EXHIBIT 10.3
XXXXXX EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of this fifteenth (15) day of September, 2000, ("Effective Date") by and
between MR3 Systems, Inc., a Delaware corporation, ("EMPLOYER") located at Xxxx
00, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, and Xxxxx X. Xxxxxx ("EMPLOYEE") whose
address is 0000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxxxx, XX 00000.
RECITALS
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WHEREAS, EMPLOYER requires the services of a Senior Vice
President, Business Development who will have responsibility for providing
leadership and direction to meet EMPLOYER's business development goals; and
WHEREAS, EMPLOYEE warrants that he has the special skills,
knowledge, abilities and experience required for the position of Senior Vice
President, Business Development; and
WHEREAS, EMPLOYER desires to employ EMPLOYEE as its Senior
Vice President, Business Development subject to the terms and conditions of this
Agreement; and
WHEREAS, EMPLOYEE wishes to be employed by EMPLOYER to serve
as its Senior Vice President, Business Development.
NOW, THEREFORE, in consideration of the recitals, covenants,
conditions and promises contained herein, the parties hereto agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES
---------------------
1.1 Employment. EMPLOYER hereby engages EMPLOYEE to serve in the capacity of
Senior Vice President, Business Development, of EMPLOYER and EMPLOYEE hereby
accepts said employment on the terms and conditions set forth in this Agreement.
1.2 Duties. EMPLOYEE shall report directly to the Chief Executive Officer of
EMPLOYER and shall perform such duties and services as are customarily provided
by the Senior Vice President, Business Development, of a corporation such as
EMPLOYER. Said duties and services shall be more particularly described in
Exhibit "A" attached hereto. (Exhibit "A" is incorporated herein by reference.)
1.3 Hours. EMPLOYEE shall devote his full time, attention and energies to the
business of EMPLOYER and shall not, during the term of this Agreement, be
engaged in any other full or part-time employment or other affiliation which
will keep him from fulfilling his duties to EMPLOYER hereunder. Notwithstanding
anything to the contrary contained herein, nothing in this Agreement shall be
construed to prevent EMPLOYEE from participation in professional association
activities approved by EMPLOYER.
1.4 Representation and Warranty of EMPLOYEE. EMPLOYEE represents and warrants to
EMPLOYER that performance of his duties will not violate any agreements with, or
trade secrets of, any other person or entity.
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ARTICLE II
COMPENSATION
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2.1 Base Salaries.
--------------
2.1.1 Initially, for services rendered by EMPLOYEE
hereunder, EMPLOYEE shall be paid a Base Salary of
Eight Thousand Dollars ($8,000) per month.
2.1.2 Upon completion of Milestone I as set forth Exhibit A
hereto ("Milestone I"), EMPLOYEE shall be paid a Base
Salary of Twelve Thousand Five Hundred Dollars
($12,500) per month.
2.1.3 Upon completion of Milestone II as set forth Exhibit
A hereto ("Milestone II"), EMPLOYEE shall be paid a
Base Salary of Fifteen Thousand Dollars ($15,000) per
month.
2.1.4 EMPOLYEE's right to receive the Base Salary increases
set forth in sections 2.1.2 and 2.1.3 above are
expressly conditioned upon the fiscal ability of
EMPLOYER to pay such increases, in addition to paying
increases of the same amounts to both its Chairman
and CEO, and its Vice Chairman and CSO, without
impairing the financial condition of the EMPLOYER as
determined by its Board of Directors. Any Base Salary
increases earned under Sections 2.1.2 and 2.1.3
above, but not paid under this Section 2.1.4 shall be
accrued on the books on the EMPLOYER, together with
the unpaid salary increases for the CEO and the CSO.
Payment of any accrued salaries shall be deferred
until such time as the EMPLOYER's financial condition
can sustain both the ongoing payment of increased
salaries to EMPLOYEE, CEO and CSO, and the pay down
of all, or a pro-rata portion of the accrued
salaries.
