EMPLOYMENT CONTRACT
EMPLOYMENT
CONTRACT
This employment contract dated this
_l 7th_ day of September , 2008_ BETWEEN:
CROWNBUTTE
WIND POWER, Inc.
000 0xx Xxxxxx
XX
Xxxxxx,
Xxxxx Xxxxxx
00000
(the
"Employer")
OF THE FIRST PART
AND
Xxxxx
X. Xxxxxxx, Ph.D.
(the
"Employee")
OF THE
SECOND PART
WHEREAS:
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1.
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The
Employer is duly organized and existing under the laws of the State of
North Dakota.
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2.
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The
Employer is of the opinion that the Employee has the necessary
qualifications, experience, and abilities to assist and benefit the
Employer in its business.
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3.
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The
Employer desires to employ the Employee, and the Employee has agreed to
accept and enter such employment upon the terms and conditions set out in
this Agreement.
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IN CONSIDERATION OF the
matters described above and of the mutual benefits and obligations set forth in
the Agreement, the receipt and sufficiency of which consideration is hereby
acknowledged, the parties to this Agreement agree as follows:
Governing Law
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1.
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This
Agreement will be construed in accordance with and governed by the laws of
the State of North Dakota.
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Commencement
Date and Term
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2.
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The
Employee will commence full-time employment with the Employer
on
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1
October 2008
(the
commencement date)
Termination
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3.
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Subject
to termination as provided in this Agreement, the Employee is employed
full time. The parties acknowledge that various provisions of this
Agreement survive past termination of
employment.
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Position
and Duties
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4.
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The Employer agrees to employ the Employee as |
Chief
of Operations and Technology
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5.
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and
the Employee agrees to be employed on the terms and conditions set out in
this Agreement. The Employee agrees to be subject to the general
supervision of and act pursuant to the orders, advice and direction of the
Employer.
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6.
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The
Employee will perform any and all duties now and later assigned to the
Employee by the Employer. The Employee will also perform such other duties
as are customarily performed by one holding such a position in other, same
or similar businesses or enterprises as that engaged in by the
Employer.
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7.
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The
Employee agrees to abide by the Employer's rules, regulations, and
practices, including those concerning work schedules, safety procedures
and sick leave, as they may from time to time be adopted or
modified.
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Employee
Compensation
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8.
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For
the services rendered by the Employee as required by this Agreement, the
Employer will compensate the employee a yearly salary of $100,000.00 gross. In
addition to this salary the employee shall be eligible for a SIMPLE
Pension Plan in which the Company shall match the employee's contribution.
The Employee must have received at least $1600.00 in total compensation in
any one preceding calendar
year for the SIMPLE Pension Plan to begin on the first day of the
following year. This compensation will be payable once a month on the
first day of the following month while this Agreement is in force. The
Employer is entitled to deduct from the Employee's compensation any
applicable deductions and remittances as required by law. Any future
increases in salary or other compensation shall be become an integral part
of this agreement and be detailed in addendums to be attached
hereto.
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8.
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In the event that Crownbutte becomes a publicly traded company, the employee shall be offered the opportunity to acquire stock options through a company plan whereby the company shall contribute one half (1/2) the value of the stock as part Employee's compensation. The Company's contribution to this stock option plan shall not exceed fifteen percent (15%) of the employee's gross annual salary. |
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9.
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The
Employee understands that the Employee's compensation as provided in this
Agreement will constitute the full and exclusive monetary consideration
and compensation for all services performed by the Employee and for the
performance of all the Employee's promises and obligations in this
Agreement.
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10.
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The
Employee understands and agrees that any additional compensation to the
Employee (whether a bonus or other form of additional compensation) will
rest in the sole discretion of the Employer, and the Employee will not
earn or accrue any right to additional compensation by reason of the
Employee's employment.
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11.
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The
Employer will reimburse the Employee for all necessary expenses incurred
by the Employee while traveling pursuant to the Employer's
directions.
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12.
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The
Employer agrees to permit a reasonable degree of flexibility in work
hours. In cases where extra time is worked in a day or a week, the
employee waives any right to overtime pay or to equivalent time off in
place of overtime pay.
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Employee
benefits
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13.
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The
Employee will be entitled to only those additional benefits that are
currently in place for the Employer's employees as set out in the
Employment Contracts for those holding the same or similar
positions.
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14.
