Victor Perez 5477 Coshatte Rd. Bellville, Texas 77418 Dear Victor
Exhibit 10.13
Xxxxxx Xxxxx
0000 Xxxxxxxx Xx.
Xxxxxxxxx, Xxxxx 00000
0000 Xxxxxxxx Xx.
Xxxxxxxxx, Xxxxx 00000
26 July 2011
Dear Xxxxxx
Xxxxx Energy Inc. (the “Company”) is pleased to offer you the position of Chief Financial
Officer. This letter (“Letter Agreement”) sets forth the terms of your employment.
Start Date, Position/Job Title, Duties, Effective Date: You will start on or
before August 22nd 2011 and will report to the CEO of the Company. Your title shall be
Vice President and Chief Financial Officer and you shall discharge the duties of the principal
financial officer of the Company including the duties required for compliance with the financial
reporting requirements of a company with a class of securities registered under the Securities Act
of 1933, as amended, and the Securities Exchange Act of 1934, as amended. Please note, by signing
this Letter Agreement you confirm with the Company that you are under no contractual or other
legal obligations that would prohibit you from taking this position or performing your duties with
the Company. This Letter Agreement and the parties obligations hereunder shall only be effective
and binding upon its approval by formal action of the Company’s board of directors (“Board”) and
the Compensation Committee of the Board.
Compensation: You will be paid a salary of $230,000 annually, less applicable taxes,
deductions and withholding (“Base salary”), payable on the Company’s regular payroll dates. In
addition, you shall be entitled to participate in any executive incentive bonus plan, upon
formulation of such a plan by the Board and on terms determined by the Board.
Employee Benefits: You will be eligible to participate in all present and future
medical, dental, vision, accident and disability plans, defined contribution plans (401k), and all
similar benefits made available generally to employees of the Company. You also will be eligible
to receive paid vacation time. Currently, you will be eligible for four (4) weeks of paid vacation
per year, which shall accrue on a prorated basis. Materials regarding the Company’s employee
benefits, including accrual of paid time off, are being provided to you under separate cover.
Stock: Contingent upon commencement of your employment, you will be granted options
(the “Options”) to purchase 400,000 shares of the Company’s common stock under the Company’s Stock
Option/Stock Issuance Plan (the “Plan”). The Options will vest over four years with 25% vesting on
the first anniversary of your employment and the remainder monthly over 36 months thereafter and
have an exercise price equal to the fair market value of the Company’s common stock on the date of
grant as determined by the Company’s Board. It is intended that the Options will be structured as
non qualified stock options for federal income
0000 Xxxxx Xxxxx x Xxxxxxx Xxxxx 00000 | Tel: 000 000 0000 | Fax: 000 000 0000 | xxxxxxxx.xxx
tax purposes. As will be set forth in the Plan, the options granted to you shall be subject to
vesting and other terms and conditions. The Options and the Plan will be provided to you under
separate cover. In the event of (i) the sale of all or substantially all of the assets of the
Company on a consolidated basis to an unrelated person or entity, (ii) a merger, reorganization or
consolidation in which the outstanding shares of Stock are converted into or exchanged for
securities of the successor entity and the holders of the Company’s outstanding voting power
immediately prior to such transaction do not own at least a majority of the outstanding voting
power of the successor entity immediately upon completion of such transaction, or (iii) prior to
the effective date of registration of the sale of any of its securities pursuant to the Securities
Act of 1933, as amended, the Company (in one or a series of transactions) effecting the issuance of
voting securities to one or more persons or entities not then an affiliate of Company, resulting in
shareholders of Company prior to any such transaction(s) not retaining at least 51% of the issued
and outstanding voting securities of the Company following the transaction(s) or (iv) any entity,
person or group of persons acting as a group, who previously owned no shares of stock of the
Company, or owned shares of stock of the Company which in the aggregate represented less than a
majority of the combined voting power of all shares of stock of the Company, acquires the majority
of the combined voting power of all outstanding shares or voting securities of the Company (an
“Acceleration Event”), 50% of your remaining unvested Shares will accelerate and vest in full. At
the election of the Company the remaining unvested Options Shares shall either be fully vested or
shall be replaced with an incentive grant designed to be at least as valuable and favorable as the
ones being replaced in the controlling entity (“New Incentive”). In the event of Involuntary
Termination (as defined below) within 12 months of such Acceleration Event such “New Incentive”
will immediately vest in full.
