Exhibit 10.5
EMPLOYMENT, NON-DISCLOSURE
AND NON-COMPETITION AGREEMENT
This Employment, Non-Disclosure and Non-Competition Agreement (the "Agreement")
is entered into and effective on May 1, 2004, by and between MIDNET INC., a
Delaware corporation, with principal business offices at Xxxxx 000, 0000 X.
Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX., Xxxxxx ("TUGBOAT"), and Xxxxxxxxx Xxxxx
residing at 000 Xxxx 00xx Xxxxxx, Xxxxx Xxxxxxxxx, XX, Xxxxxx ("EMPLOYEE").
In consideration of the mutual covenants, conditions, and provisions herein
contained, the parties hereby agree as follows:
DEFINITIONS OF TERMS
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS.
"Confidential Information and/or Trade Secrets" means all information,
processes, process parameters, methods, practices, techniques, plans, computer
programs and related documentation, customer lists, price lists, supplier lists,
marketing plans, advertising materials, financial information, and all other
compilations of information which relate, directly or indirectly, to the
business and/or operations of TUGBOAT, or the business of TUGBOAT INC., a Nevada
corporation, and/or which have not been intentionally disclosed by TUGBOAT to
the general public, and/or which may give TUGBOAT an opportunity to obtain an
advantage over other competitors, persons or parties, regardless of the source
from, or method or manner by which EMPLOYEE may have acquired same.
1. TERMS OF EMPLOYMENT
1.1 Capacity and Compensation. TUGBOAT agrees to employ EMPLOYEE and EMPLOYEE
agrees to work for TUGBOAT in the capacity of Director - Carrier Relations, and
devote 50% of EMPLOYEE's time, energies, attention and resources to the business
of TUGBOAT, on the following terms and conditions:
a. TUGBOAT shall pay EMPLOYEE a salary of $3,500.00CDN per month and shall
pay all of EMPLOYEE's TUGBOAT related business expenses up to $_________.00
per month. The expenses must be directly related to the business of TUGBOAT
and shall be paid upon submission of invoices, vouchers or receipts.
In the event EMPLOYEE intends to incur expenses in excess of $________.00
per month, said expenses shall be discussed between EMPLOYEE and TUGBOAT
and must be approved in advance and in writing by TUGBOAT.
b. This Agreement shall be for a term of one (1) year, commencing on the
date hereof and may be renewed on an annual basis by mutual agreement of
the parties. Notice of intent to renew must be given, if at all, by each
party to the other party, in writing, at least ninety (90) days prior to
the expiration of the annual term of this Agreement. Both parties must give
notice of such intent, failing which, this Agreement shall terminate by its
terms.
c. In the event both parties desire to renew this Agreement, the parties
shall, prior to the expiration of the annual term, meet and negotiate in
good faith the compensation and other terms of employment for the ensuing
year. In the event the parties cannot agree, and if both parties still
desire to renew this Agreement, said issues shall be submitted to binding,
non-appealable arbitration pursuant to paragraph 4.14 hereof.
d. This Agreement shall terminate immediately and automatically upon the
occurrence of any of the following events:
1) Expiration of the terms of this Agreement, unless both parties
provide notice of intent to renew, pursuant to the terms of
subparagraph (b) hereof;
2) Bankruptcy or insolvency of either party;
3) Death or permanent disability of EMPLOYEE; or
4) Dissolution of TUGBOAT.
1.2 Duties. EMPLOYEE shall, during the term of employment hereunder, devote his
best professional skills and efforts to the business and affairs of TUGBOAT,
promote the business and affairs of TUGBOAT, and develop its business. EMPLOYEE
shall also perform such services and duties as may, from time to time, be
assigned to EMPLOYEE by TUGBOAT, its President, or other duly authorized
superiors.
1.3 Termination. EMPLOYEE expressly acknowledges and agrees that no
representations concerning EMPLOYEE's employment by TUGBOAT, or terms or
conditions thereof, have been made to EMPLOYEE, orally or in writing, other than
those set forth herein. Unless otherwise provided by the Board of Directors, the
President of TUGBOAT shall have the exclusive power and authority to terminate
EMPLOYEE and to terminate this Agreement. EMPLOYEE expressly acknowledges he is
an "at will" employee under the laws of the State of Nevada.
