EXHIBIT 10.9 EMPLOYMENT AGREEMENT WITH XXXXX XXXXXX
ENGAGEMENT AGREEMENT
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This Engagement and Consulting Agreement (the "Agreement") made and entered
into effective the 1st day of January, 2002, by and between PocketSpec
Technologies Inc., a Colorado Corporation, hereafter referred to as (the
"Company" or as "PocketSpec"), and Xxxxx Xxxxxx, hereinafter referred to as (the
"Employee").
RECITALS
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WHEREAS, the Employee is director of operations and promotions and also
serves as the secretary and director of the Company and the Company has agreed
to directly employ the Employee to better reflect the work level she performs
for the Company, in those capacities.
WHEREAS, the Company is a licensee of technology, patents (filed and
pending), trademarks and service marks of Color-Spec Technologies, Inc.,
hereinafter referred to for convenience as ("Color-Spec") and its agreements
with Color-Spec gives the Company the right to continue development agreements
for hardware and software technologies now being developed, and new applications
for the technologies, hereinafter referred to as (the "Current Projects").
WHEREAS, the Company is a publicly traded company which trades on the OTC
Bulletin Board under the symbol "PKSP.
WHEREAS, the Company desires to contract and hire the Employee for work in
the areas of her expertise that align with the Company's plans, hereinafter
referred to as (the "Employment Tasks and Scope"). The arrangements described in
this Agreement as they pertain to the contracting or hiring of the Employee are
hereinafter referred to as (the "Engagement").
WHEREAS, the parties have decided to set down in writing the mutual
understandings in this Agreement.
AGREEMENT
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NOW, THEREFORE, for the mutual covenants and agreements set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Engagement: The Company and Employee agree that Employment Tasks and Scope
to be performed by Employee is specifically defined as follows:
1.1. Continue as a director of the Company
1.2. Continue as the operations and promotions director.
2. Term of Engagement: This Agreement shall expire on December 31, 2003, or as
may be extended by simply memorandum, amendment or other confirmation
documentation between PocketSpec and Employee.
3. Compensation:
3.1. The Company has agreed to pay to Employee a monthly salary of
$5,000.00 commencing January 1, 2002 and increasing to $8,630.00
commencing April 1, 2002, payable in arrears with one- alf on the 15th
of each month and the 1st of the following month, or as otherwise
agreed by the Company and Employee.
3.2. The Company may pay future amounts agreed to by the Company, payable
in cash, restricted common stock, or other assets, based on
performance of the Employee and the success of the Company.
4. Expenses: The Employee will be reimbursed reasonable expenses incurred in
relationship to the Engagement.
5. Additional Provisions:
5.1. NONDISCLOSURE.
5.1.1. Recognition of Company's Rights; Nondisclosure. At during the
Engagement and thereafter, Employee will hold in strictest
confidence and will not disclose, use, lecture upon or publish
any of the Company's Proprietary Information (defined below),
except as such disclosure, use or publication may be required in
connection with the work of Employee for the Company, or unless
an officer of the Company expressly authorizes such in writing.
Employee will obtain Company's written approval before publishing
or submitting for publication any material (written, verbal, or
otherwise) that relates to Employee work at Company and/or
incorporates any Proprietary Information. Employee hereby assign
to the Company any rights Employee may have or acquire in such
Proprietary Information and recognize that all Proprietary
Information shall be the sole property of the Company and its
assigns.
5.2 Proprietary Information. The term "Proprietary Information" shall mean
any and all confidential and/or proprietary knowledge, data or
information of the Company. By way of illustration but not limitation,
"Proprietary Information" includes (a) trade secrets, inventions, mask
works, ideas, processes, formulas, source and object codes, data,
programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques (hereinafter
collectively referred to as "Inventions"); (b) information regarding
plans for research, development, new products, marketing, and selling,
business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (c)
information regarding the skills and compensation of other employees
of the Company. Notwithstanding the foregoing, it is understood that,
at all such times, Employee is free to use information which is
generally known in the trade or industry, which is not gained as a
result of a breach of this Agreement, and her own skill, knowledge,
know-how and experience to whatever extent and in whichever way
Employee wish.