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All
benefits provided by the Employer are in the Employer's sole discretion
and are subject to change, without compensation, upon the Employer
providing the Employee with 60 days written notice of such change to the
benefits.
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15.
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Vacation.
Regular full-time salaried employees are eligible to participate in the
vacation plan. Vacation is accrued monthly based on 1/12th
of the annual amounts.
No more than one full year's vacation days maybe carried forward to the
following year. Vacation increases with service in accordance with the
following schedule:
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Years
of Continuous Service at
Time
of Vacation
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Amount
of Vacation
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0
but fewer than 3
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(10
days) 2 weeks
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3
but fewer than 10
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(15
days) 3 weeks
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10
and greater
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(20
days) 4 weeks
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Vacations
of more than five consecutive work days can only be taken with the employer's
consent. Employees should give at least one week's notice (7 days) when
requesting vacation of more than two consecutive days. Should employment
terminate, the employee retire, receive a military leave of absence for active
duty in the military services, or be unable to take sufficient vacation days
because operational requirements of the Employer, the employee shall receive pay
in lieu of any vacation to which the employee is entitled.
Holidays
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16.
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Paid
holidays are New Year's Day, Good Friday, Memorial Day, Independence Day,
Labor Day, Veterans' Day, Thanksgiving Day and Christmas Day. A holiday
occurring on a Saturday or Sunday is observed the preceding Friday or
succeeding Monday.
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Other
Paid Time Off (Sick Leave, Doctor Appointments & Funeral Leave)
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17.
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Other
paid time off accrues at the rate of eight (8) hours per month (12 days
per year), up to a Maximum of 30 days that can be accumulated. Employees
are not compensated for unused “other
paid time off”
upon termination, retirement or military leave of absence. Other
paid time off can be used for sick leave, doctor appointments, caring for
a sick parent, son or daughter and for funeral leave. Employees who are
absent due to illness must notify their employer on the first day of such
absence, normally within the first hour of work. Failure to notify the
employer of the reason for the absence may result in the absence being
considered unexcused and without pay. Failure to notify for two
consecutive days may result in termination of
employment.
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Duty
to Devote Full Time
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18.
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The
Employee agrees to devote full-time efforts to his duties as an Employee
of the Employer.
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Avoiding
Conflict of Opportunities
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19.
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It
is understood and agreed that any business opportunity relating to or
similar to the Employer's current or anticipated business opportunities
(with the exception of personal investments in less than 5% of the equity
of a business, investments in established family businesses, real estate,
or investments in stocks and bonds, traded on public stock exchanges)
coming to the attention of the Employee during the Employee's employment
is an opportunity belonging to the Employer. Therefore, the Employee will
advise the Employer of the opportunity and cannot pursue the opportunity,
directly or indirectly, without the written consent of the
Employer.
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20.
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Without
the written consent of the Employer, the Employee further agrees not to:
a.
solely or jointly with others undertake or join any planning for or
organization of any business activity competitive with the current or
anticipated business activities of the Employer;
and
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b.
directly or indirectly, engage or participate in any other business activities
that the Employer, in his reasonable discretion, determines to be in conflict
with the best interests of the Employer.
Inability
to Contract for the Employer
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21.
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In
spite of anything contained in this Agreement to the contrary, the
Employee will not have the right to make any contracts or commitments for
or on the behalf of the Employer without first obtaining the express
written consent of the Employer.
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Confidential
Information and Assignment of Inventions
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22.
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The Employee acknowledges in any position the Employee may hold, in and as a result of the Employee's employment by the Employer, the Employee will, or may, be making use of, acquiring or adding to information about certain matters and things which are confidential to the Employer and which information is the exclusive property of the Employer, including, without limitation: |
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a.
confidential Information means all data and information relating to the
business and management of Employer, including proprietary and trade
secret technology and accounting records to which access is obtained by
the Employee, including Work Product, Computer Software, Other Proprietary
Data, Business Operation, Marketing and Development Operations, and
Customers. Confidential Information will also include any information that
has been disclosed by a third party to the Employer and governed by a
non-disclosure agreement entered into between the third party and the
Employer. Confidential Information will not include information
that:
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i.
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is generally known in the industry of the
Employer;
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ii.
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is now or subsequently becomes generally available
to the public through no wrongful act of the
Employee;
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iii.
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the
Employee rightfully had in his possession prior to the disclosure to
Employee by the Employer;
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iv.
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is
independently created by the Employee without direct orindirect
use of the Confidential Information;
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v.
