EXHIBIT 10.11 EMPLOYMENT AGREEMENT WITH XXXXX XXXXXXXXX
Amendment to Employment Agreement
The undersigned parties to an existing employment and/or engagement agreement
agree to the following changes to the said agreement.
Parties:
Xxxxx Xxxxxxxxx CD Rom, Inc.
PocketSpec Technologies Inc.
That Xxxxx Xxxxxxxxx'x employment/engagement agreement shall be continued
for 6 months at $2,000 per month, effective March 1, 2002. He will be reimbursed
for necessary travel. In addition, and in consideration of leads generated in
the commercial - retail paint industry, Xx. Xxxxxxxxx shall be paid a salary
bonus of $10,000 if 100 of the color products of the Corporation is sold by
April 1, 2003 on a sliding scale basis of up to $30,000 bonus if 1,000 devices
are sold by April 1, 2003. This will be valid, even if Xx. Xxxxxxxxx does not
continue employment beyond September 1, 2002. That CD Rom, Inc.'s agreement may
be terminated at any time, for any reason by PocketSpec Technologies, Inc. Dated
this 30th day of March, 2002
/s/ Xxxxx Xxxxxxxxx
--------------------------------------------------
Xxxxx Xxxxxxxxx, individually and for CD Rom, Inc.
/s/ F. Xxxxxxx Xxxxxx
----------------------------
F. Xxxxxxx Xxxxxx
PocketSpec Technologies Inc.
PocketSpec Technologies Inc.
By: /s/ F. Xxxxxxx Xxxxxx
-----------------------
F. Xxxxxxx Xxxxxx
NON-DISCLOSURE OF PROPRIETARY
-----------------------------
INFORMATION AND INVENTION
-------------------------
ASSIGNMENT AGREEMENT
--------------------
In consideration of my engagement, employment or continued employment or
engagement (hereafter "Employment") by Color-Spec Technologies, Inc., (the
"Company"), whether in the capacity of an employee or independent
contractor/consultant, and the compensation paid to me, and other good and
valuable consideration the receipt of which is hereby acknowledged, I hereby
agree as follows:
1. Nondisclosure.
1.1 Recognition of Company's Rights; Nondisclosure. At all times during my
Employment and thereafter, I 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 my work for the
Company, or unless an officer of the Company expressly authorizes such
In writing. I will obtain Company's written approval before publishing
or submitting for publication any material (written, verbal, or
otherwise) that relates to my work at Company and/or incorporates any
Proprietary Information. I hereby assign to the Company any rights I
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.
1.2 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, I am 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 my own skill, knowledge, know-how and
experience to whatever extent and in whichever way I wish.
1.3 Non-Solicitation. I shall not during the term of my Employment, and
for a period of one year thereafter, directly or indirectly, use any
Proprietary Information to:
1.3.1solicit, induce, entice, or attempt to entice, any employee of
the Company to terminate his or her employment with the Company;
1.3.2solicit, 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 my termination;
2
1.3.3directly or indirectly solicit or provide services to any
customer of the Company including those who have been the
Company's customers within the one year preceding my termination.
1.4 Third Party Information. I understand, in addition, that the Company
has received and in the future will receive from third parties
confidential or proprietary Information ("Third Party Information's
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 my Employment and thereafter, I
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 their work for the Company) or
use, except in connection with my work for the Company, Third Party
Information unless expressly authorized by an officer of the Company
in writing
1.5 No Improper Use of Information of Prior Employers and Others. During
My Employment by the Company. I will not improperly use or disclose
any confidential Information or trade secrets, if any, of any former
employer or any other person 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 to whom I have an obligation of
confidentiality unless consented to in writing by that former employer
or person. I will use In the performance of my duties only Information
which Is generally known and used by persons with training and
experience comparable to my own, which is common knowledge In the
industry or otherwise legally In the public domain, or which is
otherwise provided or developed by the Company.
