Harry Friske 21623 Moortown Circle Katy, TX 77450 August 12, 2011 Dear Harry:
Exhibit 10.8
Xxxxx Xxxxxx
00000 Xxxxxxxx Xxxxxx
Xxxx, XX 00000
00000 Xxxxxxxx Xxxxxx
Xxxx, XX 00000
August 12, 2011
Dear Xxxxx:
Xxxxx Energy Inc. (the “Company”) is pleased to offer you the position of Controller. This
letter sets forth the terms of your employment (“Agreement”).
Previous Employment: The Company and the Employee acknowledge that under the letter
agreement dated January 1, 2010, and as amended on March 17, 2011, the Company offered, and the
Employee accepted, the position of Chief Financial Officer (hereafter, the “Prior Agreement”). For
avoidance of doubt, this Agreement amends and supersedes the Prior Agreement. By accepting this
offer, Employee voluntarily submits his resignation as Chief Financial Officer (“CFO”) effective
August 22nd 2011, and the Company accepts such resignation, for all offices and titles.
Employee further confirms that beginning on August 22, 2011, the terms and conditions of his
employment shall be those terms and conditions stated in this Agreement.
Start Date and Position: You will start on August 22nd, 2011 and will
report to the CFO of the Company. Please note, by signing this letter you confirm to the Company
that there are no contractual or other legal impediments that would prohibit you from taking this
position or performing the duties of Controller for the Company. However, the Company acknowledges
and accepts that Employee provides administrative support services to an unrelated third party,
requiring approximately 4 hours per month for 10 months per year, and approximately 80 hours
during the combined months of December, January and February. This arrangement is acceptable to
the Company as long as the business of the unrelated third party is not in conflict with, or
competition, to that of the Company. In the event that such conflict ever arises in the future,
Employee has the obligation to immediately and in writing notify the CEO of the Company of the
fact and details of the conflict.
Compensation: You will be paid a salary of $200,000 annually, less applicable taxes,
deductions and withholding (“Base Salary”), payable on the Company’s regular payroll dates.
Performance Bonus: In recognition of your contribution and commitment to Glori’s IPO
preparation, you will be awarded a one-time performance bonus in the amount of $15,000 on the
first to occur of (i) 15th February 2012 (ii) successful completion of SEC S1
registration process, or (iii) termination without cause. This bonus is separate an in addition to
any other management incentive bonus that you may be eligible for.
Employee Benefits: You will be eligible to participate in all present and future
medical, dental, vision, accident and disability plans, and all similar benefits made available
generally to employees of the Company.
Paid Vacation: You will be awarded 4 weeks of paid vacation determined on a calendar
year basis, commencing January 1, 2012 and prorated for any period of employment thereafter. The
Company acknowledges that the Employee has worked for the period from January 1, 2011 through
August 21, 2011, under an employment arrangement awarding 2 weeks of paid vacation, and that the
Employee has taken no vacation during this period. Accordingly, and for avoidance of doubt, the
Employee is awarded 12 days of paid vacation from August 22, 2011 through December 31, 2011.
Stock: The Company specifically extends on an uninterrupted basis the grant and vesting terms
of previously awarded options to buy common stock under date of October 15, 2010 in the amount of
91,074 common shares at the exercise price of $.078 per option.
Continuation of Certain Offices and Titles: Employee is currently a Director of Xxxxx
Canada Ltd. Employee agrees to retain this title, without compensation, until requested to resign
this position, at which time he agrees to promptly submit his resignation.
Confidentiality,
Proprietary Information and Inventions Assignment, and Non-Compete
Agreement: The Confidentiality, Propriety Information and Inventions Assignment and
Non-Compete Agreements previously executed remain in full force and effect and uninterrupted.
Employment Relationship:
1. At-Will Employment. Employment with the Company is for no specific period of time. Your
employment with the Company will be “at will,” meaning that either you or the Company may
terminate your employment at any time and for any reason, with or without cause. This is the full
and complete agreement between you and the Company on this term, and this agreement can only be
amended in writing signed by the CEO of the Company.
2. Involuntary Termination. Despite our at-will relationship, if your employment is
terminated by the Company without “Cause” (as defined below) then, contingent upon your executing
a full and complete general release of and covenant not to xxx the Company, you shall be entitled
the following severance: One half of continued monthly Base Salary and continuation of employee
benefits for a period of six months, which amounts shall be paid on the regular payroll dates.