Confidentiality, Proprietary Information and Inventions Assignment, and Non-Compete
Agreement: You will be required, as a condition of your employment with the Company, to sign a
Confidentiality, Proprietary Information and Inventions Assignment, and Non-Compete Agreement in
the form attached hereto (“Proprietary Information and Inventions Agreement” or “PIIA”), which
requires, among other provisions, the assignment of patent rights to any invention made during
your employment at the Company, a non-disclosure of proprietary information as well as a
restrictive covenant regarding employment with entities which compete with the Company and
non-solicitation of the Company’s employees for a period of time.
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. Except as expressly provided
below, upon termination you shall only be entitled to receive your Base Salary earned to the date
of termination and unreimbursed business expenses and accrued and unpaid vacation.
0000
Xxxxx Xxxxx x Xxxxxxx Xxxxx 00000 | Tel: 000 000 0000 | Fax: 000 000 0000 | xxxxxxxx.xxx
2.
Involuntary Termination. Despite our at-will relationship, if your employment
is terminated by the Company without “Cause” (as defined below) or if you voluntarily terminate
your employment with Company for “Good Reason” (as defined below) (“Involuntary Termination”) then,
contingent upon your executing a full and complete general release of and covenant not to xxx the
Company, you shall be entitled to receive severance equal to (i) that portion of any bonus earned
but unpaid, (ii) continuation of your base salary for six months, to be paid on regular payroll
dates, (iii) continuation of your medical insurance benefits during such period or reimbursement of
COBRA premiums in the event we are not able to maintain you as a member of our insured group.
3. Termination for Cause or Without Good Reason. If the Company terminates your
employment for Cause or if you voluntarily terminate your employment without Good Reason, 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” means you have (i) been convicted of, or plea of nolo contendere or guilty to a
felony or any other crime involving moral turpitude, (ii) engaged in grossly negligent or willful
misconduct in the performance of his duties for the Company, which actions have had a material
detrimental effect on the Company, (iii) breached any material provision of this Agreement, (iv)
engaged in conduct which is materially injurious, to the Company (including, without limitation,
misuse or misappropriation of the Company’s funds or other property), or (v) committed an act of
fraud; provided, however, that the Company must give you written notice of the acts or omissions
constituting Cause within 60 days after an officer of the Company (other than you) first learns of
the occurrence of such acts or omissions, and no termination shall be for Cause under clauses
(ii), (iii), (iv), or (v) of this provision unless and until you have been afforded an opportunity
to cure such acts or omissions and have failed to do so within 15 days following receipt of such
written notice or of having been afforded the opportunity to cure, whichever occurs later.
“Good Reason” shall mean, without your express written consent, the occurrence of one of the
following: (i) a cumulative reduction of ten percent or more in your Base Salary, except a
reduction which is approved by the Board, is applicable to all executive officers of the Company
and does not occur in connection with or after an Acceleration Event; (ii) a demotion or assigning
to a lesser position as measured by title, a material diminution in your authority, duties,
responsibilities, or reporting relationship; (iii) a permanent relocation in the geographic
location at which you are normally required to perform services to a location more than 75 miles
from the location at which you were normally performed services immediately before the relocation;
or (iv) any other action or inaction that constitutes a material breach by the Company of this
Agreement. If you allege Good Reason as a basis for your termination of employment, (A) you shall
provide notice to the Company of the event
0000
Xxxxx Xxxxx x Xxxxxxx Xxxxx 00000 | Tel: 000 000 0000 | Fax: 000 000 0000 | xxxxxxxx.xxx
alleged to constitute Good reason within ninety (90) days after the occurrence of such event,
(or the date you become aware of such Good Reason, if later), and (B) the Company shall have the
opportunity to remedy the alleged Good Reason event within thirty (30) days from receipt of notice
of such allegation. If not remedied within that 30-day period, you may submit a notice of
termination pursuant to this provision, provided that the notice of termination must be given no
later than sixty (60) days after the expiration of such 30-day period.
