CHIEF TECHNOLOGY OFFICER SERVICES AGREEMENT
CHIEF
TECHNOLOGY OFFICER
SERVICES
AGREEMENT
CHIEF
TECHNOLOGY OFFICER SERVICES AGREEMENT, dated this 10th day of July, 2008 (this
“Agreement”),
by
and between 4C
Controls Inc.,
(the
“Company”), and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Executive”).
WHEREAS,
the Company desires to engage the Executive to serve the Company as the Chief
Technology Officer and the Executive desires to serve as the Chief Technology
Officer of the Company;
NOW
THEREFORE, in consideration of the premises and the mutual agreements made
herein, the Company and the Executive agree as follows:
1. Services;
Duties.
The
Company hereby engages the Executive to serve as Chief Technology Officer of
the
Company. The Executive shall serve the Company in such capacity for the
“Services
Period”
as
defined in Section 2. The Executive agrees that during the term of his services
hereunder, he shall give his best effort, skill and abilities to promote the
business and interests of the Company and its subsidiaries and affiliates as
requested by the Board of Directors of the Company or a committee of the Board
of Directors to which the Board of Directors has duly delegated authority
thereof (the “Board”).
The
Executive shall devote such time to the services in the capacity of Chief
Technology Officer as the Executive shall deem reasonably necessary. The Company
acknowledges that Executive serves as an Assistant Professor at Politechnico
di
Torino and shall continue such service, therefore the Company agrees that the
services of Executive shall be rendered on a part-time basis.
2. Services
Period.
This
Agreement shall have an initial term of three (3) years to be effective
commencing as of the date hereof and ending on the third anniversary of thereof
(the “Services
Period”).
The
Company or the Executive may terminate this Agreement, with or without cause,
upon ten (10) days notice to the other party.
3. Compensation.
(a) Shares.
In
consideration for services rendered to the Company, the Executive shall be
paid
a one time grant of one million shares of Company common stock par value
$0.00001 per share (the
“Shares”). The officers of the Company shall order delivery of the Shares from
the Company’s transfer agent as of the date of execution hereof and all such
shares as and when issued shall be duly authorized, validly issued,
non-assessable and unrestricted except to the extent provided herein and subject
to any and all applicable laws, rules and regulations pertaining to the transfer
of such Shares. All such Shares shall be deemed to be fully paid as of the
date
of issuance notwithstanding the Term of this Agreement. The Shares shall be
delivered to Executive within ten (10) days of the date of execution of this
Agreement. The Executive may sell or transfer the Shares at any time after
an
initial one-year holding period so long as (1) any such sale is made pursuant
to
an applicable exemption from registration under the U.S. Securities Act of
1933,
as amended (the “Securities Act”), such as Rule 144 if available, or pursuant to
a registration statement which has been declared effective by the U. S.
Securities & Exchange Commission and (2) such sale is made in accordance
with the Company’s Policy Against ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Services
Agreement
(b) Expense
Reimbursement.
The
Executive shall be entitled to reimbursement of reasonable pre-approved
out-of-pocket expenses incurred in connection with travel and matters related
to
the Company's business and affairs if requests thereto are made and written
approval is granted by the Chief Financial Officer of the Company in advance
of
incurring such expenses, in each case as further in accordance with Company
policy as in effect from time to time.
(c) Place
of Services.
The
parties agree that the principal place of services to be rendered to the Company
by Executive shall be in Italy and all compensation shall be paid to Executive
in such jurisdiction.
4. Trade
Secrets.
The
Executive agrees that it is in the Company's legitimate business interest to
restrict Executive’s disclosure or use of Trade Secrets and Confidential
Information relating to the Company or its affiliates as provided herein, and
Executive agrees not to disclose or use the Trade Secrets and/or Confidential
Information relating to the Company or its affiliates for any purpose other
than
in connection with Executive’s performance of his duties to the Company or its
affiliates. For purposes of this Agreement, “Trade
Secrets”
shall
mean all confidential and proprietary information belonging to, or licensed
for
use by, the Company (including prospective client lists, ideas, formulas,
compositions, inventions (whether patentable or unpatentable and whether or
not
reduced to practice), know-how, manufacturing and production processes and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, copyrightable works, financial and
marketing plans and customer and supplier lists and information). For
purposes of this Agreement, “Confidential
Information”
shall
mean all information belonging to, used by, or which is in the possession of
the
Company and relating to the Company’s business or assets specifically including,
but not limited to, information relating to the Company’s products, services,
strategies, pricing, customers, representatives, suppliers, distributors,
technology, finances, employee compensation, computer software and hardware,
inventions, algorithms, developments, in each case to the extent that such
information is not required to be disclosed by applicable law or compelled
to be
disclosed by any governmental authority. Notwithstanding the foregoing, the
terms “Trade
Secrets”
and
“Confidential
Information”
do
not
include information that (i) is or becomes generally available to or known
by
the public (other than as a result of a disclosure by the Executive),
provided,
that
the
source of such information is not known by the Executive to be bound by a
confidentiality agreement with the Company; or (ii) is independently developed
by the Executive without violating this Agreement.