3.
Termination for Cause. If the Company terminates your employment for Cause, then (i) the
Company’s obligations under this Letter Agreement shall
immediately cease, and (ii) you shall not
be entitled to receive payment of, and the Company shall have no obligation to pay, any severance
or similar compensation attributable to such termination, other than the portion of your Base
Salary then earned but unpaid.
4. Definitions.
“Cause” shall mean (i) the commission of any act of fraud or embezzlement by you; (ii) any
unauthorized use or disclosure by you of any material confidential information or trade secrets of
the Company; (iii) your indictment for, conviction of, or plea of no contest with respect to any
felony violation or any crime of moral turpitude or dishonesty; (iv) your unauthorized absence from
work for reasons other than illness or legally protected leave of absence; (v) your substance abuse
or other misconduct that in any manner that materially interferes with the performance of your
duties on behalf of the Company; (vi) any failure or refusal by you to perform your duties in an
acceptable manner or to follow the lawful and proper directives of the CFO that are within the
scope of your duties in each case after a reasonable notice and cure period not less than 15 days;
or (vii) any other misconduct by you that adversely affects the business or affairs of the Company
after a reasonable notice and cure period not less than 15 days.
Withholding Taxes: All forms of compensation referred to in this letter are subject
to applicable withholding and payroll taxes.
Tax and Legal Advice: By signing this letter, you acknowledge that you have had an
opportunity to consult with legal counsel and tax and other advisors regarding this Letter
Agreement.
Severability: If any provision of this Letter Agreement is held illegal, invalid or
unenforceable to any extent, this Letter Agreement shall be construed and enforced as if such
provision was never a part of this Letter Agreement and the remaining provision of this Letter
Agreement shall remain in full force and effect and shall not be affected by illegal, invalid or
unenforceable provision or by their severance.
Entire Agreement: If you wish to accept this offer, please sign and date this letter
below where indicated. This Letter Agreement supersedes all prior discussions and agreements,
whether written, oral or implied, among the parties with respect to the subject matter hereof and
contain the sole and entire agreement between you and the Company with respect to the subject
matter herein. You further represent, warrant, and agree that, except as expressly set forth
herein, no representations or promises, whether expressed, implied or otherwise, of any kind,
nature or description whatsoever have been made to you by the Company or relied upon by you as an
inducement to entering into this Letter Agreement.
Proof of Right to Work: As required by law, your employment with the Company is also
contingent upon your providing legal proof of your identity and authorization to work in the
United States.
Controlling Law: This Letter Agreement shall be construed and interpreted in
accordance with the laws of the State of Texas without giving effect to conflict of law
principles. With respect to any suit, action, or other proceeding arising from (or relating to)
this Letter Agreement or your employment, you and the Company irrevocably agree to the exclusive
personal jurisdiction and venue of any shared stated federal or Texas state court within Xxxxxx
County, Texas.
Successors or Assigns: This Letter Agreement shall inure to the benefit of any
successor or assigns of the Company; you shall not be entitled to assign any of your rights or
obligations under this Letter Agreement. The terms and provision of this Letter Agreement are
intended solely for the benefit of each party hereto and the Company’s successors or assigns, and
it is not the intention of the parties to confer third-party beneficiary rights upon any other
person.
Sincerely,
Stuart Page, CEO
/s/ Stuart Page
I accept this Letter Agreement: |
||
/s/ Xxxxx Xxxxxx |
||
Date: 8/22/2011 |
CONFIDENTIALITY, PROPRIETARY INFORMATION AND
INVENTIONS ASSIGNMENT, AND NON-COMPETE AGREEMENT
INVENTIONS ASSIGNMENT, AND NON-COMPETE AGREEMENT
This Confidentiality,
Proprietary Information and Inventions Assignment, and Non-Compete
Agreement (the “Confidentiality Agreement” or “Agreement”) is
entered into between Xxxxx Xxxxxx
(“I” or “me”) and Xxxxx Oil Limited, a Delaware corporation
(the “Company”), is entered into as of
January 1, 2010.
