EMPLOYMENT AGREEMENT
Exhibit
10.8 Form of Employment Agreement and Assignment of
Intellectual Property
THIS
EMPLOYMENT AGREEMENT (hereinafter referred to as the "Agreement") is made and
entered into as of the day of, 20
(“Inception Date”), by and between OXYSURE SYSTEMS, INC., a
corporation duly organized and existing pursuant to the laws of the state of
Delaware, (hereinafter referred to as "OSI" or the “Company”), and (hereinafter referred to
as the "Employee").
W I T N E S S E T
H:
WHEREAS, the Company desires to have
the benefit of the Employee's efforts and services;
WHEREAS, the Company recognizes that
circumstances may arise which may cause uncertainty of continued employment of
the Employee without regard to the Employee's competence or past
contributions;
WHEREAS, such uncertainties may result
in the loss of valuable services of the Employee to the detriment of the Company
and its shareholders;
WHEREAS, the Employee will be in a
better position to consider the best interests of the Company if the Employee is
afforded reasonable security, as provided in this Agreement, against altered
conditions of employment which may result from situations now unknown,
and
NOW, THEREFORE, in consideration of the
foregoing and of the mutual covenants and agreements hereinafter set forth, the
parties hereto mutually covenant and agree as follows:
1. DEFINITIONS. Whenever
used in this Agreement, the following terms shall have the meanings set forth
below:
(a) "Accrued
Benefits" shall mean the amount payable not later than fifteen (15) days
following an applicable Termination Date and which shall be equal to the sum of
the following amounts:
(i) All
salary earned or accrued through the Termination Date;
(ii) Reimbursement
for any and all moneys advanced in connection with the Employee's employment for
pre-approved, reasonable and necessary expenses incurred by the Employee through
the Termination Date;
(iii) Any
and all other cash benefits previously earned through the Termination Date and
deferred at the election of the Employee or pursuant to any deferred
compensation plans then in effect;
(iv) The
full amount of any stated bonus payable to the Employee with respect to the year
in which termination occurs provided that the events necessary to have earned
said bonus have been achieved; and
(v) All
other payments and benefits to which the Employee may be entitled under the
terms of any benefit plan of the Company.
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(b) "Act"
shall mean the Securities Exchange Act of 1934;
(c) "Affiliate"
shall have the same meaning as given to that term in Rule 12b-2 of Regulation
12B promulgated under the Act;
(d) "Base
Period Income" shall be an amount equal to the Employee's annualized
compensation calculated pursuant to section 6 herein for the initial term of
this agreement;
(e) "Board"
shall mean the Board of Directors of the Company;
(f) "Cause"
shall mean any of the following:
(i) The
engaging by the Employee in fraudulent conduct, as evidenced by a determination
in a binding and final judgment, order or decree of a court or administrative
agency of competent jurisdiction, in effect after exhaustion or lapse of all
rights of appeal, in an action, suit or proceeding, whether civil, criminal,
administrative or investigative, which the Board determines, in its sole
discretion, has a significant adverse impact on the Company in the conduct of
the Company's business;
(ii) Conviction
of a felony, as evidenced by a binding and final judgment, order or decree of a
court of competent jurisdiction, in effect after exhaustion or lapse of all
rights of appeal, which the Board determines, in its sole discretion, has a
significant adverse impact on the Company in the conduct of the Company's
business;
(iii) Neglect
or refusal by the Employee to perform the Employee's duties or responsibilities;
or
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(i)
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A
violation by the Employee of the Company's policies and procedures;
or
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Notwithstanding the foregoing, Cause
shall not exist under Sections 1(f) (iii) and (iv) herein unless the Company
furnishes written notice to the Employee of the specific offending conduct and
the Employee fails to correct such offending conduct within the thirty
(30) day period commencing on the receipt of such notice.
(g) "Code"
shall mean the Internal Revenue Code of 1986, as amended from time to
time;
(h) “Consolidated
Group” means and
includes the Company, all of OSI’s current or future subsidiaries and any other
corporations or divisions thereof, which are hereafter acquired by or
consolidated with the OSI and which collectively carry on the business of OSI,
the Company or any part thereof.;
(i) "Notice
of Termination" shall mean the notice described in Section 10
herein;
(j) "Person"
shall mean any individual, partnership, joint venture, association, trust,
corporation or other entity, other than an employee benefit plan of the Company
or an entity organized, appointed or established pursuant to the terms of any
such benefit plan;
(k) "Termination
Date" shall mean, except as otherwise provided in Section 10
herein,
(i) The
Employee's date of death;
(ii) Thirty
(30) days after the delivery of the Notice of Termination if the Employee's
employment is terminated by the Employee voluntarily; and
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(iii) Seven
(7) days after the delivery of the Notice of Termination if the Employee's
employment is terminated by the Company for any reason other than cause; except
that if such termination occurs during the first 2 months of service, then it
shall be zero (0) days.