2. Assignment of Inventions.
2.1 Proprietary Rights. The term "Proprietary Rights" shall mean all trade
secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2 Prior Inventions. Inventions, If any, patented or unpatented, which I
made prior to the commencement of my Employment with the Company are
excluded from the scope of this Agreement, with the exception of any
inventions, patented or unpatented, which are the subject of an
assignment agreement with the Company. To preclude any possible
uncertainty, I have set forth on Exhibit A (Previous Inventions,
attached hereto and made a part of this Agreement), in sufficient
detail to enable the Company to determine the scope, purpose and
application of such invention, a complete list of all Inventions that
I have, alone or jointly with others, conceived, developed or reduced
to practice or caused to be conceived, developed or reduced to
practice prior to the commencement of my Employment with the Company,
that I consider to be my property or the property of third parties and
that I wish to have excluded from the scope of this Agreement unless
such matters are the subject of an assignment (collectively referred
to as "Prior Inventions"). If disclosure of any such Prior Invention
would cause me to violate any prior confidentiality agreement, I
understand that I am not to list such Prior Inventions in Exhibit A
but am only to disclose a cursory name for each such Invention, a
listing of the party (ies) to whom it belongs and the fact that full
disclosure as to such inventions has not been made for that reason. A
space is provided on Exhibit A for such purpose. If no such disclosure
s attached, I represent that there are no Prior Inventions. If, in the
course of my Employment with the Company, I Incorporate a Prior
Invention Into a Company product, process or machine, the Company is
hereby granted and shall have a nonexclusive, royalty-free,
Irrevocable, perpetual, worldwide license (with rights to sublicense
through multiple tiers of sub licensees) to make, have made, modify,
use and sell such Prior Invention. Notwithstanding the foregoing, I
agree that I will not Incorporate, or permit to be incorporated, Prior
Inventions in any Company Inventions without the Company's prior
written consent
3
2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I hereby
assign and agree 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 all my 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 me, either alone or jointly with others, during
the period of my Employment with the Company. Inventions assigned to
the Company, or to a third party as directed by the Company pursuant
to this Section 2, are hereinafter referred to as "Company
Inventions."
2.4 Nonassignable Inventions. I recognize that, In the event of a
specifically applicable state law, regulation, rule, or public policy
("Specific Inventions Law"), this Agreement will not be deemed to
require assignment of any Invention which qualities fully for
protection under a Specific Inventions Law by virtue of the fact that
any such Invention was, for example, developed entirely on my own time
without using the Company's equipment, supplies, facilities, or trade
secrets and neither related to the Company's actual or anticipated
business, research or development, nor resulted from work performed by
me for the Company. In the absence of a Specific Inventions Law, the
preceding sentence will not apply.
2.5 Obligation to Beep Company Informed. During the period of my
Employment and for twelve (12) months after termination of my
Employment with the Company, I will promptly disclose to the Company
fully and in writing all Inventions authored, conceived or reduced to
practice by me, either alone or jointly with others. In addition, I
will promptly disclose to the Company all patent applications filed by
me or on my behalf within a year after termination of Employment At
the time of each such disclosure, I will advise the Company in writing
of any Inventions that I believe fully qualify for protection under
the rovisions of a Specific Inventions Law; and I will at that time
provide to the Company In writing all evidence necessary to
substantiate that belief. The Company will keep in confidence and will
not use for any purpose or disclose to third parties without my
consent any confidential information disclosed in writing to the
Company pursuant to this Agreement relating to Inventions that qualify
fully for protection under a Specific Inventions Law. I will preserve
the confidentiality of any Invention that does not fully qualify for
protection under a Specific Inventions Law.
2.6 Government or Third Party. I also agree to assign all my 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.
2.7 Works for Hire. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope
of my Employment and which are protectable by copyright are "works
made for hire," pursuant to United States Copyright Act (17 D.S.C.
Section 101).
4
2.8 Enforcement of Proprietary Rights. I 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 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
Proprietary Rights and the assignment thereof. In addition, I will
execute, verify and deliver assignments of such Proprietary Rights to
the Company or its designee. My 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 my
Employment, but the Company shall compensate me at a reasonable rate
after my termination for the time actually spent by me at the
Company's request on such assistance.
2.9 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 the Company and Its duly authorized
officers and agents as my agent and attorney In fact, which
appointment Is coupled with an interest, 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 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, which I now or may hereafter have for Infringement
of any Proprietary Rights assigned hereunder to the Company.
3. Compensation. As compensation for said Employment, the Company shall be as
set forth In Schedule A, or as agreed upon by Company and myself, from time
to time in further writings.
4. Records. I agree to keep and maintain adequate and current records (In the
form of notes, sketches, drawings and in any other form that may be
required by the Company) of all Proprietary Information. developed by me
and all Inventions made by me during the period of my Employment at the
Company, which records shall be available to and remain the sole property
of the Company at all times.
5. Additional Activities. I agree that during the period of my Employment by
the Company I will not, without the Company's express written consent,
engage In any employment or business activity which Is competitive with, or
would otherwise conflict with, my Employment by the Company.