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or,
the Employee rightfully obtains from a third party whohas
the right to transfer or disclose
it.
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Obligations
of Confidentiality
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23.
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The
Employee agrees that a material term of the Employee's contract with the
Employer is to keep all Confidential Information absolutely confidential
and protect its release to the public. The Employee agrees not to divulge,
reveal, report or use, for any purpose, any of the Confidential
Information which the Employee has obtained or which was disclosed to the
Employee by the Employer as a result of the Employee's employment by the
Employer. The Employee agrees that if there is any question as to such
disclosure, then the Employee will seek out senior management of the
Employer prior to making any disclosure of the Employer's information that
may be covered by this Agreement.
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24.
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The
obligations to ensure and protect the confidentiality of the Confidential
Information imposed on the Employee in this Agreement and any obligations
to provide notice under this Agreement will survive the expiration or
termination, as the case may be, of this Agreement and will continue for a
period of five (5) years from the date of such expiration or
termination.
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25.
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The Employee may disclose any of the Confidential
Information:
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a.
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to
a third party where Employer has consented in writing to suchdisclosure;
and
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b.
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to
the extent required by law or by the request or requirement of any
judicial, legislative, administrative or other governmental body; however,
the Employee will first have given prompt notice to the Employer of any
possible or prospective order (or proceeding pursuant to which any order
may result), and the Employer will have been afforded a reasonable
opportunity to prevent or limit any
disclosure.
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Ownership
and Title
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26.
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The
Employee acknowledges and agrees that all rights, title and interest in
any Confidential Information will remain the exclusive property of the
Employer, Accordingly, the Employee specifically agrees and acknowledges
that he will have no interest in the confidential information, including,
without limitation, no interest in know-how, copyright, trade-marks or
trade names, notwithstanding the fact that he may have created or
contributed to the creation of the
same.
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27.
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This
Agreement will not apply in respect of any intellectual property, process,
design, development, creation, research, invention, know-how, trade names,
trade-marks or copyrights for
which:
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a.
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no
equipment, supplies, facility or Confidential Information of the Employer
was used; and
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b.
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which was developed entirely on the Employee's own
time; and
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c.
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does not:
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i.
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relate to the business of the Employer
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ii.
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relate to the Employee's actual or demonstrably
anticipated process, research or development, or:
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iii.
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result
from any work performed by the Employee for the
Employer.
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28.
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The
Employee agrees to immediately disclose to the Employer all confidential
Information developed in whole or in part by the Employee during the term
of the Employee's employment with the Employer and to assign to the
Employer any right, title or interest the Employee may have in the
Confidential Information. The Employee agrees to execute any instruments
and to do all other things reasonably requested by the Employer (both
during and after the Employee's employment with the Employer) in order to
vest more fully in the Employer all ownership rights in those items
transferred by the employee to the
Employer.
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Return
of the Confidential Information
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29.
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The
Employee agrees that, upon request of the Employer or upon termination or
expiration, as the case may be, of employment, the Employee will turn over
to the Employer all documents or other computer media, or other material
in the possession or control of the Employee
that:
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a,
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may
contain or be derived from ideas, concepts, creations, or trade secrets
and other proprietary and Confidential Information as defined in this
Agreement; or
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b.
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connected
with or derived from the Employee's services to the
Employer.
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Non-solicitation
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30.
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Any
attempt on the part of the Employee to induce others to leave the
Employer's employ or to interfere with the Employer's relationship with
his other employees and contractors would be harmful and damaging to the
Employer. The Employee agrees that during the term of his employment with
the Employer and for a term of five (5) years following it, the Employee
will not in any way, directly or
indirectly:
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a.
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induce
or attempt to induce any employee or contractor of the Employer
toquit
employment or retainer with the Employer;
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b.
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otherwise
interfere with or disrupt the Employer's relationship with hisemployees
and contractors;
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c.
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discuss
employment opportunities or provide information about competitive
employment to any of the Employer's employees or
contractors;
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d.
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solicit,
entice, or hire away any employee or contractor of the Employer. This
obligation will be limited to those who were employees or contractors of
the Employer at the time the Employee was employed by the
Employer.
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Non-Competition
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31.
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Other
than through employment with a bona-fide independent party, or with the
express written consent of the Employer, which will not be unreasonably
withheld, the Employee will not, during the continuance of this Agreement
or within two (2) years after the termination or expiration, as the case
may be, of this Agreement, be directly or indirectly involved with a
business which is in direct competition with the particular business line
of the Employer.
