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EXHIBIT (10)
Work for Hire Agreement
between the Company, Xxxx Xxxxxxxx and Xxxxx X. Xxxxxx
dated October 5, 1998
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EXHIBIT (10)
WORK FOR HIRE AGREEMENT
This Agreement is made effective as of October 5, 1998, between MigraTEC, Inc.,
located at 00000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (hereinafter
"MigraTEC") and Xxxx Xxxxxxxx located at 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000
and Xxxxx X. Xxxxxx located at 0000 Xxxxx Xx Xxxxx, Xxxxxx, Xxxxx 00000
(hereinafter collectively referred to as "Contractors").
1. GENERAL. Subject to this Agreement, MigraTEC hereby hires Contractors, and
Contractors hereby agrees, to provide the services to MigraTEC as described in
the Statement of Work attached hereto as Exhibit A and referred to under Section
4 (hereinafter collectively referred to as the "Services").
2. INDEPENDENT CONTRACTOR. Contractors will perform the Services as an
independent contractor of MigraTEC and this Agreement will not be construed to
create a partnership, joint venture or employment relationship between
Contractors and MigraTEC. Contractors will not represent itself to be an
employee or agent of MigraTEC and will not enter into any agreement on behalf of
MigraTEC.
3. TERM. This Agreement will become effective, as of the date set forth above,
upon its execution by Contractors and MigraTEC and will continue until the
Services are completed unless earlier terminated pursuant to Section 9
hereinafter.
4. SERVICES. Contractors will use their reasonable commercial efforts to perform
all Services in a professional and workmanlike manner satisfactory to MigraTEC,
as a work made for hire, and in accordance with the applicable Statement of Work
attached as Exhibit A. Unless otherwise agreed by Contractors, MigraTEC will
provide all equipment, work space, supplies and other items necessary or
appropriate to perform the Services. Contractors may perform the Services at
MigraTEC's premises or such other premises that MigraTEC and Contractors may
deem appropriate. MigraTEC will permit Contractors to have reasonable access to
MigraTEC's premises, personnel, computer and telephone equipment while
performing any of the Services at MigraTEC's premises.
5. PAYMENT FOR SERVICES. MigraTEC will pay Contractors fees for Services
rendered hereunder in accordance with Exhibit B.
6. REIMBURSABLE EXPENSES. MigraTEC will reimburse Contractors for the necessary
and reasonable out-of-pocket expenses that Contractors may incur in performing
the Services ("Reimbursable Expenses") provided such Reimbursable Expenses have
been approved in advance by MigraTEC. Contractors will furnish MigraTEC with the
appropriate receipts for all Reimbursable Expenses together with invoices for
Services submitted to MigraTEC and such Reimbursable Expenses will be paid by
MigraTEC within thirty (30) days of receipt.
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7. OWNERSHIP RIGHTS. a. Deliverables. Contractors agree that upon completion of
the Services, all data, information and other material acquired or compiled by
Contractors in respect to the Services, including source code, object code and
technical documentation, hereinafter collectively referred to as the "Work
Product", shall be delivered to MigraTEC. Contractors shall not retain any
copies of any items included in Work Product and shall not be entitled to
prepare derivative works utilizing any items included in Work Product.
b. Ownership. Full and exclusive rights and ownership in all Work
Product and in any and all related patent rights, trademarks, copyrights, trade
secrets, and any other proprietary rights which Contractors possess or may be
entitled to shall vest in and is hereby assigned to MigraTEC as a work made for
hire. Contractors shall retain no right, ownership or title in the Work Product
or in any related patent rights, trademarks, copyrights, trade secrets, or any
other proprietary rights. The parties hereto agree that all Work Product and
rights thereto are being sold in their entirety to MigraTEC for whatever use it
desires, and nothing contained herein shall be deemed to construe a mere license
to MigraTEC.
c. Cooperation by Contractors. Should MigraTEC or any of its agents or
representatives seek to obtain letters patent, trademarks or copyrights in any
country of the world on all or part of the Work Product, Contractors agree to
cooperate fully without compensation in providing information, completing forms,
performing actions and obtaining the necessary signatures or assignments
required to obtain such letters patent, trademarks or copyrights. In the event
MigraTEC shall be unable for any reason to obtain Contractors' signatures on any
document necessary for any purpose set forth in the foregoing sentence,
Contractors hereby irrevocably designate and appoint each of MigraTEC and its
duly authorized officers and agents as Contractors' agent and Contractors'
attorney-in-fact to act for and in Contractors' behalf and stead to execute and
file any such document and to do all other lawfully permitted acts to further
any such purpose with the same force and effect as if executed and delivered by
Contractors.