2.1.5 Said Base Salaries shall be paid to EMPLOYEE monthly
in accordance with EMPLOYER's payroll practices. All
Salaries shall be subject to all appropriate and
required payroll deductions.
2.2 Stock Options.
---------------
EMPLOYER grants to EMPLOYEE 5-year options,
commencing as of the Effective Date, to purchase the
Common Stock of EMPLOYER, at an exercise price of
$0.40 per share ("Options"), vesting as follows:
2.2.1 Options to purchase 500,000 shares to vest
immediately upon the signing of this Agreement; and
2.2.2 Options to purchase an additional 500,000 shares to
vest immediately upon completion of Milestone I; and
2. 2.3 Options to purchase an additional 500,000 shares to
vest immediately upon completion of Milestone II.
2.3 Benefits.
---------
EMPLOYEE shall be entitled to the following fringe
benefits:
A. Vacation and Sick Days. EMPLOYEE shall be entitled to
the vacation and sick day benefits accorded employees as established by the
EMPLOYER personnel policies.
B. Federal and State Holidays. EMPLOYEE shall be paid
for federal and state holidays in accordance with EMPLOYER'S holiday policy.
C. Professional Association Dues, Subscriptions and
Attendance at Professional Association Meetings. EMPLOYER will pay for
professional association dues, subscriptions to professional periodicals and
payment for attendance at professional association meetings as reasonably
approved by the Board of Directors as part of its annual budgeting process.
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D. Additional Benefits: Employee shall be entitled to
such additional benefits, including medical, disability and death, and
retirement benefits, in accordance with any of those types of benefit plans when
and if adopted by Employer.
ARTICLE III
TERM AND TERMINATION
3.1 Initial Term.
-------------
The initial term of this Agreement ("Initial Term") shall
commence on the Effective Date of this agreement ("Commencement Date"), and
shall continue in effect until December 31, 2003, unless sooner terminated
pursuant to the terms of this Agreement.
3.2 Automatic Renewal.
-------------------
Upon completion of the Initial Term, the Agreement shall
continue from month to month until terminated or until the parties negotiate a
new term.
3.3 Termination Without Cause. Either party may terminate this Agreement,
without cause, at any time, upon providing the other party with sixty (60)
calendar days' prior written notice of said termination. Termination shall
automatically become effective sixty (60) calendar days following the giving of
said notice ("Effective Date of Termination").
3.4 Termination For Cause.
-----------------------
Notwithstanding any provision in this Agreement to the
contrary, EMPLOYER shall have the right to terminate this Agreement and
EMPLOYEE's employment hereunder for "cause". In the event EMPLOYEE is terminated
for "cause", termination shall be effective upon fifteen (15) days' prior
written notice by EMPLOYER. For purposes of this Agreement, "cause" shall be
defined as:
(a) Conviction of EMPLOYEE of a felony.
(b) Conviction of EMPLOYEE of a misdemeanor of moral turpitude which
affects EMPLOYEE's ability to perform his duties under this Agreement.
c) EMPLOYEE's refusal to physically report to work for a period of two (2)
weeks for any reason other than authorized vacation days, sick days,
holidays, attendance at conventions/conferences, or the death or
disability of EMPLOYEE.
(d) Willful malfeasance or gross negligence of EMPLOYEE.
(e) Material refusal by EMPLOYEE to perform his duties, or his substantial
neglect of the duties assigned to him.
(f) Disloyal, dishonest or illegal conduct by EMPLOYEE.
(g) Breach by EMPLOYEE of any other terms of this Agreement and his failure
to cure said breach within ten (10) calendar days.
Notwithstanding any provision of this Agreement to the
contrary, termination of EMPLOYEE's employment pursuant to this Section 3.5
shall result in termination of EMPLOYER's obligation to pay for or provide any
of the following: (i) Base Salary (except to the extent that said Salary has
been earned and not yet paid) or (ii) Stock Options (except to the extent that
said been earned but not yet paid).