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32.
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For
a period of two (2) years from the date of termination or expiration, as
the case may be, of the Employee's employment with the Employer, the
Employee will not divert or attempt to divert from the Employer any
business the Employer had enjoyed, solicited, or attempted to solicit,
from its customers, prior to termination or expiration, as the case maybe,
of the Employee's employment with the
employer.
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Termination
Due to Discontinuance of Business or Downsizing for Lack of Work
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33.
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In
spite of anything contained in this Agreement to the contrary, in the
event that the Employer will discontinue operating its business or be
forced to reduce the amount of personnel under hire because of Lack of
Work, then, at the Employer's sole option, this Agreement will terminate
as of the last day of the month in which the Employer ceases operations at
such location with the same force and effect as if such last day of the
month were originally set as the termination date of this
Agreement.
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Termination
for Disability
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34.
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In
spite of anything contained in this Agreement to the contrary, the
Employer has the sole option to terminate this Agreement in the event that
the Employee, during the term of this Agreement, becomes Permanently
Disabled, as defined in the Agreement. Such option will be exercised by
the Employer giving notice to the Employee by personally delivering to the
Employee or by registered mail addressed to the Employee of the Employer's
intention to terminate this Agreement on the last day of the month during
which such notice is mailed. On the giving of such notice, this Agreement
will cease on the last day of the month in which the notice is so
delivered or mailed, with the same force and effect as if such last day of
the month was the date originally set forth in this Agreement as the
termination date of the Agreement.
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35.
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For
the purposes of this Agreement, the Employee will be deemed to have become
permanently disabled, if, during any year of the term of the Agreement,
because of ill health, physical or mental disability or for other causes
beyond the Employer's control, he will have been continuously unable or
unwilling or will have failed to perform his duties under this Agreement
for sixty (60) consecutive days, or if, during any year of the term of
this Agreement, the Employee will have been unable or unwilling or will
have failed to perform his duties for a total period of 120 days,
irrespective of whether or not such days are consecutive. For the purposes
of this Agreement, the term "any year of the term of this Agreement" means
any 12 calendar month period commencing on l
st day of January, and
terminating on 3 1 st day
of December, during the term of this
Agreement.
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Termination
of Employment
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36.
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Where
the Employee has breached any of the terms of this Agreement or where
there is just cause for termination, the Employer may terminate the
Employee's employment without
notice.
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37.
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The
Employee and the Employer agree that reasonable and sufficient notice of
termination of employment by the Employer is the greater of one month and
any notice required under any relevant employment
legislation.
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38.
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If
the Employee wishes to terminate his employment with the Employer, the
Employee will provide the Employer with one month's notice. Alternatively,
if the Employee cooperates with the training and development or a
replacement, then sufficient notice is given if it is sufficient notice to
allow the Employer to find and train the
replacement.
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39.
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Should
the Employee terminate his employment pursuant to this Agreement, and
there is no constructive dismissal, the Employee agrees to be reasonably
available as a consultant for the purposes of maintaining any projects or
developments created while employed by the Employer. The Employee agrees
to negotiate the terms of the consulting work in good faith. In his
capacity as a consultant for the Employer pursuant to this paragraph, the
employee agrees to provide his present residential address and telephone
number as well as his business address and telephone
number.
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40.
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The
time specified in the notice by either the Employee or the Employer may
expire on any day of the month, and upon the date of termination, the
Employer will forthwith pay to the Employee any outstanding portion of the
wage, accrued vacation and banked time, if any, calculated to the date of
termination. Notwithstanding the date of termination, the Employee
acknowledges and agrees to diligently execute and complete his employment
responsibilities to the Employer at the reasonable direction of the
Employer. Failure of the Employee to responsibly execute his obligations
to the Employer during the notice period will be considered to be an
abandonment of his obligations and will be sufficient cause for immediate
termination of the Employee without compensation or
notice.
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Remedies
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41.
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The
Employee agrees and acknowledges that the Confidential Information is of a
proprietary and confidential nature, and that any disclosure of the
Confidential Information to a third party in breach of this Agreement
cannot be reasonably or adequately compensated for in money damages, would
cause irreparable injury to the Employer, would gravely affect the
effective and successful conduct of the Employer's business and goodwill,
and would be a material breach of this
Agreement
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42.
