EXHIBIT 10.09
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is entered into this 1st day of
May, 2014 ("EFFECTIVE DATE"), by and between Dominovas Energy Corporation, a
Nevada corporation (together with its wholly-owned subsidiary, Dominovas
Technologies, LLC, a Delaware limited liability company, the "COMPANY") and
Xxxxxxx Xxxxx (the "ENGINEER"). The Company desires the Engineer's employment
with the Company, and the Engineer wishes to accept such employment upon the
terms and conditions set forth in this Agreement. In consideration of the mutual
covenants of the parties hereinafter set forth, the parties agree upon the
following terms of continued employment of the Engineer by the Company: ARTICLE
I TERMS OF EMPLOYMENT
Section 1.1. Employment Duties. The Company hereby employs the Engineer,
and the Engineer hereby accepts employment by the Company. The duties of the
Engineer shall include those delegated to him from time to time by the Company.
The Engineer shall at all times comply with, and be subject to, those policies
and procedures as the Company may establish from time to time which are
applicable to all employees generally.
Section 1.2. Fiduciary Duties. The Engineer acknowledges and agrees that at
all times during the employment relationship, the Engineer owes fiduciary duties
to the Company, including but not limited to the fiduciary duties of the highest
loyalty, fidelity and allegiance to act at all times in the best interests of
the Company, to make full disclosure to the Company of all information that
pertains to the Company's business and interests, to do no act which would
injure the Company's business, its interest, or its reputation, and to refrain
from using for Engineer's own benefit or for the benefit of others any
information or opportunities pertaining to the Company's business or interest
that are entrusted to Engineer or that he learned while employed by the Company.
The Engineer agrees to devote his full time and efforts to the diligent
performance of his duties.
Section 1.3. Freedom to Contract. As a condition to Engineer's employment
by Company, Engineer affirms and represents that he has not executed any other
document and is under no obligation to any former employer, or other person or
entity which in any way could be considered inconsistent with, or which poses
any restriction upon his acceptance of employment with Company and the
performance of duties and responsibilities on behalf of Company under this
Agreement.
Section 1.4. Term and Termination.
(a) Term. The initial term of Engineer's employment ("INITIAL TERM")
shall begin on May 1, 2014 and shall continue for five (5) years from the
Effective Date, unless earlier terminated in accordance with this Section
1.4. The Company may, at its option, renew this Agreement for no more than
two (2) additional consecutive terms of one one-year (each, a "RENEWAL
TERM") by giving notice to the Engineer at least ninety (90) calendar days
prior to the expiration of the preceding Initial Term or Renewal Term. For
purposes hereof, "TERM" shall include the Initial Term and, if applicable,
any Renewal Terms.
(b) Termination Upon Death or Disability. The Engineer's employment
shall terminate automatically in the event of the Engineer's death or
disability (as defined below), and the Company shall pay the Engineer or
the Engineer's estate or representative, as applicable, the compensation
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earned through the date of the Engineer's death or the date he is
determined to have the disability.
(c) Termination by Company. The Company may terminate the Engineer's
employment based upon Company's determination of what is in the best
interest of the Company. If the Company terminates the Engineer's
employment pursuant to this Section 1.4(c), then the Company shall pay the
Engineer only such compensation as shall have accrued through the date of
termination. Engineer may choose to terminate his employment, having first
offered the Company 90 days prior notification of said intent to leave the
Company.
(d) For Just Cause Termination. During the Term, the Engineer shall be
subject to discharge by the Company for Just Cause only by consent of
Company's CEO and COO. Company shall pay the Engineer only such
compensation as shall have accrued through the date of termination.
(e) "Disability" Defined. For purposes hereof, "DISABILITY" shall be
defined as Engineer's inability by reason of illness or other physical or
mental incapacity to perform the duties required by his employment for any
consecutive one (1) month period, provided that notice of any termination
by Company because of Engineer's "disability" shall have been given to
Engineer prior to the full resumption by him of the performance of such
duties. The Company expressly reserves the right to determine the duties of
Engineer's position in its sole discretion. In accordance with applicable
federal, state and/or local law, the Engineer will cooperate and provide
the Company with the necessary information to make a determination
concerning the Engineer's ability to perform the essential functions of the
position and the likely duration of any period of incapacity.