In consideration of the following: (1) my employment by the Company; (2) the Company’s
initial and continued disclosure to me of certain Proprietary Information (as defined below); (3)
the initial and continued provision of specialized training by the Company to me; (4) any
compensation now and/or hereafter paid to me; and (5) for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, I hereby agree with the Company as
follows:
1. Definitions:
1.1
The term “Cause” shall mean (i) my commission of any act of personal dishonesty, fraud or
misrepresentation which was intended to or resulted in substantial gain or personal enrichment for
me at the expense of the Company; (ii) my conviction of, or plea of nolo contendere or guilty to a
felony or any other crime which involves moral turpitude; (iii) my breach of this Agreement; or
(iv) gross misconduct in the performance of my duties.
1.2
The term “Corporate Transaction” shall mean a change in ownership or control of the
Company effected through any of the following transactions:
(a) a stockholder-approved merger, consolidation or other reorganization in which securities
representing more than 50% of the total combined voting power of the Company’s outstanding
securities are beneficially owned, directly or indirectly, by a person or persons different from
the person or persons who beneficially owned those securities immediately prior to such
transaction;
(b) a stockholder-approved sale, transfer or other disposition of all or substantially all of
the Company’s assets; or
(c) the acquisition, directly or indirectly, by any person or related group of persons (other
than the Company or a person that directly or indirectly controls, is controlled by, or is under
common control with, the Company), of beneficial ownership (within the meaning of Rule 13-d3 of
the 0000 Xxx) of securities possessing more than 50% of the total combined voting power of the
Company’s outstanding securities from persons other than the Corporation.
In no event shall either of the following be
deemed to constitute a Corporate Transaction: (A) any
public offering of the Company’s securities or (B) the sale by the Company of shares of its
capital stock to investors in bona fide financing transactions.
1.3
The term “Inventions” means discoveries; developments; trade secrets; processes; formulas;
data; lists; software programs; and all other works of authorship, mask works, ideas, concepts,
know-how, designs, and techniques, whether or not any of the foregoing is or are patentable,
copyrightable, or registrable under any intellectual property laws or industrial property laws in
the United States or elsewhere. The term “Inventions” shall not apply to an invention that the
employee developed entirely on his or her own time without using the Company’s resources or
Proprietary Information or trade secret information, unless such inventions relate at the time of
conception or reduction to practice of the invention to (i) the business of the Company, which
shall include but not be limited to Microbial
Confidentiality Agreement
enhanced Oil Recovery and other microbial-based products/services for the oil & gas business (the
“Company Business”) or (ii) actual or demonstrably anticipated research or development of the
Company.
1.4
The term “Proprietary Information” means information owned by the Company or licensed
from third parties regarding (a) research, development, products, services, marketing, selling,
business plans, budgets, unpublished financial statements, licenses, prices, costs, contracts and
other agreements, suppliers, customers, and customer lists; (b) the identity, skills and
compensation of employees, contractors, and consultants; (c) specialized training; and (d)
information related to Inventions owned by the Company or licensed from third parties. Proprietary
Information shall not include material already in the public domain through no action of my own or
actions of a third party not authorized to release such material into the public domain.
1.5
The term “Service” means any period during which I am employed by the Company.
1.6
The term “Third Party Information” means confidential or trade secret information that the
Company may from time to time receive from third parties or information related to Inventions of
third parties, which is subject to a duty on the Company’s part to maintain the confidentiality of
such Third Party Information and to use it only for certain limited purposes. Third Party
Information shall not include material already in the public domain through no action of my own or
actions of a third party not authorized to release such material into the public domain.
2. Nondisclosure.
2.1 I acknowledge that contemporaneously with my execution of this Agreement, the Company is
providing me with access to Proprietary Information (as noted on the attached Exhibit A) and
specialized training. I further acknowledge that throughout my Service the Company will continue
to provide Proprietary Information and specialized training to me. In consideration of the
Company’s provision of Proprietary Information and/or specialized training, I agree that during my
Service and thereafter, pursuant to this agreement (the “Nondisclosure Agreement”), I
will hold in
strictest confidence and will not disclose, discuss, transmit, use, lecture upon, or publish any
Proprietary Information, except as such disclosure, discussion, transmission, use, or publication
may be required in connection with my Service, or unless the Board of Directors of the Company
expressly authorizes such in writing. I also agree that in connection with this Nondisclosure
Agreement, I will also be bound by the provisions of Section 7. I further acknowledge and agree
that the Company’s conduct in providing me with Proprietary Information and specialized training
in exchange for my Nondisclosure Agreement gives rise to the Company’s interest in restraining me
from competing against the Company as set forth in Section 7 (the “Non-Compete
Agreement”), and that my agreement to the Non-Compete Agreement is designed to enforce my
Nondisclosure Agreement.