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In
the event of a breach or threatened breach by the Employee of any of the
provisions of this Agreement, the Employee agrees that the Employer is
entitled to, in addition to and not in limitation of any other rights and
remedies available to the Employer at law or in equity, to a permanent
injunction in order to prevent or restrain any such breach by the Employee
or by the Employee's partners, agents, representatives, servants,
employees, and/or any and all persons directly or indirectly acting for or
with the Employee.
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43.
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The
Employee agrees to cooperate with the Employer following termination by
providing documentation and other information to permit the Employer to
evaluate whether the Employee is honoring his post-employment obligations
set out in this Agreement.
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Serverability
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44.
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Employer
and Employee acknowledge that this Agreement is reasonable, valid and
enforceable. However, if a court of competent jurisdiction finds any of
the provisions of this agreement to be too broad to be enforceable, it is
the parties' intent that such provisions be reduced in scope by the court
only to the extent deemed necessary by the court to render the provision
reasonable and enforceable, bearing in mind that it is the Employee's
intention to give the Employer the broadest possible protection against
disclosure of the Confidential Information, against the Employee
soliciting the Employer's employees and contractors, and against the
Employee using such Confidential Information in competing with the
Employer.
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45.
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In
the event that any of the provisions of this Agreement will be held to be
invalid or unenforceable in whole or in part, those provisions to the
extent enforceable and all other provisions will nevertheless continue to
be valid and enforceable as though the invalid or unenforceable parts had
not been included in this Agreement and the remaining provisions had been
executed by both parties subsequent to the expunging of the invalid
provision.
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Notices
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46.
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If
Employee loses or makes unauthorized disclosure of any of the Confidential
Information, the Employee will immediately notify the Employer and take
all reasonable steps necessary to retrieve the lost or improperly
disclosed Confidential Information.
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Modification
of Agreement
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47.
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Any
amendment or modification of this Agreement or additional obligations
assumed by either party in connection with this Agreement will only be
binding if evidenced in writing signed by each party or an authorized
representative of each party.
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Governing
Law
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48.
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It
is the intention of the parties to this Agreement that this Agreement and
the performance under this Agreement, and all suits and special
proceedings under this Agreement, be construed in accordance with and
governed, to the exclusion of the law of any other forum, by the laws of
the State of North Dakota, without regard to the jurisdiction in which any
action or special proceedings may be
instituted.
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General
Provisions
Headings
are inserted for the convenience of the parties only and are not to be
considered when interpreting this Agreement. Words in the singular
mean and include the plural and vice versa. Words in the masculine
mean and include the feminine and vice versa.
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49.
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The
Employee is liable for all costs, expenses and expenditures including, and
without limitation, the complete legal costs incurred by the Employer in
enforcing this Agreement as a result of any default of this Agreement by
the Employee.
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50.
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No
failure or delay by the Employer in exercising any power, right or
privilege provided in this Agreement will operate as a waiver, nor will
any single or partial exercise of such rights, power or privileges
preclude any further exercise of them or the exercise of any other right,
power or privilege provided in this
Agreement.
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51.
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This
Agreement will inure to the benefit of and be binding upon the respective
heirs, executors, administrators, successors and assigns, as the case may
be, of the Employer and the
Employee.
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52.
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This
Agreement may be executed in counter parts, facsimile signatures are
binding and are considered to be original
signatures.
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53.
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If
there is a previous employment agreement between the parties to this
Agreement, the parties agree that this Agreement will replace that
previous employment agreement, and the Employee acknowledges that this
Agreement was entered into in consideration of a compensation increase
commencing the start of this Agreement. The Employee acknowledges that it
was agreed at that time that a new employment agreement would be entered
into in consideration of the compensation
increase.
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54.
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This
Agreement constitutes the entire agreement between the parties and there
are no further items or provisions, either oral or written. As of the
effective date of this Agreement, this Agreement supersedes all other
agreements between the parties. The parties to this Agreement stipulate
that neither of them has made any representations with respect to the
subject matter of this Agreement except such representations as are
specifically set forth in this Agreement. Each of the parties acknowledges
that it has relied on its own judgment in entering into this
Agreement.
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IN WITNESS WHEREOF Crownbutte
Wind Power, Inc. has duly affixed its signature by a duly authorized officer
under seal and
has duly
signed under hand and seal the 17 day of September, 2008 .
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Xxxxx X. Xxxxxxx,
Ph.D.
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(SEAL)
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 |
 |
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Xxxxxxx
X. Xxxxxx
President
and CEO
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