AGREEMENT
AGREEMENT made this 31st day of July, 2002 by and between NEW SKY
COMMUNICATIONS, INC., a New York corporation with offices at 000 Xxxxxx xxx Xxxx
Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, hereinafter referred to as "New Sky" and
XXXXXXX XXXXX, residing at 00 Xxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000,
hereinafter referred to as "White."
WHEREAS White is desirous of transferring all of the outstanding
stock in Xxxxxx Xxxxx, Inc. to New Sky and being employed by New Sky and New Sky
is desirous of employing the services of White;
NOW, the parties hereto covenant and agree as follows:
1. ASSIGNMENT OF RIGHTS AND TRANSFER OF STOCK. White does hereby
sell, assign and convey to New Sky all of his right, title and interest in all
contracts, patents and trade secrets relating to printing, security paper and
anti-counterfeiting technology owned, held or controlled by White, including but
not limited to his four and one-half percent (4 1/2%) interest in the so-called
"Xxxxx Xxxxxx currency patent," Patent No. 5,735,547, and all of the outstanding
stock of Xxxxxx Xxxxx, Inc.
2. CONSIDERATION. In consideration of the foregoing, New Sky shall
assume all of the outstanding debt of Xxxxxx Xxxxx, Inc. upon which Xxxxxxx
Xxxxx is directly or indirectly obligated or is a guarantor and which is set
forth in Schedule A annexed hereto and made a part hereof. In addition, New Sky
shall grant to White 750,000 unregistered, restricted common shares of New Sky
Communications, Inc.
3. EMPLOYMENT. New Sky shall employ White for an initial salary of
$75,000 per year. The term of employment shall be two (2) years unless sooner
terminated according to the terms of this Agreement. If this employment has not
been terminated in accordance with the provisions hereof, the employment of
White shall be deemed automatically renewed and extended thereafter, for two (2)
year terms, until terminated in accordance with the provisions hereof. White's
employment shall commence upon the completion of the conditions precedent set
forth herein. The provisions of Section 7 hereof shall survive any termination
or assignment of this Agreement.
4. DUTIES. White's duties under this Agreement shall include, but not
be limited to, serving as an officer and member of the Board of Directors of New
Sky Communications, Inc. and/or Xxxxxx Xxxxx, Inc., if either company so elects;
selling and marketing, in conjunction and cooperation with Xxxxxx Xxxxxx,
printing services and security paper and anti-counterfeiting related products
developed and to be developed in the future by Wicker and/or White; and create
exclusively for New Sky future proprietary security paper and
anti-counterfeiting products, containing patented, patent pending and future
patentable intellectual property and providing consulting services to third
parties through New Sky and upon the direction of New Sky.. The parties hereto
agree that all future proprietary intellectual property or technology developed
during the term of White's employment by New Sky shall be deemed to be developed
by White
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for New Sky on a work-for-hire basis and all right, title and interest in such
intellectual property and technology shall be the sole and exclusive property of
New Sky.
5. CONDITIONS PRECEDENT. This Agreement shall be subject to the
following conditions precedent and shall not commence until the completion of
such conditions: (1) New Sky and Xxxxxx Xxxxxx completing an acquisition of all
of the intellectual property rights of Wicker and entering into an employment
agreement with Wicker, and (2) New Sky completing a private placement of
3,000,000 of its common shares.
6. WARRANTIES AND REPRESENTATIONS. White warrants and represents the
following:
a) White is the sole and exclusive owner and holder of the
right, title and interest in the patents, trade secrets and intellectual
property set forth herein and that such representations herein constitutes all
patents, trade secrets and intellectual property rights owned, held or shared by
White as of the date of this Agreement and that such rights are not subject to
any claim, judgment, defense, set-off, lien or encumbrance.
b) The rendering of services by White to New Sky hereunder
is free and unencumbered by any and all claims by or agreements with any other
parties.
c) White owns free and clear all of the outstanding stock of
Xxxxxx Xxxxx, Inc., the stock is fully paid, non-assessable and there exist no
outstanding agreements, claims, liens or encumbrances which would interfere with
or restrict the assignment or conveyance of such shares and the enjoyment of
full rights thereof by New Sky.