3.5 Effect of Termination.
-----------------------
Notwithstanding any provision of this Agreement to the contrary, upon
termination of this Agreement for any cause or reason, EMPLOYER shall pay
EMPLOYEE for all vacation time accrued but not used by EMPLOYEE prior to the
Effective Date of Termination as required by applicable State laws and
regulations.
3.6 Payment Upon Termination by EMPLOYER.
-------------------------------------
Notwithstanding any provision in this Agreement to the contrary, if
EMPLOYER terminates EMPLOYEE's Employment without cause pursuant to Section 3.3
hereof, EMPLOYEE shall be entitled to his then base salary for three (3) months
at the rate of the base salary then in effect, which three month period shall
begin on the effective date of the termination (the "Severance Benefits"). The
obligation to pay Severance Benefits shall not be subject to credit, set-off or
diminution by reason of the fact that EMPLOYEE may be gainfully employed during
the period that such Severance Benefits are payable.
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ARTICLE IV
EXPENSES
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EMPLOYEE shall be entitled to reimbursement for those ordinary and
necessary expenses incurred in performance of his duties hereunder in accordance
with EMPLOYER's standard policy for reimbursement of business expenses for its
executives. Payment for any other expenses shall be subject to the prior written
approval of the Board of Directors of EMPLOYER.
ARTICLE V
CONFIDENTIALITY
---------------
EMPLOYEE agrees to enter into the form of Confidentiality Agreement
attached hereto as Exhibit B and made a part hereof.
ARTICLE VI
NON-COMPETITION
---------------
Unless otherwise waived in writing by the EMPLOYER, which waiver shall
not be unreasonably withheld, during the term of this Agreement, EMPLOYEE shall
serve EMPLOYER diligently and to the best of his abilities and shall not compete
with EMPLOYER in any way. Without limiting the generality of the foregoing,
EMPLOYEE shall not, during the term of this Agreement, directly (whether for
compensation or otherwise), alone or as an agent, principal, partner, officer,
employee, trustee, director, shareholder or in any other capacity, own any
interest in, manage, operate, join, control, assist, participate in the
ownership, management, operation or control of, furnish any capital to, be
connected in any manner with or provide any services as a consultant for any
person, corporation, partnership, proprietorship, firm, association, other
entity or business which competes with any business of EMPLOYER and its
affiliates as conducted from time to time.
ARTICLE VII
SOLICITATION OF EMPLOYEES
-------------------------
EMPLOYEE agrees that during his employment and for a period of
two years thereafter, he will not, directly or indirectly, individually or on
behalf of another, solicit or induce EMPLOYER's employees, agents or consultants
to terminate their relationship with EMPLOYER in order to accept employment, an
agency or a consultancy with EMPLOYEE or another person or entity.
ARTICLE VIII
CONFIDENTIAL INFORMATION OF OTHERS
----------------------------------
EMPLOYEE warrants that he is not covered by any restrictive
covenant with another employer that would preclude him from performing his
duties hereunder. EMPLOYEE agrees that in performing such duties for EMPLOYER,
he will not use or otherwise divulge confidential or proprietary information, or
trade secrets obtained from a former employer.
ARTICLE IX
NOTICES
-------
All notices required to be given hereunder shall be in writing
and shall be deemed delivered if personally delivered or dispatched by certified
or registered mail, return receipt requested, postage prepaid, addressed to the
parties as follows:
EMPLOYER: Xxxx 00
Xxx Xxxxxxxxx, XX 00000
Attention: CEO
EMPLOYEE: 0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Notice shall be deemed given on the date it is delivered if
delivered personally, and on the date of the return receipt if dispatched by
certified or registered mail, return receipt requested. Any party may change the
address to which to send notices by notifying the other party of such change of
address in writing.
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ARTICLE X
SEVERABILITY
------------
Any terms or provisions of this Agreement which shall prove to
be invalid, void or illegal shall in no way affect, impair or invalidate any
other term or provision herein and such remaining terms and provisions shall
remain in full force and effect.
ARTICLE XI
GOVERNING LAW
-------------
The existence, validity and construction of this Agreement
shall be governed by the laws of the State of California.