EMPLOYEE shall have the right to terminate this Agreement, but only after one
year of employment, and then only upon ninety (90) days' prior written notice.
1.4 Outside Interests. TUGBOAT acknowledges EMPLOYEE may have outside interests
in activities. TUGBOAT does not object to EMPLOYEE pursuing said interests as
long as the same does not interfere with or contravene the terms of this
Agreement.
2. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
2.1 Acknowledgment by EMPLOYEE. EMPLOYEE acknowledges that during the term of
employment with TUGBOAT, EMPLOYEE may be given access to or become acquainted
with the Confidential Information and/or Trade Secrets of TUGBOAT.
2.2 No Use or Disclosure. EMPLOYEE agrees not to use or disclose, directly or
indirectly, any Confidential Information and/or Trade Secrets of TUGBOAT at any
time or in any manner, except as required and expressly authorized in the course
of employment with TUGBOAT. The obligations of this Paragraph are continuing and
shall survive the termination of EMPLOYEE's employment with TUGBOAT for two (2)
years.
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2.3 Restriction on Documents and Equipment. All documents and equipment relating
to the business of TUGBOAT, whether prepared or produced by EMPLOYEE or
otherwise, coming into EMPLOYEE's possession, are the exclusive property of
TUGBOAT, and must not be removed from the premises of TUGBOAT, except as
required and authorized in the course of employment with TUGBOAT. All such
documents and equipment must be kept safe from unauthorized access and returned
to TUGBOAT upon termination of employment with TUGBOAT.
2.4 No Disclosure or Use from Others. EMPLOYEE agrees not to disclose to TUGBOAT
any confidential information or trade secrets obtained from other entities, and
not to bring confidential information and/or trade secrets of other entities
onto TUGBOAT's premises.
3. RESTRICTIONS ON EMPLOYEE.
3.1 No Competitive Planning. While employed by TUGBOAT, EMPLOYEE agrees not to
undertake any outside business activity competitive with the work that EMPLOYEE
performs for TUGBOAT.
3.2 No Hiring of Other Employees. While employed by TUGBOAT and for (2) years
afterward, EMPLOYEE agrees not to employ or attempt to employ, in competition
with TUGBOAT, any of TUGBOAT's other employees who work in any area in which
EMPLOYEE has been significantly engaged on behalf of TUGBOAT.
3.3 Competitive Employment. While employed by TUGBOAT and for (2) years
afterward, EMPLOYEE agrees not to enter into any employment competitive with
TUGBOAT, in which the duties of the competitive employment would inherently
require EMPLOYEE to reveal or use any of the Confidential Information and/or
Trade Secrets of TUGBOAT learned or obtained by EMPLOYEE. For this purpose,
"employment competitive with TUGBOAT" shall mean any person or organization
engaged in a business which could make use of information or discoveries or
improvements thereon, made, conceived, or learned by Employee, in TUGBOAT's
confidence, during the term of his employment by TUGBOAT which gives TUGBOAT an
opportunity to obtain an advantage over competitors, or other persons or
parties.
EMPLOYEE expressly acknowledges and agrees that his employment hereunder, on the
terms and conditions hereof, serve as full consideration for EMPLOYEE's covenant
in this Paragraph 3.3. In addition, EMPLOYEE expressly acknowledges and agrees
that there shall be no money or other consideration of whatsoever nature paid or
payable to EMPLOYEE upon termination, unless otherwise accrued pursuant to the
terms hereof. EMPLOYEE expressly acknowledges that he has other education,
skills, training and experience unrelated to the business of TUGBOAT and could
obtain gainful employment outside of and unrelated to the business of TUGBOAT in
the event of termination of this Agreement and the resulting imposition of
restrictions on his employment, as set forth herein.
3.4 No Solicitation of Customers. While employed by TUGBOAT and for two (2)
years afterward, EMPLOYEE agrees not to divert or attempt to divert, by
solicitation, or by any other means, directly or indirectly, the customers of
TUGBOAT existing at the time of EMPLOYEE's termination.
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4. GENERAL PROVISIONS.
4.1 Successors and Assigns. This Agreement is intended to benefit and is binding
on (i) the successors and assigns of TUGBOAT and (ii) the heirs and legal
successors of EMPLOYEE.
