any other occasions or on any future occasion. It is further understood and
agreed that no failure or delay by Employer in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise preclude any other or further exercise of any right,
power or privilege hereunder.
13.2 NOTICES. Any notice hereby required or permitted to be given shall be
sufficient if in writing and mailed by registered or certified mail, postage
prepaid, to either party at the address of such party set forth below or at such
other address as shall have been designated by written notice by such
party to the other party.
Initially such notices shall be sent as follows:
If by Employer to:
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If by Employee to:
▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairperson
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13.3 ENTIRE CONTRACT.
This Agreement shall constitute the entire contract between the parties and
supersedes all existing agreements between them, whether oral or written, with
respect to the subject matter hereof. No change, modification or amendment of
this Agreement, which is to be binding upon Employer, shall be of any effect
unless in writing signed by the Employee and by the Authorized Officer of
Employer.
13.4 GOVERNING LAW.
This agreement shall be governed by the laws of the State of Texas, and
without regard to any principles of conflicts of laws, the state (not federal)
courts of the State of Texas shall have jurisdiction and venue over
controversies concerning interpretation of this Agreement. Each party agrees to
be solely responsible for any legal fees incurred by it in connection with
negotiation and execution of this Agreement, and represents that it owes no
commission or other fee, including any employment agency fee, to any other
entity for bringing about or introduction of parties to this Agreement.
13.5 SEVERABILITY.
Should any provision of this Agreement not be enforceable in any
jurisdiction, the remainder of the Agreement shall not be affected thereby, and
this Agreement shall be interpreted as though the non-enforceable part was not
contained herein.
13.6 ASSIGNMENT.
This Agreement is not assignable by Employee, because Employer is
contracting for the personal work of the Employee. Employer may assign this
Agreement to another entity. Upon assignment, Employer shall notify Employee in
writing.
Signed in Duplicate by the Parties hereto.
EMPLOYEE: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
6/1/99 /s/▇▇▇▇ ▇▇▇▇▇▇
DATED: ----------- By:-----------------------------
Individually
EMPLOYER: ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
6/1/99 /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
DATED:____________ By:____________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairperson
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