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5.3. Non-Solicitation. Employee shall not during the term of Engagement,
and for a period of one year thereafter, directly or indirectly, use
any Proprietary Information to:
5.3.1. solicit, induce, entice, or attempt to entice, any employee of
the Company to terminate her or her engagement with the Company;
5.3.2. solicit, induce, entice, or attempt to entice, any customer of
the Company to terminate its business relationship with the
Company, including those that have been the Company's customers
within the one year preceding its termination;
5.3.3. directly or indirectly solicit or provide services to
anycustomer of the Company including those who have been the
Company's customers within the one year preceding its
termination.
5.4. Third Party Information. Employee understands, in addition, that the
Company has received and in the future will receive from third parties
confidential or proprietary information "Third Party Information")
subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain
limited purposes. During the term of their Engagement and thereafter,
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Employee will hold Third Party Information in the strictest confidence
and will not disclose to anyone (other than Company personnel who need
to know such information in connection with her work for the Company)
or use, except in connection with her work for the Company, Third
Party Information unless expressly authorized by an officer of the
Company in writing.
5.5. No Improper Use of Information of Prior Employers and Others. During
the Engagement of Employee by the Company, Employee will not
improperly use or disclose any confidential information or trade
secrets, if any, of any former employer or any other person to whom
Employee have an obligation of confidentiality, and Employee will not
bring onto the premises of the Company any unpublished documents or
any property belonging to any former employer or any other person to
whom Employee have an obligation of confidentiality unless consented
to in writing by that former employer or person. Employee will use in
the performance of her duties only information which is generally
known and used by persons with training and experience comparable to
that of Employee, which is common knowledge in the industry or
otherwise legally in the public domain, or which is otherwise provided
or developed by the Company.
5.6. Assignment of Inventions.
5.6.1. Proprietary Rights. The term "Proprietary Rights" shall mean
all trade secret, patent, copyright, mask work and other
intellectual property rights throughout the world.
5.6.2. Assignment of Inventions. Employee hereby assigns and agrees to
assign in the future (when any such Inventions or Proprietary
Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company rights, if any, that the
Company believes may belong to the Employee, together or
separately, as this may apply to technology and intellectual
property acquisition ideas submitted to the Company - the
"Submissions". In the circumstances that the counsel for the
Company believes the Employee have authorship rights to any of
the Submissions, the Employee, individually, shall assign, upon
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request by the Company, if the form requested and when requested,
all their individual and/or collective right, title and interest
in and to any and all Inventions (and all Proprietary Rights with
respect thereto) whether or not patentable or registrable under
copyright or similar statutes, made or conceived or reduced to
practice or learned by them, either alone or jointly with others,
during the period of their engagement with the Company.
Inventions assigned to the Company, or to a third party as
directed by the Company pursuant to this provision, are
hereinafter referred to as "Company Inventions."
5.6.3. Government or Third Party. Employee also agrees to assign all
their right, title and interest in and to any particular
Invention to a third party, including without limitation the
United States, as directed by the Company. Works for Hire:
Employee acknowledges that all original works of authorship which
are made by him (solely or jointly with others) within the scope
of Engagement by Employee and which are protectable by copyright
are "works made for hire," pursuant to United States Copyright
Act (17 U.S.C. Section 101).
5.6.4. Enforcement of Proprietary Rights. Employee will assist the
Company in every proper way to obtain, and from time to time
enforce, United States and foreign Proprietary Rights relating to
Company Inventions in any and all countries. To that end Employee
will execute, verify and deliver such documents and perform such
other acts (including appearances as a witness - with reasonable
fees and costs paid by the Company) as the Company may reasonably
request for use in applying for, obtaining, perfecting,
evidencing, sustaining and enforcing such Proprietary Rights and
the assignment thereof. In addition, Employee will execute,
verify and deliver assignments of such Proprietary Rights to the
Company or its designee. Employee obligation to assist the
Company with respect to Proprietary Rights relating to such
Company Inventions in any and all countries shall continue beyond
the termination of Employee engagement, but the Company shall
compensate Employee at a reasonable rate after Employee
termination for the time actually spent by Employee at the
Company's request on such assistance.