ARTICLE XII
ASSIGNMENT
----------
Neither party shall assign this Agreement without the prior
written consent of the other. This Agreement shall be binding on the parties and
their respective successors and assigns.
ARTICLE XIII
WAIVER
------
The waiver by either party of any one or more defaults, if
any, on the part of the other, shall not be construed to operate as a waiver of
any other or future defaults, under the same or different terms, conditions or
covenants contained in this Agreement.
ARTICLE XIV
CAPTION AND HEADINGS
--------------------
The captions and headings throughout this Agreement are for
convenience of reference only and shall in no way be held or deemed to be a part
of or affect the interpretation of this Agreement.
ARTICLE XV
MEDIATION/ARBITRATION OF DISPUTES
----------------------------------
15.1 Mediation Agreement.
---------------------
The EMPLOYER and EMPLOYEE agree that, to the fullest extent permitted
by law, any and all controversies between them will be submitted to mediation
upon terms mutually agreeable to both parties. In the event the parties do not
resolve the controversies through mediation, then the EMPLOYER and EMPLOYEE
agree that, to the fullest extent permitted by law, any and all said
controversies between them will be submitted for resolution to binding
arbitration. The parties understand and agree that in the event mediation is
unsuccessful, then arbitration will be the exclusive forum for resolving
disputes between them, including statutory claims and all disputes arising out
of the employment relationship and the termination of such relationship. The
EMPLOYEE and EMPLOYER expressly waive their entitlement, if any, to have
controversies between them decided by a court or jury.
15.2 Agreement to Arbitrate All Employment Disputes.
-----------------------------------------------
Private arbitration is the referral of a dispute to an impartial third
party, instead of a court or jury, for a final and binding decision. Any dispute
arising out of EMPLOYEE's employment with EMPLOYER including termination of
employment and all statutory claims, will be submitted to binding arbitration
administered by the American Arbitration Association under its National Rules
for the Resolution of Employment Disputes. Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction. EMPLOYER and
EMPLOYEE each expressly waive entitlement, if any, to have any such controversy
heard before a court or a jury.
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15.3 Time Limits for Initiating Arbitration.
----------------------------------------
Either party may, within one year of the occurrence of the event giving
rise to the dispute, initiate arbitration by notifying the other in writing. In
the case of a dispute involving statutory rights, the party must initiate
arbitration within the time limit established by the statute. Failure to
initiate arbitration within such one-year period, or the statutory period, or
such extended period as may be mutually agreed upon in writing, will constitute
a waiver of any and all claims and such claims will be forever barred.
15.4 Selection of the Arbitrator.
------------------------------
Both parties will attempt to agree upon a mutually acceptable
arbitrator from the American Arbitration Association's national employment
panel. If they are unable to agree upon an arbitrator, then an arbitrator will
be selected in accordance with the then-current National Rules for the
Resolution of Employment Disputes of the American Arbitration Association.
15.5 Arbitrator's Authority.
----------------------
The arbitration will be conducted according to the National Rules for
the Resolution of Employment Disputes of the American Arbitration Association.
The arbitrator will base the decision on the facts presented at the hearing and
in accordance with governing law, including statutory and judicial authority.
The arbitrator must follow the policies of EMPLOYER in effect at the time of the
event giving rise to the dispute. The arbitrator will not have authority to
modify or revoke this Arbitration Agreement, EMPLOYEE's Employment Agreement, or
any EMPLOYER policy. The arbitrator's decision will be final and binding upon
both parties. Except as provided in paragraph seven (7) below, each party will
bear its own attorneys' fees and costs in connection with the arbitration. The
cost of the arbitrator will be shared equally by both parties.
15.6 Right of Representation.
------------------------
All parties are entitled to representation by counsel or by any other
person whom the party designates.
15.7 Discovery.
---------
The parties may engage in discovery to the extent permitted under the
California Arbitration Act. The arbitrator will rule on all discovery disputes
and may limit discovery to that reasonably necessary to arbitrate the issues
presented.
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15.8 Remedies.