2.2 At all times during my Service and thereafter, I will hold Third Party Information in the
strictest confidence and will not disclose, discuss, transmit, use, lecture upon, or publish any
Third Party Information, except as such disclosure, discussion, transmission, use, or publication
may be required in connection with my Service, or unless the Board of Directors of the Company
expressly authorizes such in writing. Excluded from this clause items already in the public domain
through no action of my own or actions of a third party not authorized to release such material
into the public domain.
3. Assignment.
3.1
The term “Ownership Rights” means all rights, title and interest (including but not
limited to Intellectual Property Rights) in property, whether that property is tangible or
intangible. The
| Confidentiality Agreement | Page 2 |
term “Intellectual Property Rights” means all intellectual property and industrial property rights
of any kind whatsoever throughout the world, including but not limited to patent rights, copyrights
(including but not limited to mask work rights), trade secret rights, and, if recognized, Moral
Rights (where “Moral Rights” means all rights related to paternity, integrity,
disclosure, and withdrawal). I hereby irrevocably assign to the Company any Ownership Rights I may
have or acquire in any Proprietary Information and acknowledge that all Proprietary Information
shall be the sole property of the Company and that the Company shall be the sole owner of all
Ownership Rights in connection therewith.
3.2 The term “Company Inventions” means all Inventions that (a) relate to the business or
proposed business of the Company and that are discovered, developed, created, conceived, reduced
to practice, made, learned or written by me, either alone or jointly with others, in the course of
my Service; (b) utilize, incorporate or otherwise relate to Proprietary Information; (c) I
discovered, developed, created, conceived, reduced to practice, made, or wrote prior to or outside
the scope of my Service and that I have incorporated into any Inventions owned by or assigned to
the Company and/or its assigns; or (d) are discovered, developed, created, conceived, reduced to
practice, made, or written by me using Company property or equipment. I hereby irrevocably assign
to the Company all my Ownership Rights in and to any and all Company Inventions. All Inventions
made, during the period commencing with the date hereof and terminating one year after termination
of the employment relationship shall be presumed to have been conceived during my employment by
the Company unless I can prove conclusively that it was conceived after the termination of my
employment with the Company.
3.3 I acknowledge and agree that any work of authorship comprising Company Inventions shall
be deemed to be a “work made for hire,” as that term is defined in the United States Copyright Act
(17 U.S.C. § 101 (2000)). To the extent that any such work of authorship may not be deemed to be a
work made for hire, I hereby irrevocably assign all my Ownership Rights in and to such work to the
Company. If any such work of authorship cannot be assigned, I hereby grant to the Company an
exclusive, assignable, irrevocable, perpetual, worldwide, sublicenseable (through one or multiple
tiers), royalty-free, unlimited license to use, reproduce, distribute, create derivative works of,
publicly perform, publicly display and digitally perform and display such work in any media now
known or hereafter known. Outside the scope of my Service, I agree not to (a) modify, adapt,
alter, translate, or create derivative works from any such work of authorship or (b) merge any
such work of authorship with other Inventions. Excluded from this definition are items already in
the public domain through no action of my own or actions of a third party not authorized to
release such material into the public domain. To the extent Moral Rights may not be assignable
under applicable law and to the extent the following is allowed by the laws in the various
countries where Moral Rights exist, I hereby irrevocably waive such Moral Rights and consent to
any action of the Company that would violate such Moral Rights in the
absence of such consent.
3.4 I acknowledge and agree that nothing in this Agreement shall be deemed to grant, by
implication, estoppel or otherwise, (a) a license from the Company to me to make, use, license, or
transfer in any way a Company Invention or (b) a license from the Company to me regarding any of
the Company’s existing or future Ownership Rights.