8. WARRANTY. Contractors represents and warrants that Contractors will perform
the Services in a good workmanlike and professional manner in accordance with
the description set forth in the Statement of Work attached as Exhibit A. ALL
OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT
LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSE), ARE HEREBY DISCLAIMED.
9. EXTENSION AND TERMINATION. a. Extension. The parties may extend the term of
this Agreement by mutual written agreement. MigraTEC shall use best efforts to
give Contractors at least 30 days notice if extension is contemplated by
MigraTEC.
b. Termination for Cause. Either party may terminate this Agreement
immediately upon notice to the other party, and without prejudice to any other
remedies, if (i) the other party breaches any of its obligations hereunder and
fails to remedy such breach to the notifying party's satisfaction within fifteen
(15) days after it demands such cure or (ii) the other party becomes insolvent
or bankrupt, assigns all or a substantial part of its business or assets for the
benefit of
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creditors, permits the appointment of a receiver for its business or assets,
becomes subject to any legal proceeding relating to insolvency, reorganization
or the protection of creditors' rights or otherwise ceases to conduct business
in the normal course.
10. CONSEQUENCES OF EXPIRATION OR TERMINATION. Upon the expiration or
termination of this Agreement for any reason, MigraTEC will promptly pay
Contractors all fees and Reimbursable Expenses that may be due and outstanding
related to the Services that Contractors has performed, and Contractors will
deliver to MigraTEC all notebooks, documentation and all other items belonging
to MigraTEC or containing the work product owned by MigraTEC resulting from
Contractors' work under this Agreement.
11. NON-SOLICITATION. Neither party shall solicit or employ, directly or
indirectly, as an employee or independent contractor, the personnel of the other
party for a period of 12 months after termination.
12. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR
INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF THE
OTHER PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL,
PROFITS, USE OF MONEY, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF
OTHER WORK OR IMPLEMENTATION OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE
OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
13. NOTICES. Any notice or approval required or permitted under this Agreement
will be given in writing and sent by certified mail, return receipt requested,
postage prepaid, to the address specified below or to any other address that may
be later designated in writing by prior notice. Any notice sent pursuant hereto
will be deemed to have been received 3 days after the date of its posting.
If to MigraTEC: If to Contractors:
MigraTEC, Inc. Xxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxxx 0000 Xxxxxxx Xxxxx
Xxxxx 000 Xxxxxx, Xxxxx 00000 and
Xxxxxx, Xxxxx 00000 Xxxxx X. Xxxxxx
Attn: Xxxx X. Xxxxx 0000 Xxxxx Xx Xxxxx
Xxxxxx, Xxxxx 00000
14. ASSIGNMENT. Contractors may not assign or otherwise transfer this Agreement
or any if its rights or obligations hereunder without MigraTEC's prior approval.
MigraTEC may not assign this Agreement unless pursuant to notice and in
connection with a sale, consolidation or other reorganization of MigraTEC's
business.
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15. WAIVERS. No delay or failure by any party hereto in exercising or enforcing
any of its rights or remedies hereunder and no course of dealing or performance
with respect thereto will constitute a waiver thereof. All rights and remedies
will be cumulative and not exclusive of any other rights or remedies.
16. AMENDMENTS. No amendment of modification of this Agreement will be effective
unless made in writing and signed by both parties hereto.
17. SEVERABILITY. This Agreement is governed by the laws of the state of Texas.
If any provision of this Agreement is held invalid, illegal or unenforceable in
any jurisdiction, for any reason, then, to the full extent permitted by law (a)
all other provisions hereof will remain in full force and effect in such
jurisdiction and will be liberally construed in order to carry out the intent of
the parties hereto as nearly as may be possible and (b) any court having
jurisdiction thereover will have the power to reform such provision to the
extent necessary for such provision to be enforceable under applicable law.