(f) "Just Cause" Defined. As used herein, the term "JUST CAUSE" shall
include and shall be determined in good faith by the Company:
(i) a material breach by the Engineer of any of the terms of this
Agreement;
(ii) the failure by the Engineer to perform the services reasonably
required of him to the satisfaction of the Company or to abide by
reasonable directives of the Company (other than due to
disability);
(iii)the indictment or conviction of or pleading of guilty or no
contest by the Engineer to a felony;
(iv) the commission by the Engineer of an act of fraud or sabotage or
any other act involving moral turpitude, gross misconduct or
dishonesty;
(v) conversion, theft, embezzlement or misappropriation by the
Engineer of any monies or properties of the Company other than
personal use of immaterial amounts of office supplies;
(vi) the Engineer causing material damage to the business of the
Company;
(vii)the violation by Engineer of any provision of a Company policy
or procedure relating to securities laws and regulations or
conflict of interest policies;
(viii) the fraudulent breach of any representations or warranties or
the intentional breach of covenants or obligations under the
Purchase Agreement; or
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(viii) the non-adherence to company's policies specific to the meaning
of "full-time" employment and its requirement of physical
attendance Monday through Friday, required and mandated company
travel, vacation time, absences both excused and unexcused.
Section 1.5. Compensation. As compensation for Engineer's services during
the Term of this Agreement, the Company agrees to compensate Engineer as
follows:
(a) Salary. During the Term of this Agreement, Engineer shall be
compensated on the basis of an annual salary in the amounts provided below
(the "SALARY"), payable in installments in accordance with the Company's
regular payroll practice. The amount of the Salary shall be as follows:
1. Beginning on the Effective Date until sixty (60) months after the
Effective Date, the Salary shall be $112,000.00.
2. The Salary shall be paid bi-weekly via a certified and reputable
payroll service agency.
3. Employee shall vest 25,000 shares of Dominovas Energy Corp stock
annually that is only fully vested and fully deliverable after
five years of continuous and satisfactory employment.
(b) Insurance. During the Term of the Agreement, Engineer shall be
eligible to participate (subject to uniformly applicable requirements for
participation), in any health insurance plan adopted by the Company for the
benefit of its employees generally. The Company retains the right at all
times to adopt, modify, or terminate any of its benefits and benefit plans.
(c) Withholding. The Company may withhold from any compensation,
benefits, or other amounts payable to the Engineer under this Agreement or
otherwise all international, federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
ARTICLE II
NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE
Section 2.1. Acknowledgements. Engineer acknowledges that, as of the date
hereof (i) the principal business of Company and its affiliates, including,
without limitation, Dominovas Energy Corp., and or Dominovas Energy Technologies
is in the business of the production, marketing, distribution, operation, and
maintenance of fuel cells and the maintaining of facilities that produce fuel
cells to product electrical power and the provision of goods and services
related thereto (the "BUSINESS"); and (ii) Engineer's duties hereunder will
cause Engineer to have access to and be entrusted with various trade secrets,
including as defined in Chapter 20 of Title 6 of the Delaware Code and other
applicable state laws, which items are owned exclusively by Company and used in
the operation of the Business ("TRADE SECRETS").
Section 2.2. Non-Disclosure. During and after the Term (otherwise than in
the performance of this Agreement), without Company's prior written consent,
Engineer shall not divulge or use any Trade Secrets to or for any person or
entity except when required by law and then only after consultation with Company
or unless such information is in the public domain. In the event that Engineer
becomes or is legally compelled (whether by deposition, interrogatories, request
for documents, subpoena, civil investigative demand or similar process) to
disclose any Trade Secrets, Engineer shall provide Company with prompt, prior
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written notice of such requirement so that Company may seek a protective order
or other appropriate remedy and/or waive compliance with the provisions of this
Section.
Section 2.3. Non-Competition. During the period of Engineer's employment
and for two years thereafter, Engineer will not directly or indirectly, either
as an employee, employer, consultant, agent principal, partner, stockholder,
corporate officer, manager, director, or in any other individual or
representative capacity, engage or participate in any activity or business which
Company shall determine in good faith to be in competition in any substantial
way with the Business anywhere the Company engages in the Business.
Section 2.4. Non-Solicitation. Engineer will not during the course of
Engineer's employment, or for two years thereafter, either directly or
indirectly call on, solicit, or take away, or attempt to call on, solicit or
take away any of Company's customers or employees on behalf of any business that
is in competition in any substantial way with the Business anywhere the Company
engages in the Business.
Section 2.5. Remedies. If Engineer breaches, or threatens to breach, in any
material respect any of the provisions of this Article 2 ("RESTRICTIVE
COVENANTS"), Company shall, in addition to all its other rights hereunder
applicable law and in equity, have the right to seek specific enforcement of the
Restrictive Covenants by any court having jurisdiction, including, without
limitation, the granting of a preliminary injunction which may be granted
without the posting of a bond or other security, it being acknowledged that any
such breach or threatened breach may cause irreparable injury to Company and
that money damages may not provide an adequate remedy to Company.