5. Return
of Documents and Property.
Upon
the expiration or termination of the Executive's services to the Company, or
at
any time upon the request of the Company, the Executive (or his heirs or
personal representatives) shall deliver to the Company (a) all documents and
materials (including, without limitation, computer files) containing Trade
Secrets and Confidential Information relating to the business and affairs of
the
Company or its affiliates, and (b) all documents, materials, equipment and
other
property (including, without limitation, computer files, computer programs,
computer operating systems, computers, printers, scanners, pagers, telephones,
credit cards and ID cards) belonging to the Company or its affiliates, which
in
either case are in the possession or under the control of the Executive (or
his
heirs or personal representatives).
2
Services
Agreement
6. Discoveries
and Works.
All
Discoveries and Works made or conceived by the Executive while working on
Company matters which are not subject to intellectual property interests of
any
third parties, that relate to the Company's present or anticipated activities,
or are used or useable by the Company, shall be governed by that certain License
Agreement between the Company and Executive entered into as of even date
herewith. For the purposes of this Section 6, (including the definition of
“Discoveries
and Works”)
the
term “Company”
shall
include the Company and its affiliates. The term “Discoveries
and Works”
includes, by way of example but without limitation, Trade Secrets and other
Confidential Information, patents and patent applications, service marks, and
service ▇▇▇▇ registrations and applications, trade names, copyrights and
copyright registrations and applications.
7. No
Conflicts.
The
Executive has represented and hereby represents to the Company and its
affiliates that the execution, delivery and performance by the Executive of
this
Agreement do not conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under
any
contract, agreement or understanding, whether oral or written, to which the
Executive is a party or of which the Executive is or should be aware and that
there are no restrictions, covenants, agreements or limitations on his right
or
ability to enter into and perform the terms of this Agreement, and agrees to
indemnify and save the Company and its affiliates harmless from any liability,
cost or expense, including attorney’s fees, based upon or arising out of any
such restrictions, covenants, agreements, or limitations that may be found
to
exist. For purposes of this Agreement, “affiliate”
shall
include any subsidiary or strategic alliance partner in the case of the Company,
and any person or entity directly or indirectly controlled by or controlling
the
Company.
8. Non-competition.
Except
as authorized by the Board of Directors, during the Executive’s services to the
Company, Executive will not (except as an officer, director, stockholder,
employee, agent or consultant of the Company or any subsidiary or affiliate
thereof) either directly or indirectly, whether or not for consideration, (i)
in
any way, directly or indirectly, solicit, divert, or take away the business
of
any person who is or was a customer of the Company, or in any manner influence
such person to cease doing business in part or in whole with Company; (ii)
engage in a Competing Business; (iii) except for investments or ownership
in public entities, mutual funds and similar investments, none of which
constitute more than 5% of the ownership or control of such entities, own,
operate, control, finance, manage, advise, be employed by or engaged by, perform
any services for, invest or otherwise become associated in any capacity with
any
person engaged in a Competing Business in the United States; or (iv) engage
in
any practice the purpose or effect of which is to intentionally evade the
provisions of this covenant. For purposes of this section, “Competing
Business”
means
any company or business which is engaged directly or indirectly in any business
carried on or planned to be carried on by the Company or any of its subsidiaries
or affiliates.