18. ENTIRE AGREEMENT. This Agreement and its Exhibits constitute the complete
and entire agreement between Contractors and MigraTEC with respect to the
subject matter hereof and all prior or contemporaneous oral or written
communications, understandings or agreements between Contractors and MigraTEC
with respect to such subject matter are hereby superseded in their entireties.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first set forth above.
MIGRATEC, INC. CONTRACTORS
By: /s/ XXXX X. XXXXX Signature: /s/ XXXX XXXXXXXX
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Name: Xxxx X. Xxxxx Name: Xxxx Xxxxxxxx
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Title: C.F.O. Signature: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
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EXHIBIT A
STATEMENT OF WORK
I. DESCRIPTION OF SERVICES/WORK PRODUCT: Development and delivery of
computer source code, in the form of a Microsoft Visual C++ 5.x
Project, which can be compiled and built into a running application
program herein referred to as "MTIDev". This program will implement a
functional Microsoft Visual C++ Integrated Development
Environment-style User Interface framework which contains, or
interfaces to, MigraTEC 2000 components, as specified in VI, below. The
source code will be written in the C++ language, will utilize Microsoft
Foundation Class Library object classes where possible, and will be
designed and implemented to adhere to the "object-oriented" programming
model.
It is understood that certain third-party components of MTIDev, which
are integral to the proper functioning of MTIDev, and are specified as
"Stingray Components" in VI below, will not be developed under this
agreement but will, nevertheless, interface to MTIDev in order to
provide proper functionality. MigraTEC is responsible for obtaining the
rights to these third-party components.
II. ESTIMATED START DATE: OCTOBER 5, 1998
III. ESTIMATED LENGTH OF PROJECT: FIVE WEEKS
IV. ADDITIONAL SPECIFICATIONS:
MTIDev will interface to the current versions of the following MigraTEC
2000 components:
[a] Inventory "backend" component;
[b] Parser component;
[c] Branch bank component;
[d] Remediator component;
[e] Databases which support [a] through [d].
MTIDev will utilize the following third-party "Stingray components":
[a] file editor component implemented by Objective Edit product;
[b] tree view, tabbed window, "file open" dialog box, and listbox
components implemented by Object Toolkit Basic product.
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MTIDev source code will be organized into the following files:
[a] stdafx.cpp
[b] childfrm.cpp
[c] mainfrm.cpp
[d] MTIDev.cpp
[e] MTIDevDoc.cpp
[f] MTIDevView.cpp
[g] fileview.cpp
[h] hnodecomponent.cpp
[i] hnodefile.cpp
[j] hnodeheader.cpp
[k] hnodeproject.cpp
[l] newprojectdlg.cpp
[m] configurationdlg.cpp
[n] outbar.cpp
[o] prjbar.cpp
[p] propertiesdlg.cpp
[q] splash.cpp
[r] header files required by the above;
[s] resource files required by the above;
[t] other project files required by the above;
[u] database recordeset interface files designated xxxRS.cpp.
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EXHIBIT B
PAYMENT FOR SERVICES
Each of Contractors will be granted a two (2) year option to purchase 100,000
shares of common stock of MigraTEC at a price of $0.12 per share (i.e., a
100,000 share option granted to Xxxx Xxxxxxxx and a 100,000 share option to
Xxxxx X. Xxxxxx). Such options shall be exercisable for a two (2) year period at
any time after the date of acceptance of the Services by MigraTEC as being
complete and delivery of all items pursuant to the Work for Hire Agreement. Such
acceptance and delivery shall be evidenced by a certificate of acceptance
prepared by MigraTEC and delivered to Contractors.
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CERTIFICATE OF ACCEPTANCE
Date: November 19, 1998
This document certifies that MigraTEC, Inc., has received the Services and/or
Work Product described in Exhibit A to the Work for Hire Agreement, dated
October 5, 1998, by and between MigraTEC, Inc., Xxxx Xxxxxxxx and Xxxxx X.
Xxxxxx, a copy of such Exhibit A being attached hereto. This document certifies
the acceptance by MigraTEC, Inc., of the Services and/or Work Product as being
complete and in compliance with the requirements of such Exhibit A.
By: /s/ XXXX XXXXXXX
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Xxxx Xxxxxxx
Date: November 19, 1998
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Title: Chief Operating Officer
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