3.5 For clarity, the assignments in this section shall not apply to any material that the
employee developed entirely on his or her own time without using the company’s resources or
Proprietary Information or trade secret information, unless such materials relate at the time of
conception or reduction to practice of the materials to (i) the business of the company, which
shall include but not be limited to Microbial enhanced Oil Recovery and other microbial-based
products/services for the oil & gas business (the “Company Business”) or (ii) actual or
demonstrably anticipated research or development of the Company.
| Confidentiality Agreement | Page 3 |
4. Enforcement of Rights.
4.1 I will assist the Company in every proper way to obtain and from time to time enforce
Ownership Rights relating to Company Inventions in any and all countries. To that end I will
execute, verify, and deliver such documents and perform such other acts (including appearances as
a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting,
evidencing, sustaining, and enforcing such Ownership Rights and the assignment thereof. In
addition, I will execute, verify, and deliver assignments of such Ownership Rights to the Company.
My obligation to assist the Company with respect to Ownership Rights relating to such Company
Inventions in any and all countries shall continue beyond the termination of my Service, but the
Company shall compensate me at a mutually agreeable reasonable rate plus expenses after such
termination for the time actually spent by me at the Company’s request on such assistance.
4.2 In the event the Company is unable for any reason, after reasonable effort, to secure my
signature on any document needed in connection with the actions specified in the preceding
paragraph, I hereby irrevocably designate and appoint the Company and its assigns duly authorized
officers and agents as my agent and attorney in fact, to act for and in my behalf to execute,
verify, and file any such documents and to do all other lawfully permitted acts to further the
purposes of the preceding paragraph thereon with the same legal force and effect as if executed by
me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, that
I now or may hereafter have for infringement of any Ownership Rights assigned hereunder to the
Company.
5. Obligation to Keep Company Informed.
During my Service, I will promptly disclose to the Company fully and in writing and will hold
in trust for the sole right and benefit of the Company any and all Company Inventions (but to the
extent a Company Invention is based only upon ideas or know-how, then the Company Invention must
be commercially material before it must be disclosed in writing to the Company). In addition,
during the first year after termination of my Service, I will provide the Company with a complete
copy of each patent application and copyright registration application (including but not limited
to any mask work registration application) that is either filed by me or that names me as an
inventor, co-inventor, author, co-author, creator, co-creator, developer, or co-developer. I will
not be obligated to provide such copy until such application becomes public record.
6. Non-Solicitation and Non-Competition.
6.1 During my Service, I will not, directly or indirectly, participate in the ownership,
management, operation, financing or control of, or be employed by or consult for or otherwise render
services to, any person, corporation, firm, or other entity that competes with the Company in the
state of Texas, or in any other state in the United States, in which the business of the Company is
conducted or has been proposed to be conducted, nor shall I engage in any other activities that
conflict with my obligations to the Company. Notwithstanding the foregoing, I am permitted to own
up to 1% of any class of securities of any corporation in competition with the Company that is
traded on a national securities exchange or through NASDAQ.
6.2 During my Service and for a period of two years after my Service is terminated for any
reason, I will not, directly or indirectly, individually or on behalf of any other person, firm,
partnership, corporation or business entity of any type, solicit, assist or in any way encourage
any current employee or consultant of the Company to terminate his or her employment relationship
or consulting relationship with or for the Company, nor will I, directly or indirectly,
individually or on behalf of any other person, firm, partnership, corporation or business entity
that competes with the Company solicit the
| Confidentiality Agreement | Page 4 |
services of any former employee of the Company whose service has been terminated for less
than three (3) months. I acknowledge that these restrictions are fair, reasonable, ancillary to
Section 2.1 of this Agreement, and are required for the protection of the Company, including, but
not limited to, the protection of the goodwill of the Company, the Proprietary Information of the
Company (as provided to me), the Intellectual Property Rights of the Company, the Inventions of
the Company, as well as the business of the Company.
6.3 For a period of (i) nine months after my Service is terminated by Company for Cause or I
resign my employment; or (ii) six months after my Service is terminated by the Company for any
reason other than Cause, I will not, directly or indirectly, individually or on behalf of any
other person, firm, partnership, corporation or business entity of any type, solicit to the
detriment of the Company and/or for the benefit of myself or any competitor of the Company, take
away or attempt to take away, in whole or in part, any Customer of the Company or otherwise
interfere with the Company’s relationship with any Customer, including inducing or attempting to
induce any customer, supplier, vendor or any other person to cease doing business with the Company
for any reason. For purposes of this Section 6(c), “Customer” shall mean prospective, present and
former (within the last twelve months) customers of the Company. I acknowledge that these
restrictions are fair, reasonable, ancillary to Section 2.1 of this Agreement, and are required
for the protection of the Company including, but not limited to, the protection of the goodwill of
the Company, Proprietary Information of the Company (as provided to me), Intellectual Property
Rights of the Company, Inventions of the Company, as well as the business interests of the
Company.