3
Services
Agreement
9. Non-Solicitation.
During
the period of Executive’s services to the Company (the “Restricted
Period”),
the
Executive, directly or indirectly, whether for his account or for the account
of
any other individual or entity, shall not solicit or canvas the trade, business
or patronage of, or sell to, any individuals or entities that were either
customers of the Company during the time the Executive provided services to
the
Company, or prospective customers with respect to whom a sales effort,
presentation or proposal was made by the Company or its affiliates, during
the
one year period prior to the termination of the Executive’s services. The
Executive further agrees that during the Restricted Period, he shall not,
directly or indirectly, (i) solicit, induce, enter into any agreement with,
or
attempt to influence any individual who was an employee or consultant of the
Company at any time during the time the Executive provided services to the
Company, to terminate his or her services to the Company or to become employed
by the Executive or any individual or entity by which the Executive is employed
or (ii) interfere in any other way with the employment, or other relationship,
of any employee or consultant of the Company or its affiliates.
10. Enforcement.
The
Executive agrees that any breach of the provisions of this Agreement would
cause
substantial and irreparable harm, not readily ascertainable or compensable
in
terms of money, to the Company for which remedies at law would be inadequate
and
that, in addition to any other remedy to which the Company may be entitled
at
law or in equity, the Company shall be entitled to temporary, preliminary and
other injunctive relief in the event the Executive violates or threatens to
violate the provisions of this Agreement, as well as damages, including, without
limitation consequential damages, and an equitable accounting of all earnings,
profits and benefits arising from such violation, in each case without the
need
to post any security or bond. Nothing herein contained shall be construed as
prohibiting the Company from pursuing, in addition, any other remedies available
to the Company for such breach or threatened breach. A waiver by the Company
of
any breach of any provision hereof shall not operate or be construed as a waiver
of a breach of any other provision of this Agreement or of any subsequent breach
by the Executive.
11. Determinations
by the Company.
All
determinations and calculations with respect to this Agreement shall be made
by
the Board or any committee thereof to which the Board has delegated such
authority, in good faith in accordance with applicable law, the certificate
of
incorporation and by-laws of the Company, in its sole discretion, and shall
be
final, conclusive and binding on all persons, including the Executive and the
personal representative of his estate.
12. Successors
and Assigns.
This
Agreement shall inure to the benefit of and shall be binding upon (i) the
Company, its successors and assigns, and any company with which the Company
may
merge or consolidate or to which the Company may sell substantially all of
its
assets, and (ii) Executive and his executors, administrators, heirs and legal
representatives. Since the Executive’s services are personal and unique in
nature, the Executive may not transfer, sell or otherwise assign his rights,
obligations or benefits under this Agreement.
13. Notices.
Any
notice required or permitted under this Agreement shall be deemed to have been
effectively made or given if in writing and personally delivered, or sent
properly addressed in a sealed envelope postage prepaid by certified or
registered mail, or delivered by a reputable overnight delivery service. Unless
otherwise changed by notice, notice shall be properly addressed to the Executive
if addressed to the address of record then on file with the Company; and if
to
the Company as properly addressed to the Company’s corporate registered office.
4
Services
Agreement
14. Severability.
It is
expressly understood and agreed that although the Company and the Executive
consider the restrictions contained in this Agreement to be reasonable and
necessary for the purpose of preserving the goodwill, proprietary rights and
going concern value of the Company, if a final determination is made by
arbitration or any court having jurisdiction that any provision contained in
this Agreement is invalid, the provisions of this Agreement shall not be
rendered void but shall be deemed amended to apply as to such maximum time
and
territory and to such other extent as such arbitral body or court may determine
or indicate to be reasonable. Alternatively, if the arbitrable body or court
finds that any provision or restriction contained in this Agreement or any
remedy provided herein is unenforceable, and such restriction or remedy cannot
be amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained therein or the
availability of any other remedy. The provisions of this Agreement shall in
no
respect limit or otherwise affect the Executive's obligations under any other
agreements with the Company.
15. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.
16. Effects
of Termination.
Notwithstanding anything to the contrary contained herein, if this Agreement
is
terminated or expires by its terms, the provisions of Sections 4-6 and 9-19
of
this Agreement shall survive and continue in full force and effect.
Notwithstanding termination of this Agreement, the parties shall retain any
and
all rights and remedies of recourse for any breach of this Agreement which
occurred during the Term of this Agreement, including any breach of Section
8.