---------
The arbitrator may award such remedy as he deems just and equitable,
including any remedy that would have been available if the matter had been heard
in court. Any remedies awarded, however, will be awarded for the purpose of
making the injured party whole and will be limited to actual and foreseeable
damages proximately caused by the event giving rise to liability and will, where
applicable, be limited by the terms of EMPLOYEE's Employment Agreement. The
arbitrator can award punitive damages to the extent permitted by statute or
common law. In addition, an arbitrator may award reasonable attorneys' fees to
the prevailing party if such fees are specifically allowed by statute for the
violation found by the arbitrator.
15.9 Right to File Administrative Complaint. Nothing in this Agreement will
prevent EMPLOYEE from filing a complaint with the Department of Fair Employment
and Housing, the Equal Employment Opportunity Commission, or any other federal
or state agency charged with protecting the rights of EMPLOYEE.
15.10 Not withstanding anything to the contrary set forth herein, the provisions
of this Article XV shall not apply to any dispute, controversy, claim or the
like between EMPLOYER and EMPLOYEE arising out of or in connection with the
Confidentiality Agreement attached hereto Exhibit B. In any such case the terms
and conditions of said Confidentiality Agreement shall apply.
ARTICLE XVI
COOPERATION
------------
Both parties to this Agreement agree to use their best efforts
to cooperate with one another in good faith.
ARTICLE XVII
NO THIRD PARTY BENEFICIARIES
----------------------------
Nothing in this Agreement, expressed or implied, is intended
or shall be construed to confer upon any person, firm or corporation other than
the parties hereto and their respective successors or assigns, any remedy or
claim under or by reason of this Agreement or any term, covenant or condition
hereof, as third party beneficiaries or otherwise, and all of the terms,
covenants and conditions hereof shall be for the sole and exclusive benefit of
the parties hereto and their successors and assigns.
ARTICLE XVIII
ENTIRE AGREEMENT
----------------
This Agreement states the entire contract between the parties
with respect to the subject matter of this Agreement and supersedes any oral or
written proposals, statements, discussions, negotiations, or other agreements
before or contemporaneous to this Agreement. The parties acknowledge that they
have not been induced to enter into this Agreement by any oral or written
representations or statements not expressly contained in this Agreement. This
Agreement may be modified only by mutual agreement of the parties provided that,
before any modification shall be operative or valid, it be reduced to writing
and signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on that day and year, set forth hereinabove.
EMPLOYER
--------
MR3 SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx, Chairman & CEO
EMPLOYEE
--------
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
EXHIBIT "A"
-----------
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DUTIES AND RESPONSIBILITIES OF EMPLOYEE
---------------------------------------
EMPLOYEE shall perform the duties, and have the responsibilities, generally
associated with the position of Senior Vice President, Business Development of a
corporation in a comparable stage of development as EMPLOYER. However, these
duties and responsibilities, at least during the first 5 calendar quarters of
this Agreement shall be prioritized as follows:
1. The development of EMPLOYER's business in the steel industry, with
primary emphasis of the processing of electric arc furnace dust
("EAF"), and secondary emphasis on projects such as the Dupont Tin and
AK Steel EGL projects.
2. Assisting EMPLOYER in the procurement of low cost feedstock and source
materials for its Butte, Montana facility and in the sale of the output
of that facility.
3. Pursuing any opportunities that may arise out of existing EMPLOYER
relationships, such as the relationship with Applied Materials.
4. Working with the EMPLOYER and any of its consultants to research and
determine all the potential business development opportunities for the
EMPLOYER, including identifying all potential markets, the size and
location of those markets, the advisability of the EMPLOYER
participating in those markets and the projected net revenue to
EMPLOYER from any such participation. The result of this research is to
prioritize EMPLOYER's targeting of potential markets, which EMPLOYEE
will then seek to develop on behalf of EMPLOYER pursuant to a business
plan approved by its Board of Directors.