Outside Activities: While you render services to the Company, you will devote your
full time and attention to the Company and agree that you will not engage in any other employment,
consulting or other business activity without the written consent of the CEO, provided that you
may engage in additional activities in connection with investments, current or future, commitments
regarding the boards of directors of other business entities and community affairs that are not
inconsistent or do not interfere with your duties.
Withholding
Taxes; Section 409A: All forms of compensation referred to in this Letter
Agreement are subject to applicable withholding and payroll taxes. Notwithstanding any other
provision of this Agreement, no payments shall be made with respect to a termination of
employment, unless such termination constitutes a “separation from service” for purposes of Tres.
Reg. Sec. 1.409A-l(h)(1).
Tax and Legal Advice: By signing this Letter Agreement, 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
Agreement below where indicated. You will be required to sign the enclosed PIIA and return it on
your first day of employment. This Letter Agreement along with the PIIA supersede 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.
0000 Xxxxx Xxxxx x Xxxxxxx Xxxxx 00000 | Tel: 000 000 0000 | Fax: 000 000 0000 | xxxxxxxx.xxx
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 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.
We are very excited about the prospect of your joining the Company. We look forward to your
favorable reply and to a productive working relationship. This offer, if not accepted, will expire
at the close of business on Friday, 5th August 2011.
If you have any questions regarding this offer, please call me.
Sincerely,
/s/ Stuart Page
Stuart Page, CEO
I accept this Letter Agreement:
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxx
Date: 8/4/11
Attachment: 1. Confidentiality, Proprietary Information and Inventions Assignment, and
Non-Compete Agreement
0000 Xxxxx Xxxxx x Xxxxxxx Xxxxx 00000 | Tel: 000 000 0000 | Fax: 000 000 0000 | glorioil-com
ATTACHMENT 1
0000 Xxxxx Xxxxx x Xxxxxxx Xxxxx 00000 | Tel: 000 000 0000 | Fax: 000 000 0000 | xxxxxxxx.xxx
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 “confidentially Agreement” or “Agreement”) is entered into between
Xxxxxx X. Xxxxx (“I” or “me”) and Xxxxx Energy Inc., a Delaware corporation (the “Company”), is
entered into as of August 22, 2011
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 man 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 wither 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 identify, 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). I
further acknowledge that throughout my Service the Company xxxx continue to provide Proprietary
Information. In consideration of the Company’s provision of Poprietary 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 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 term “Intellectual Property Rights” means all intellectual property and industrial
property rights of any
Confidentiality Agreement
Page 2
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, subliceoseable (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.
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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 its 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 is a Competing
Business (as defined below) 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 Competing Business solicit the services of any former employee of
the Company whose service has been
Confidentiality Agreement
Page 4
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 Competing Business, 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 business that is engaged in Microbial
Enhanced Oil Recovery and other microbial based products or services for the oil and gas business
(a “Competing Business”), 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 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.
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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 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 form 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.
12. Authorization to Notify New Employer. Not Applicable.
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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 me 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 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
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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
EMPLOYEES AND CUSTOMERS OF THE COMPANY UNDER CIRCUMSTANCES NOTED IN THIS AGREEMENT AFTER MY
SERVICE IS TERMINATED FOR ANY REASON.
[Signature Page Follows]
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Dated 8/22/11 and effective as of such date.
| /s/ Xxxxxx X. Xxxxx | ||||
0000 Xxxxxxxx Xxxx |
||||
Xxxxxxxxx, XX. 00000 |
||||
ACCEPTED
AND AGREED TO:
XXXXX ENERGY INC.
By:
|
/s/ Xxxx Xxxxx Xxxxxxxx | |||
Name:
|
Xxxx Xxxxx Xxxxxxxx | |||
Title:
|
Admin Manager |