17. Arbitration.
All
disputes and controversies arising out of or relating to this Agreement shall
be
finally settled and binding under the Rules of International Commercial Dispute
Resolution of the American Arbitration Association (“ICDR”). The place of
arbitration shall be New York. The Arbitration shall be conducted in English
by
three (3) arbitrators appointed in accordance with the ICDR rules. Any award,
verdict or settlement issued under such arbitration may be entered by any party
for order of enforcement by any court of competent jurisdiction. The arbitrator
shall have no power to take interim measures he or she deems necessary,
including injunctive relief and measures for the protection or conservation
of
property.
|
18.
|
U.S.
Securities Laws Compliance - Regulation S Representations.
|
(a) The
Executive understands and acknowledges that the Shares have not been registered
under the Securities Act and are being offered in reliance upon the exemptions
provided in Regulation S of the Securities Act and the Rules and Regulations
promulgated thereunder. Accordingly, the Shares may not be offered or sold
in
the U.S. or to U.S. persons (as such term is used in Regulation S) unless the
securities are registered under the Securities Act, or an exemption for the
regulation requirements is available. Furthermore, hedging transactions
involving the Shares may not be conducted unless in compliance with the
Securities Act.
5
Services
Agreement
(b) The
Executive acknowledges and agrees that the Company shall, and shall instruct
its
transfer agent to, refuse to register any transfer of the Common Stock issued
hereunder, which are not made in accordance with the provisions of Regulation
S,
pursuant to registration under the Securities Act or pursuant to an available
exemption from registration.
(c) "Restricted
Shares" means (a) the Shares and (b) any other shares of capital stock of the
Company issued in respect of such shares (as a result of stock splits, stock
dividends, reclassifications, recapitalizations or similar events); provided,
however, that shares of Common Stock which are Restricted Shares shall cease
to
be Restricted Shares (x) upon any sale pursuant to a registration statement
under the Securities Act, Section 4(1) of the Securities Act or Rule 144 under
the Securities Act or (y) at such time as they become eligible for sale under
Rule 144(k) under the Securities Act.
(d) Restricted
Shares shall not be sold or transferred unless either (i) they first shall
have
been registered under the Securities Act, or (ii) such sale or transfer is
exempt from the registration requirements of the Securities Act.
(e) Each
certificate representing the Shares upon issuance to the Executive shall bear
a
legend substantially in the following form:
THE
SECURITY OR SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD TO ANY PERSON EXCEPT
AS
SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT: (1) IT
WILL
NOT RESELL OR OTHERWISE TRANSFER THE SHARES EVIDENCED HEREBY EXCEPT (A) IN
AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S OR
(B)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR ANOTHER THEN AVAILABLE EXEMPTION UNDER THE
SECURITIES ACT AND STATE SECURITIES LAWS OR, (C) IN A TRANSACTION THAT DOES
NOT
REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE LAWS,
OR
(D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER
THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER); (2) PRIOR TO ANY SUCH TRANSFER, IT WILL FURNISH TO THE TRANSFER
AGENT
FOR THE COMMON STOCK SUCH CERTIFICATIONS, LEGAL OPINIONS, OR OTHER INFORMATION
AS TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR STATE SECURITIES LAWS; AND
(3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY
IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. FURTHERMORE,
HEDGING TRANSACTIONS INVOLVING THE SECURITIES EVIDENCED HEREBY MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT.
6
Services
Agreement
The
foregoing legend shall be removed from the certificates representing any
Restricted Shares, at the request of the holder thereof, at such time as they
become eligible for resale under Regulation S or pursuant to Rule 144 under
the
Securities Act.
(f) The
Executive makes the following special representations and warranties to the
Company contained herein with the express intent that the same may be relied
upon by the Company for purposes of determining the compliance with Regulation
S
promulgated under the Securities Act:
|
First,
|
The
Executive did not receive the offer for the Shares (the “Offer”), nor was
he, she or it solicited to purchase the Shares, in the United States;
that
this Agreement has not been executed or delivered by the Executive
in the
United States, and neither the Executive nor any person acting on
behalf
of the Executive has engaged, directly or indirectly, in any negotiations
with respect to the Offer or this Agreement in the United
States;
|
|
Second,
|
The
Executive is not a U.S. person (i.e., (i) not an individual resident
in
the U.S.; (ii) a partnership or corporation organized or incorporated
in
the United States; (iii) an estate of which any executor or administrator
is a U.S. person; (iv) a trust of which any trustee is a U.S. person;
(v)
a dealer holding an account for a customer; (vi) an agency or branch
of a
foreign entity located in the U.S.; or (vii) a partnership or corporation
(A) organized or incorporated under the Laws of any foreign jurisdiction
and (B) formed by a U.S. person principally for the purpose of investing
in securities not registered under the Securities Act and is not
acquiring
the Shares for the account or benefit of a U.S.