7. Post-Employment
Non-Compete and Notice Agreement.
7.1 I agree that for (i) a nine month period following my resignation if I resign my
employment with the Company (the “Resignation
Non-Compete Period”); or (ii) a nine
month period
following the termination of employment by the Company for Cause (the
“Cause Non-Compete Period”);
or (iii) a six month period following the Company’s terminating my employment for any reason other
than for Cause (the “Termination Non-Compete Period”) except under the circumstances
as described
in this Section 7, I will not accept employment with a competing business of the Company,
whether such competing business competes with the Company directly or indirectly, in the state of
Texas, or in any other State of the United States or any other country in the world where the
Company engages or has plans to engage in business. I also agree that for the same period I will
not participate in the ownership, management, operation, financing or control of, or consult for or
otherwise render services to a competing business. Notwithstanding the foregoing, I am permitted to
own up to 1% of any class of securities of any corporation in competition with the Company that is
traded on a national securities exchange or through NASDAQ. I acknowledge that these restrictions
are fair, reasonable, ancillary to Section 2.1 of this Agreement, and are required for the
protection of the Company, including, but not limited to, the protection of the goodwill of the
Company, Proprietary Information of the Company (as provided to me), Intellectual Property Rights
of the Company, Inventions of the Company, as well as the business interests of the Company.
7.2 During my employment and during either the (i) Resignation Non-Compete Period; the (ii)
Cause Non-Compete Period or the (ii) Termination Non-Compete Period, as applicable, I agree to
provide written notice to either the Company’s Chairman, CEO or President (currently Xxxx Xxxxxxx)
notifying the Company of any employment which I intend to accept or self-employment in which I
intend to engage (the “New Employment Notice”). The New Employment Notice shall
provide the name
of the potential employer and a statement of the general nature of the potential employment or in
the case of self-employment, the business which I intend to engage. I agree to provide the New
Employment Notice at least 14 days prior to the anticipated scheduled commencement of such
employment.
| Confidentiality Agreement | Page 5 |
7.3 The Company agrees that within seven days of receiving such New Employment Notice,
the Company shall provide written notice (the “Non-Compete Election Notice”) to me as
to whether or
not the potential employment noted in the New Employment Notice would constitute a competing
business and whether or not the Company elects to enforce the non-competition covenant of
Section 7(a) herein (the “Non-Compete Covenant”). I understand that in
determining whether
or not it will elect to enforce the Non-Compete Covenant, the Company shall determine, in good
faith, whether or not such enforcement is necessary in order to protect its business interests,
goodwill, Proprietary Information, Intellectual Property Rights and Inventions. If the Company
elects to enforce such Non-Compete Covenant, I agree that I will decline the employment. If the
Company elects to enforce such Non-Compete Covenant and I do not comply with my obligations and
decline the employment, I understand that I will be in breach of this Agreement and will be liable
to the Company for any and all damages to which it may be entitled, including injunctive relief
enjoining me from working for such potential employer. I further understand that if I do not
receive a Non-Compete Election Notice within the required seven days, the Company is not electing
to enforce the Non-Compete Covenant. If the Company does not elect to enforce the Non-Competition
Covenant within the required seven days, it waives its right to do so and it cannot later attempt
to enforce such Non-Competition Covenant.
8. No Improper Use of Materials. I represent and warrant that during my Service I
shall not use or incorporate into any Company Invention any confidential information or trade
secrets of any former employer, any person or entity for whom I provided services, or any other
person or entity, unless I have obtained all consents, licenses, or other rights necessary to
allow me to provide the Company with the assignments and licenses set forth herein. I represent
and warrant that during my Service I shall not improperly use or disclose any confidential or
trade secret information, if any, of any former employer or any other person or entity to whom I
have an obligation of confidentiality, and I will not bring onto the premises of the Company any
unpublished documents or any property belonging to any former employer or any other person or
entity to whom I have an obligation of confidentiality unless expressly consented to in writing by
that former employer, person, or entity. Excluded from this clause are items already in the public
domain through no action of my own or actions of a third party not authorized to release such
material into the public domain.