Section 2.6. Enforceability. If any court of competent jurisdiction
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to the
invalid portions. If any court of competent jurisdiction construes any of the
Restrictive Covenants, or any part thereof, to be unenforceable because of the
duration or geographic scope of such provision or otherwise, such provision
shall be deemed amended to the minimum extent required to make it enforceable
and, in its reduced from, such provision shall then be enforceable and enforced.
Section 2.7. Tolling of Covenants. Any Restrictive Covenant in this
Agreement that is to last for a period of time shall be tolled during any time
the Engineer is in breach of such provision.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1. Remedies for Breach. In the event of a breach of this
Agreement by the Engineer, the Company shall be entitled to all rights and
remedies available to it at law and in equity, and the Engineer agrees to
immediately reimburse the Company for its costs and expenses incurred in
enforcing its rights and remedies under this Agreement, including reasonable
attorneys' fees, costs and expenses.
Section 3.2. Nonwaiver. The Company's failure to insist in one or more
instances, upon the performance of any term or terms of this Agreement shall not
be construed as a waiver or relinquishment of the Company's rights to such
performance or the future performance of such term or terms, and the Engineer's
obligations with respect thereto shall continue in full force and effect. The
Company's consent or approval shall not be deemed to render unnecessary the
obtaining of the Company's consent to or approval of any subsequent act by the
Engineer, whether or not similar to the act so consented to or approved.
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Section 3.3. Construction. This Agreement shall not be construed in favor
of either party based solely upon who prepared this Agreement, and the parties
hereto recognize and agree that this Agreement is the result of their mutual
negotiation and agreement.
Section 3.4. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Company, the Engineer and each of their heirs,
legal representatives, successors and permitted assigns. Because this Agreement
is a contract for personal services, neither it nor any of the Engineer's rights
or obligations hereunder may be assigned by the Engineer to any third party. The
Company may assign this Agreement in its entirety without the prior consent of
the Engineer.
Section 3.5. Governing Law. This Agreement shall be enforced and
interpreted in accordance with the laws of the State of Nevada without regard to
conflict of law principles.
Section 3.6. Survival of Provisions. Notwithstanding any termination of the
Engineer's employment or a termination of this Agreement, the rights and
obligations of the parties set forth in Article II shall survive any such
termination.
Section 3.7. Notices. For purposes of this Agreement, notices and other
communications provided for herein shall be in writing and shall be deemed to
have been given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, or via email
addressed as follows:
(a) As to Engineer:
Xxxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx, XX Xxx #000
Xxxxxxx XX, X0X 0X0
Xxxxxx
Xxxxxxx@xxxxxxxxxxxxxxx.xxx
(b) As to the Company:
Dominovas Energy Corp.
0000 Xxxxxxxxxxxxx Xxx.
Xxxxxxx, XX 00000
xxxxxxx@xxxxxxxxxxxxxxx.xxx
or to such address as either party hereto may have furnished to the other party
in writing in accordance herewith, except that notices of change of address
shall be effective only upon verified receipt.
Section 3.9. Post-Employment Assistance. Engineer agrees that he will
cooperate, assist, and make himself reasonably available to the Company in the
event that the Company needs assistance locating or understanding the work
performed or supervised by Engineer during his employment for a period of two
years after the termination of his employment. Engineer also agrees that that he
will cooperate, assist, and make himself reasonably available to the Company or
its legal counsel on an as needed basis in order for the Company to respond to,
defend, or address any charge, complaint, or claim filed, or any issue raised,
by any person employed or formerly employed by the Company.
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Section 3.10. Jury Trial Waiver. Notwithstanding any rights to a jury trial
for any claims, each party waives any right to a jury trial, and agrees that any
claim of any type (including but not limited to employment discrimination
litigation, claims in contract or tort, or any other claim) involving this
Agreement lodged in any court will be tried, if at all, without a jury.
Section 3.11. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter of this
Agreement, except that this Agreement shall not supersede, or limit the rights
of the Company.
The parties hereto have executed this Employment Agreement on the day and
year first above written.
DOMINOVAS ENERGY CORPORATION ENGINEER
By: /s/ Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxx
--------------------------------- ---------------------------------
Xxxxxxx Xxxxxxx, COO Xxxxxxx Xxxxx
Date: 30 April, 2014 Date: _______________________
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