person;
|
|
Third,
|
The
Executive is not purchasing the Shares as a result of or subsequent
to (i)
any advertisement, article, notice or other communication published
in any
newspaper, magazine or other publication or broadcast over television
or
radio in the U.S.; (ii) any promotional seminar or meeting in the
U.S., or
(iii) any solicitation by a person not previously known to him or
it in
connection with investments in securities generally;
and
|
|
Fourth,
|
The
Executive expressly acknowledges that the Shares have not been registered
under the Securities Act or under any U.S. state securities’ laws and that
the Executive expressly agrees to transfer his, her or its Shares
in the
U.S. or to, or for the account or benefit of, U.S. persons only if
(i) the
Shares are duly registered under the Securities Act and all applicable
state securities Laws; or (ii) there is an exemption from registration
under the Securities Act, including any exemption from the registration
requirements of the Securities Act which may be available pursuant
to Rule
903 or Rule 904 under Regulation S promulgated under the Securities
Act,
and all applicable state securities Laws; that prior to any such
transfer
the Company may require, as a condition affecting a transfer of the
Shares, an opinion of counsel in form and substance satisfactory
to the
Company as to the registration or exemption therefrom under the Securities
Act and applicable state securities Laws; that the Company is under
no
obligation to register the Shares under the Securities Act or any
applicable state securities Laws on its or his or her behalf or to
assist
it or him or her in complying with any exemption from such
registration;
|
7
Services
Agreement
|
Fifth,
|
Except
as distributed by Executive in accordance with the requirements and
provisions of Rule 903 of Regulation S (e.g., the Shares may be allocated
and distributed to Executive’s managed accounts so long as such
distribution is made by Executive in the manner specified by Rule
903),
the Shares will be acquired solely for the account of the Executive,
for
investment purposes only, and not with a view to, or for sale in
connection with, any distribution thereof and with no present intention
of
distributing or reselling any part of the
Shares.
|
|
Sixth,
|
The
Executive agrees not to sell, pledge, transfer, dispose of, or otherwise
deal with or engage in hedging transactions involving, his or her
Shares
or any portion thereof except as otherwise permitted herein, unless
and
until counsel for the Company shall have determined that the intended
disposition or action is permissible and does not violate the Securities
Act or any applicable state securities Laws, or the rules and regulations
thereunder.
|
|
Seventh,
|
The
Executive jurisdiction of principal place of business and corporate
domicile, as set forth on the signature page hereto with respect
to
notices under this Agreement, is true and
correct.
|
|
Eighth,
|
The
Executive hereby states that he/she is acquainted with the requirements
of
Section 13(d) of the Exchange Act and the rules and regulations issued
thereunder. The Executive understands that, as a result of its acquisition
of Shares, and in order to comply with Section 13(d) and the rules
and
regulations issued thereunder, Executive may be required to file
a
Schedule 13D and hereby agrees to make such filing if so
required.
|
8
Services
Agreement
19. Miscellaneous.
This
Agreement constitutes the entire agreement, and supersedes all prior agreements,
of the parties hereto relating to the subject matter hereof, and there are
no
written or oral terms or representations made by either party other than those
contained herein. Any and all taxes applicable to the compensation granted
to
the Executive hereunder shall be at the sole cost and charge of the Executive
and the Executive shall indemnify and hold harmless the Company with respect
to
any and all taxes due and payable by Executive in such regard. This Agreement
cannot be modified, altered or amended except by a writing signed by both
parties. No waiver by either party of any provision or condition of this
Agreement at any time shall be deemed a waiver of such provision or condition
at
any prior or subsequent time or of any other provision or condition at the
same
or any prior or subsequent time.
[Signature
Page Follows]
9
Services
Agreement
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
|
|
EXECUTIVE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
||
|
|
Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
THE
COMPANY: 4C CONTROLS INC.
|
|
|
|
|
By:
|
 |
|
|
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
|
|
|
|
|
Title:
Corporate Secretary
|
|
|
10