9. No
Conflicting Obligation. I represent that my performance of all the terms of
this Confidentiality Agreement and my Service does not and will not breach any agreement between
me and any other employer, customer, person or entity. I have not entered into, and I agree I will
not enter into, any agreement either written or oral in conflict herewith.
10. Return of Company Property. When my Service is completed, I will immediately
deliver to the Company all drawings, notes, memoranda, specifications, devices, formulas, and
documents (whether written, printed, or otherwise reproduced or recorded), together with all
copies thereof, and any other material containing or disclosing any Company Inventions, Third
Party Information or Proprietary Information. I will also immediately deliver all Company
property; including but not limited to laptops, pagers, cell phones, corporate credit cards, keys
and/or access cards. I further agree that all property situated on the Company’s premises and
owned, leased, or licensed by the Company, including disks and other storage media, filing
cabinets or other work areas, is subject to inspection by personnel of the Company at any time
with or without notice.
11. Legal and Equitable Remedies. Because my services are personal and unique and
because I will have access to and become acquainted with Proprietary Information, the Company
shall have the right to enforce this Confidentiality Agreement and any of its provisions by
injunction, specific performance, or other equitable relief, without bond and without prejudice to
any other rights and remedies that the Company may have for a breach of this Confidentiality
Agreement.
| Confidentiality Agreement | Page 6 |
12. Authorization to Notify New Employer. I hereby authorize the Company to provide a
written copy of this agreement or to notify in writing any new employer or entity for whom I
provide services about my rights and obligations under this Confidentiality Agreement for two
years following the termination of my Service.
13. Non-disparagement. I agree that I will not make any negative or disparaging
statements or comments, either as fact or as opinion, about the Company, including but not limited
to its employees, officers, directors, shareholders, vendors, products or services, business,
technologies, market position, performance and other similar information concerning the Company.
The Company agrees that its Chief Executive Officers as well as the members of its Board of
Directors will not make any negative or disparaging statements or comments, either as fact or as
opinion, about me. Nothing contained in this paragraph is intended to prevent anyone from
testifying truthfully in any legal proceeding.
14. Confidentiality. I acknowledge and agree that the terms and existence of this
Agreement are strictly confidential and may not be disclosed to anyone except my lawyer, spouse,
financial consultant or as necessary to perform my notification or disclosure obligations
hereunder. Without in any way limiting your agreement that this Agreement is confidential, I
expressly understand that I shall not disclose the existence or content of this Agreement to any
third party, potential employees, employees and former employees of the Company.
15. Notices. Any notices required or permitted hereunder shall be given to the
appropriate party at the party’s last known address. Such notice shall be deemed given upon
personal delivery to the last known address or if sent by certified or registered mail, three days
after the date of mailing.
16. General Provisions.
16.1 Governing Law. This Confidentiality Agreement will be governed by and construed
according to the laws of the State of Texas without regard to conflicts of law principles.
16.2 Exclusive Forum. I hereby irrevocably agree that the exclusive forum for any
suit, action, or other proceeding arising out of or in any way related to this Agreement shall be
in the state or federal courts in Texas, and I agree to the exclusive personal jurisdiction and
venue of any court in Xxxxxx County, Texas and waive any defense thereto.
16.3 Entire Agreement. This Confidentiality Agreement along with the Offer Letter
(collectively, the “Employment Agreements”) supersede all agreements, whether oral or
written, representations or discussions relating to the subject matter hereof and the Employment
Agreements set forth the entire agreement related to the subject matter hereof. No modification of
or amendment to any of the Employment Agreements nor any waiver of any rights under any of the
Employment Agreements, will be effective unless in writing signed by the party to be charged. Any
subsequent change or changes in my duties, salary, or compensation will not affect the validity or
scope of the Employment Agreements.