7. RESTRICTIVE COVENANT.
a) White acknowledges that the services he shall perform for
New Sky are an integral part of the business of New Sky, and that if White
renders services similar to those rendered to New Sky hereunder, for two (2)
years after his termination, or non-renewal of the employment relationship with
New Sky the same shall cause New Sky significant financial detriment which could
not be precisely determined at the time. Therefore, White acknowledges that he
has been advised and herewith agrees that the restrictive covenant contained
within this paragraph is a specific condition of employment, and that New Sky
has specifically stated that the employment provided for in this contract would
not be offered to White if he did not consent to and execute this restrictive
covenant.
b) In the event of the termination, or non-renewal of
White's employment relationship with New Sky, by White, White agrees that he
shall not engage in rendering services the same or similar to those rendered to
New Sky hereunder set forth in Section 4, directly or indirectly, for a period
of two (2) years following his termination, or non-renewal, of this Agreement.
This covenant shall not apply if there is a termination, or non-renewal, of this
employment agreement by New Sky without cause or there is a material and willful
breach of any term of this Agreement by New Sky.
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c) White agrees that the contents of this Agreement and any
information obtained regarding the business practices and methods of New Sky are
confidential, including but not limited to, any and all patents, technology or
trade secrets transferred to, or developed for, New Sky by White and/or Wicker
pursuant to this Agreement, and shall not be disclosed or discussed with any
third party unless required by law.
8. DOCUMENT EXECUTION. White agrees to execute any and all
instruments and documentation deemed necessary by New Sky, in its sole
discretion, to effectuate the conveyances and assignments set forth in this
Agreement, including but not limited to, assignments of interests in patents and
trade secrets.
9. APPARENT AUTHORITY. White shall have no authority to contract for
or obligate New Sky in any respect except that provided in writing by New Sky.
10. REPRESENTATIVES. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their respective assigns,
successors, heirs and legal representatives, but neither this Agreement nor any
of the rights hereunder shall be assignable by White, his personal
representatives or beneficiaries, as they constitute unique personal services.
11. GOVERNING LAW. This Agreement is deemed made and executed in the
State of New York and the Supreme Court of that State, in and for the County of
Monroe, is hereby deemed to be the sole and convenient forum for the resolution
of disputes under this Agreement. The parties hereto agree that, except for any
and all remedies available under Section 7 herein, the parties shall seek money
damages only for any dispute under this Agreement and shall not seek injunctive
relief nor in any manner interfere, hinder or delay the business operations and
exploitation of intellectual property of the other party.
12. INDEMNIFICATION. Each party hereto agrees to indemnify and hold
harmless the other, its agents and employees, against each and every claim,
demand, loss, liability, damage or expense (including without limitation, any
settlement payment, reasonable attorneys' fees and other expenses incurred in
litigation or settlement of any claim) of whatever nature suffered by the other
party arising out of or in connection with the conduct of that party prior to
the commencement of this Agreement, or any breach or misrepresentation contained
in this Agreement or in any exhibit, certificate or document required to be
furnished in connection with or pursuant to this Agreement.
NEW SKY COMMUNICATIONS, INC.
SEAL
By: /S/ E. XXXXXXX XXXXXX
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President
/S/ XXXXXXX X. XXXXX
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Xxxxxxx Xxxxx
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SCHEDULE A
CREDITOR ADDRESS AMOUNT OWED
Fleet Small Business Services 0000 Xxxx Xxxxxx, Xxxxxxx, XX 00000 $75,000
CIT Small Business Lending 000 XXX Xxxxx, Xxxxxxxxxx, XX 00000 $246,000