6. No Conflicting Obligation. I represent that my performance of all the terms
of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence information acquired by me in
confidence or in trust prior to my Employment by the Company. I have not
entered into, and I agree I will not enter into, any agreement either
written or oral in conflict herewith.
7. Return of Company Documents. When I leave the Employment of the Company, I
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. I further agree that any property situated on the Company's
premises and owned by the Company, including disks and other storage media,
filing cabinets or other work areas, is subject to inspection by Company
personnel at any time with or without notice. Prior to leaving, I will
cooperate with the Company in completing and signing the Company's
termination statement.
8. Deductions for Unreturned Property. I agree to return all of the Company's
equipment and property, Including, but not limited to, laptop or other
computers and cellular telephones, upon termination of Employment. I
authorize the Company to deduct the replacement cost of any such unreturned
equipment or property, Including reasonable attorneys' fees Incurred In
securing the return of said property, from any monies owed by the Company
to me a the time of termination. I acknowledge that such a deduction
constitutes "a lawful charge or indebtedness" pursuant to Colorado law,
C.B.S.8-4101, et seq.
9
9. Legal and Equitable Remedies.
9.1 I agree that the provisions of Section 1 of this Agreement are
reasonable and necessary protection for the Immediate and substantial
Interests of the Company, and that any violation of these provisions
would cause substantial and irreparable Injury to the Company. Because
my services are personal and unique and because I may have access to
and become acquainted with the Proprietary Information of the Company,
the Company shall have the right to enforce this 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 Agreement.
9.2 In the event of a breach by me of any of the provisions in Section 1,
I shall pay to the Company liquidated damages in the amount of
$5,000.00 for each such breach, in addition to any relief Identified
in Section 8 herein. The parties agree that, because of the difficulty
in ascertaining actual damages from such breach, this amount is a
reasonable estimate of the presumed actual damages caused by a breach
of any of the provisions In Section 1, and that the parties intend to
liquidated damages for any such breach.
10. 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 certified
or registered mail, three (3) days after the date of mailing.
11. Notification of New Employer. In the event that I leave the employ of the
Company, I hereby consent to the notification of my new employer of my
rights and obligations under this Agreement.
12. General Provisions.
12.1 Governing Law; Consent to Personal Jurisdiction. This Agreement will
be governed by and construed according to the laws of the State of
Colorado. I hereby expressly consent to the personal jurisdiction of
and venue in the state and federal courts located in the City and
County of Denver, Colorado, for any lawsuit filed there against me by
the Company arising from or related to this Agreement.
12.2 Dispute Resolution. Unless otherwise prohibited by law or specified
below, the parties hereto agree that, In the event of a dispute
arising under the terms and conditions of this Agreement, the laws of
the State of Colorado shall apply In determining any matters
pertaining to the dispute, and that any disputes arising hereunder
shall be resolved pursuant to arbitration In Denver, Colorado, before
an arbitrator to be decided in the sole discretion of the Company.
However, nothing in this section is intended to prevent either party
from obtaining injunctive relief in any court of competent
jurisdiction to prevent irreparable harm pending the conclusion of any
such arbitration.
12.3 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.
6
12.4 Successors and Assigns. This 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 Its assigns.
12.5 Survival. The provisions of this Agreement shall survive the
termination of my Employment and the assignment of this Agreement by
the Company to any successor In Interest or other assignee.
12.6 Employment. I agree and understand that nothing In this Agreement
shall confer any right with respect to continuation of employment by
the Company, nor shall it interfere In any way with my right or the
Company's right to terminate my employment at any time, with or
without cause.
12.7 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.
12.8 Entire Agreement The obligations pursuant to Sections 1 and 2 of this
Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant
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 us. 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 my duties, salary or compensation will
not affect the validity or scope of this Agreement
12.9 Attorneys' Fees. If the Company brings a suit or any other type of
legal action or process, including arbitration, to enforce its rights
under this Agreement it shall be entitled to collect from me
reasonable attorneys' fees and expenses, including the fees and
expenses incurred for any appeals.
This AGREEMENT shall be effective as of the first day of my Employment or
continued Employment with the Company, which date is June 2, 2001.
I have read this agreement carefully and understand its terms. I have
completely filled out Exhibit A to this agreement.
Dated: September 11, 2001
Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Accepted and Agreed To:
COLOR-SPEC TECHNOLOGIES, INC. By:
/s/ F.Xxxxxxx Xxxxxx
--------------------------------------------
F.Xxxxxxx Xxxxxx, CEO and President
0000 Xxxx 0xx Xxxxxx Xxxxxx, Xxxxxxxx 00000
Dated: September 11, 2001
7