4.2 Governing Law and Forum. This Agreement shall be construed in accordance
with and governed by the laws of the State of Nevada, in spite of the fact that
EMPLOYEE shall perform services hereunder in the Province of British Columbia.
EMPLOYEE agrees that suit may be brought for breach of this Agreement only in
the state courts of the States of Nevada, and TUGBOAT shall be entitled to
injunctive relief to prevent irreparable harm to TUGBOAT which may result from
EMPLOYEE's breach of this Agreement. Venue in Nevada shall be exclusively in
Washoe County, Nevada.
4.3 Separate Enforcement of Provisions. If for any reason a part of this
Agreement is unenforceable, the remainder of the Agreement shall be enforced to
the extent possible.
4.4 Modification of Agreement. This Agreement may only be modified by a writing
signed by (i) EMPLOYEE and (ii) an authorized representative of TUGBOAT.
4.5 No Conflicting Contracts. EMPLOYEE represents that EMPLOYEE has no
contracts, nor will EMPLOYEE enter into any contracts, with any other party that
would or could interfere with EMPLOYEE's compliance with the terms and
conditions of this Agreement.
4.6 No Right to Continuing Employment. No provision of this Agreement shall be
construed as giving EMPLOYEE the right to be retained in the employment of
TUGBOAT.
4.7 Incapacity of Employee. If the EMPLOYEE shall be incapacitated by illness or
any other cause and prevented from complying with the terms, covenants and
conditions of this Agreement on his part to be kept, observed and performed,
then this Agreement shall be suspended, both as to services and compensation,
during the period of such incapacity.
4.8 Insurance. EMPLOYEE agrees that TUGBOAT may, from time to time, apply for
and take out, in TUGBOAT's own name and at TUGBOAT's own expense, life, health,
accident or other insurance upon the EMPLOYEE in any sum or sums that TUGBOAT
may deem to be necessary or appropriate to protect its interests. EMPLOYEE also
agrees to aid TUGBOAT in procuring any and all such insurance by submitting to
the usual and customary medical examinations and by filling out, executing and
delivering such applications and other instruments, in writing, as may be
reasonably required by any insurance company or companies to which any
application or applications for insurance may be made by or for TUGBOAT.
EMPLOYEE further agrees that neither EMPLOYEE, his heirs or legal successors
shall have any right, title or interest in or to any such insurance policies or
related benefits.
4.9 Effective Date. Regardless of when executed, the parties expressly
acknowledge and agree this Agreement is deemed to be effective on the date set
forth in the first paragraph of this Agreement.
4.10 Entire Document. This Agreement constitutes the sole and entire agreement
among the parties with respect to the subject matter hereof and replaces and
supersedes any and all prior understandings and agreements between the parties,
whether oral or written, express or implied.
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4.11 Indemnity. Each party hereby expressly agrees to indemnify and hold the
other party, its officers, directors, agents and employees, harmless from and
against any and all losses, costs, damages, claims or liabilities, of whatsoever
nature, including, without limitation, attorneys' fees, arising from any breach
of this Agreement or the fact that any representation made herein by EMPLOYEE
was false or misleading when made.
4.12 Acknowledgment of Understanding. EMPLOYEE acknowledges that EMPLOYEE has
read and understands this Agreement; has had an opportunity to discuss it with
an attorney; and has received a fully executed copy of it.
4.13 Notices. Any and all notices required or permitted hereunder shall be in
writing and sent by mail, postage prepaid, certified, return receipt requested,
to the parties at the addresses set forth in the first paragraph of this
Agreement. Notices shall be deemed given for all purposes three (3) days from
the date the notice is postmarked by the Postal Service.
4.14 Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be resolved by binding and specifically
enforceable arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association, and judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. Any
arbitration hereunder shall be held only in Washoe County, Nevada and enforced
only in the state district court situated herein. No appeals shall be permitted.
4.15 Execution of Agreement. This Agreement has been executed in Washoe County,
Nevada.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date set
forth below.
Dated: 01.05, 2004. Dated: 01.05, 2004
MIDNET, Inc.
BY:
/s/ Xxxxxxxxx Xxxxx /s/ Xxxxx Xxxxxxxx
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Xxxxxxxxx Xxxxx Xxxxx Xxxxxxxx
Employee Director
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