With respect to priority no. 1 above, EMPLOYEE shall have two Milestones to
reach during the Initial Term of this Agreement, to which his Compensation is
tied pursuant to Section 2 of this Agreement, as follows:
(a) Milestone I: EMPLOYEE shall have caused EMPLOYER to reach final
agreements on the installation of MR3 plants to process EAF on the properties of
two steel companies on or before June 30, 2001, processing no less than a total
of 25,000 tons of EAF per year.
(b) Milestone II: EMPLOYEE shall have caused EMPLOYER to reach final
agreements on the installation of MR3 plants to process EAF on the properties of
two additional steel companies on or before December 31, 2001, processing no
less than a total of 50,000 tons of EAF per year.
EMPLOYEE shall be responsible for monitoring the prioritization of these duties,
with first priority and emphasis on reaching the Milestones set forth above.
Should EMPLOYEE determine that EMPLOYER is jeopardizing EMPLOYEE's ability to
reach these Milestones by asking EMPLOYEE to devote time to lesser priority
items, EMPLOYEE shall notify EMPLOYER immediately. Any material change in the
priority listed above shall then result in a change in the timing of the
Milestones, upon mutual agreement between EMPLOYER and EMPLOYEE.
EXHIBIT "B"
-----------
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made and entered into this 15th day of September, 2000, by and
between:
MR3 Systems, Inc. ("EMPLOYER "), a Delaware corporation, whose address is Xxxx
00, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, and
Xxxxx X. Xxxxxx ("EMPLOYEE"), whose address is 0000 Xxxxx Xxxxx Xxxxx,
Xxxxxxxxxxx, XX 00000.
EMPLOYER and EMPLOYEE, respectively, may each from time to time be individually
referred to herein as a "Party", or collectively as the "Parties", or, as the
case may be, as the "EMPLOYER" or the "EMPLOYEE".
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WHEREAS:
A. EMPLOYER and EMPLOYEE have entered into a Employment Agreement
("Employee Agreement"); and
B. From time to time prior to and during the term of the
Employment Agreement, EMPLOYER may disclose confidential and proprietary
information to the EMPLOYEE.
NOW IT IS HEREBY AGREED as follows:
1. EMPLOYEE hereby agrees to undertake the following with respect to the
confidential information listed below and hereby defined as
"Confidential Information":
(a) all kinds of drawings, sketches, photographs, layouts,
artwork, specifications, including without limitation design,
manufacturing, installing, and operating drawings (e.g., copies, films,
reproductions, etc.) for the MR3 Technology and/or the operation of a
EMPLOYER System, and other related products and matters ("Products");
(b) EMPLOYER's financial and pricing information, business plans,
research and development, work in progress, existing and potential
commercial relationships, services or marketing plans, information
embodied in its technologies, including equipment, systems, software,
codes, products or chemical formulas, media, operations, manuals,
designs, letters, negotiation documents, product descriptions, part
descriptions, data, reports, plans, proposals, know-how, methodology,
brochures, descriptions, and other documents and objects of every
description and all related information; and
2. All Confidential Information shall be treated by the EMPLOYEE as
confidential, shall be kept secret by the EMPLOYEE, shall not be
disclosed, directly or indirectly, by the EMPLOYEE to any third party
without the express written consent of the EMPLOYER and shall be used
by the EMPLOYEE exclusively for the purposes of performing his
obligations under, and otherwise complying with the terms and
conditions of, the Employee Agreement, including all attachments,
exhibits and schedules thereto.
3. The obligations of confidentiality and non-disclosure and the
restrictions of use contained herein shall not apply to information
which the EMPLOYEE can demonstrate:
(a) is available to the public at the time it is disclosed or
thereafter becomes available to the public; or
(b) is known to the EMPLOYEE at the time of disclosure; or
(c) properly comes into the possession of the EMPLOYEE from an
independent source not bound by a confidentiality obligation.
However, specific aspects of the Confidential Information shall not be
deemed to be within the scope of exceptions (a), (b) and (c) above
merely because they are broadly encompassed by more general information
which is in the public domain or in the EMPLOYEE's possession or is
disclosed to the EMPLOYEE by a third party.