16.4 Severability. I acknowledge and agree that each agreement and covenant set forth
herein constitutes a separate agreement independently supported by good and adequate consideration
and that each such agreement shall be severable from the other provisions of this Confidentiality
Agreement and shall survive this Confidentiality Agreement. I understand and agree that this
Confidentiality Agreement is to be enforced to the fullest extent permitted by law. Accordingly,
if a court of competent jurisdiction determines that the scope and/or operation of Section
7 of this Agreement is too broad to be enforced as written, the Company and I intend that the
court should reform such
| Confidentiality Agreement | Page 7 |
provision to such narrower scope and/or operation as it determines to be enforceable,
provided, however, that such reformation applies only with respect to the operation of such
provision in the particular jurisdiction with respect to which such determination was made. If,
however, Section 7 of this Agreement is held to be illegal, invalid, or unenforceable
under present or future law, and not subject to reformation, then (i) such provision shall be
fully severable, (ii) this Confidentiality Agreement shall be construed and enforced as if such
provision was never a part of this Confidentiality Agreement, and (iii) the remaining provisions
of this Confidentiality Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid, or unenforceable provision or by its
severance.
16.5 Successors and Assigns. This Confidentiality Agreement will be binding upon my
heirs, executors, administrators, and other legal representatives and will be for the benefit of
the Company, its successors and assigns, except with regard to the non-compete covenants I have
made in Section 7. When there is a Corporate Transaction then the following changes shall
be made to Section 7: upon the closing of a Corporate Transaction, the Resignation
Non-Compete Period shall change from nine months to six months and the Termination Non-Compete
Period shall change from six months to three months. Notwithstanding, I expressly agree that the
Company has the right to assign this Confidentiality Agreement.
16.6 Survival. The provisions of this Confidentiality Agreement shall survive the
termination of my Service for any reason and the assignment of this Confidentiality Agreement by
the Company to any successor in interest or other assignee.
16.7 At-Will Relationship. I agree and understand that my Service is at will, which
means that either I or the Company may terminate the relationship at any time, with or without
prior notice and with or without cause. I further agree and understand that nothing in this
Confidentiality Agreement shall confer any right with respect to continuation of Service, nor
shall it interfere in any way with my right or the Company’s right to terminate my Service at any
time, with or without notice and with or without cause.
16.8 Waiver. No waiver by the Company or Employee of any breach of this
Confidentiality Agreement shall be a waiver of any preceding or succeeding breach. No waiver by
the Company or Employee of any right under this Confidentiality Agreement shall be construed as a
waiver of any other right. Neither the Company nor the Employee shall be required to give notice
to enforce strict adherence to all terms of this Confidentiality Agreement.
16.9 Recovery of Attorney’s Fees. In the event of any litigation arising from or
relating to this Confidentiality Agreement, the prevailing party in such litigation proceedings
shall be entitled to recover, from the non-prevailing party, the prevailing party’s costs and
reasonable attorney’s fees, in addition to all other legal or equitable remedies to which it may
otherwise be entitled.
16.10 Headings. The headings to each section or paragraph of this Confidentiality
Agreement are provided for convenience of reference only and shall have no legal effect in the
interpretation of the terms hereof.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I UNDERSTAND THAT THIS
AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE DURING MY SERVICE, RESTRICTS MY RIGHT TO
DISCLOSE OR USE PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY PERIOD OF SERVICE, AND PROHIBIT
ME FROM COMPETING WITH THE COMPANY UNDER CIRCUMSTANCES NOTED IN THIS AGREEMENT AND/OR
FROM SOLICITING
| Confidentiality Agreement | Page 8 |
EMPLOYEES AND CUSTOMERS OF THE COMPANY UNDER CIRCUMSTANCES NOTED IN THIS AGREEMENT AFTER MY
SERVICE IS TERMINATED FOR ANY REASON.
[Signature Page Follows]
| Confidentiality Agreement | Page 9 |
Dated 1/1/2010 and effective as of such date.
| /s/ Xxxxx Xxxxxx | ||
| Name | ||
| 00000 XxxxXxxx Xxxxxx | ||
| Xxxxxxx | ||
| Xxxx XX 00000 | ||
| Address |
ACCEPTED AND AGREED TO:
XXXXX OIL LIMITED
By:
|
/s/ Xxxx Xxxxx Xxxxxxxx | |||
Name:
|
Xxxx Xxxxx Xxxxxxxx | |||
Title:
|
Finance & Admin Manager |