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6. No CONFLICTING OBLIGATION. Employee represents that their performance of
all the terms of this Agreement does not and will not breach any agreement
to keep in confidence information acquired by Employee in confidence or in
trust prior to the Engagement by the Company.
7. RETURN OF COMPANY DOCUMENTS. When the work by Employee is concluded or
terminated, Employee will deliver to the Company any and all drawings,
notes, memoranda, specifications, devices, formulas, and documents,
together with all copies thereof, and any other material containing or
disclosing any Company Inventions, Third Party Information or Proprietary
Information of the Company.
8. TERMINATION. This Agreement may be terminated by the Company in the event
of the sale of the Company, or for any other reason effective December 31,
2002 or thereafter. Any obligation to pay salary by Color-Spec Technologies
Inc. is deemed void and of no effect.
9. PERMISSION TO PUBLISH. The Company is a publicly traded company and as such
there may be the necessity or desire on the part of the Company to publish
the works of Employee, as may from time to time be: a)contracted, b) agreed
to be contracted or completed, c) reports on review and analysis of the
Company's products, etc. provided by Employee. The Employee understands and
agrees to this and understands that the publications may include, by way of
example: SEC Filings, PR Newswire, the Company's web sites, dissemination
through PR firms.
10. No PARTNERSHIP RELATIONSHIP. Nothing in this Agreement, either express or
implied may be interpreted to create a partnership or common interest
between the Company and the Employee, but rather the relationship is an
Employer/ Employee relationship.
11. NOTICES. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address
as the party shall specify in writing. Such notice shall be deemed given
upon personal delivery to the appropriate address or if sent by Federal
Express, certified mail, or facsimile seven (7) days after the date of
mailing.
12. GENERAL PROVISIONS.
12.1.1. Severability. In case 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 the other provisions of this
Agreement, and 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 this
Agreement shall for any reason be held to be excessively broad as to
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.
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12.1.2. Successors and Assigns. This Agreement will be binding upon the
successors, heirs, executors, administrators and other legal
representatives or the respective parties herein.
12.1.3. Survival. The provisions of this Agreement shall survive the
termination of Engagement and the assignment of this Agreement by the
Company to any successor in interest or other assignee.
12.1.4. Engagement. Employee agrees and understands that nothing in this
Agreement shall confer any right with respect to continuation of
engagement by the Company, nor shall it interfere in any way with
Employee right or the Company's right to terminate Engagement of
Employee at any time, with or without cause.
12.1.5. Waiver. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by
the Company of any right under this Agreement shall be construed as a
waiver of any other right. The Company shall not be required to give
notice to enforce strict adherence to all terms of this Agreement.
12.1.6. Entire Agreement. The obligations pursuant to this Agreement shall
apply to any time during which Employee was previously engaged, or is
in the future engaged, by the Company as a Employee or independent
contractor if no other agreement governs nondisclosure and assignment
of inventions during such period. This Agreement is the final,
complete and exclusive agreement of the parties with respect to the
subject matter hereof and supersedes and merges all prior discussions
between the parties. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing and signed by the party to be charged. Any
subsequent change or changes in duties or compensation will not affect
the validity or scope of this Agreement.
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12.1.7. Benefit of Counsel. Each party to this Agreement have had the
benefit of legal counsel and representation prior to executing this
Agreement.
THE PARTIES HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
The Employee:
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
The Company:
PocketSpec Technologies Inc.
By: /s/ F. Xxxxxxx Xxxxxx
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F. Xxxxxxx Xxxxxx, CEO and President
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