4. EMPLOYEE further agrees that without the express prior written
permission of EMPLOYER:
(a) it will not use the Confidential Information of MR3 to operate
(or subcontract others to operate) any high affinity metals
capture technology similar to the MR3 System or to produce (or
subcontract others to produce) Products or any similar items
for anyone other than MR3 ; and
(b) it will not use or otherwise disclose any such Confidential
Information to any third party.
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5. EMPLOYEE confirms that the Confidential Information has been and shall
remain the sole property of the EMPLOYER and upon receipt of a request
from the EMPLOYER, agrees to immediately return to the EMPLOYER any
Confidential Information, including any drawings, photographs,
specifications or other documents in its possession without retaining
any summaries, photocopies or other reproductions of the above.
6. EMPLOYEE further confirms that any Confidential Information received
has been and shall remain the property of the EMPLOYER, and the
EMPLOYEE shall not claim or apply for any kind of intellectual property
rights pertaining to or relevant to the Confidential Information.
7. EMPLOYEE acknowledges that the remedies provided by law for a violation
of his obligations would be inadequate and that the EMPLOYER will be
irreparably damaged in the event of a breach of this Agreement.
Consequently, EMPLOYER shall be entitled to, and the EMPLOYEE shall not
in any way object to, an injunction restraining any violation of this
Agreement, or any appropriate decree of specific performance, without
any bond or other security, or any proof of irreparable damage, being
required.
8. The obligations of confidentiality and non-disclosure and the
restrictions of use contained herein shall continue for a period of
ninety-nine (99) years from the last date that Confidential Information
is furnished by a EMPLOYER to a EMPLOYEE.
9. This Agreement may not be modified, amended, rescinded, canceled or
waived in whole or in part, except by written instrument, signed by
both parties, which makes specific reference to this Agreement and
which specifies that this Agreement is being amended or otherwise
altered. None of the provisions of this Agreement shall be deemed to be
waived by any act or acquiescence on the part of either Party, but only
by a writing executed by both Parties.
10. This Agreement will be binding upon permitted successors and assignees
of the Parties.
11. (a) If during the course of any litigation, whether or not the
EMPLOYEE is a party to such litigation, the EMPLOYEE is
requested or required to disclose Confidential Information
obtained under the scope of this Agreement, the EMPLOYEE shall
immediately notify EMPLOYER of this fact prior to divulging
the Confidential Information and shall give EMPLOYER adequate
notice of the requests or requirement so as to allow EMPLOYER
sufficient time to seek judicial protection of the
Confidential Information.
(b) In the event that any Confidential Information within the
possession of the EMPLOYEE is believed by the EMPLOYEE to have
fallen recently within an exception set forth in Section 3
above and is, therefore, not Confidential Information, then
the EMPLOYEE shall, at least sixty (60) days prior to any
disclosure or use of such information for any purpose, notify
EMPLOYER of this fact in writing.
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12. This Agreement shall be governed by and construed in accordance with
the laws of the State of California. The Parties hereby agree that any
legal action or proceeding arising out of or relating to this Agreement
may be brought in the courts of the State of California and the Parties
hereby irrevocably submit to the non-exclusive jurisdiction of, but not
limited to, the courts of the State of California.
13. Each Party agrees to pay all attorneys' fees and associated expenses in
connection with this Agreement in the event of default or in the event
that the other Party seeks to enforce its rights under any provision of
this Agreement.
14. If any one or more of the provisions contained in this Agreement shall,
for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If, moreover, any one or more of the
provisions contained in the Agreement shall for any reason be held to
be excessively broad as to time, duration, geographical scope, activity
or subject, it shall be construed by limiting and reducing it, so as to
be enforceable to the extent compatible with the applicable law as it
shall then exist.
IN WITNESS WHEREOF, the duly authorized representatives of the Parties have
signed this Agreement as of September 15, 2000.
EMPLOYER
--------
MR3 SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx, Chairman and CEO
EMPLOYEE
--------
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
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