2 EMPLOYMENT.
The
Company hereby agrees to employ the Employee and the Employee hereby agrees to
serve the Company, on the terms and conditions set forth herein.
3. TERM.
The
employment of the Employee by the Company pursuant to the provisions of this
Agreement shall commence on the date of this Agreement (the “Effective Date”)
and end on the One Thousand Eight Hundred Twenty Fifth day thereafter
(1,825th) day thereafter, unless
sooner terminated as hereinafter provided.
4. POSITIONS
AND DUTIES.
The
Employee shall hold the position
of
of the Company and shall perform the duties and responsibilities as outlined in
Exhibit B. The Employee
shall also perform such duties as the Company’s management or Board shall direct
and shall serve in such additional capacities as set forth in Section 7
herein. In connection with the foregoing positions, the Employee
shall have such duties, responsibilities and authority as may from time to time
be assigned to the Employee by management or the Board. The Employee
shall devote substantially all of the Employee's working time and efforts to the
business and affairs of the Company. The Employee shall not be engaged in the
provision of any consulting or services to any third parties.
5. PLACE
OF PERFORMANCE.
In
connection with the Employee's employment by the Company, the Employee shall be
based at the principal Employee offices of the Company in North Dallas, Texas,
except for where travel is required, or where otherwise required by the
operations of the Company.
6. COMPENSATION
AND RELATED MATTERS.
(a) Commencing
on the Effective Date
hereof, and during the Period of Employment, the Company shall compensate the
Employee in accordance with Exhibit A hereto. The Company
will also issue to the Employee options as to the Common Stock of the Company as
outlined in Exhibit A hereto. In addition, the Employee shall be entitled to
participate in any annual bonus programs established by the Company for senior
Employees.
(b) During
the term of the Employee's employment hereunder, the Employee shall be entitled
to receive prompt reimbursement for all pre-approved, reasonable expenses
incurred by the Employee in performing services hereunder, including all
business travel and living expenses while away from home on business or at the
request of and in the service of the Company, provided that such expenses are
incurred and accounted for in accordance with the policies and procedures
presently established by the Company and OSI or as may be changed from time to
time.
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(c) The
Employee shall also be entitled to all other benefits provided by the Company to
its general employees.
7. OFFICES.
The
Employee agrees to serve without additional compensation, if elected or
appointed thereto, as a member of the Board of Directors of the Company, or any
subsidiary; provided, however, that the Employee is indemnified for serving in
any and all such capacities on a basis no less favorable than is currently
provided in the Company's bylaws, or otherwise.
8. TERMINATION
FOR CAUSE.
If the
Employee's employment with the Company is terminated by the Company for Cause,
subject to the procedures set forth in Section 10 herein, the Employee shall be
entitled to receive the Employee's Accrued Benefits as of the Termination
Date. The Employee shall not be entitled to the receipt of any
Termination Payment.
9. VOLUNTARY
TERMINATION BY EMPLOYEE.
From and
after August 1, 2008, provided that the Employee furnishes two (2) months prior
written notice to the Company, the Employee shall have the right to voluntarily
terminate this Agreement at any time. The Employee shall receive the Employee's
Accrued Benefits as of the Termination Date and shall not be entitled to any
Termination Payment.
10. TERMINATION
NOTICE AND PROCEDURE.
Any termination by the Company or the
Employee of the Employee's employment during the Employment Period shall be
communicated by written Notice of Termination to the Employee, if such Notice of
Termination is delivered by the Company, and to the Company, of such Notice of
Termination is delivered by the Employee, all in accordance with the following
procedures:
(a) The
Notice of Termination shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances alleged to provide a basis for termination.
11. NONDISCLOSURE
OF PROPRIETARY INFORMATION.
(a) For
the purposes of this Paragraph 11, including all subparagraphs, “the Company”
shall mean the Company or OSI. Recognizing that the Company is
presently engaged, and may hereafter continue to be engaged, in the research and
development of processes, the obtainment and sale of products or performance of
services, which involve experimental and inventive work and that the success of
its business depends upon the protection of the processes, products and services
by patent, copyright or by secrecy and that the Employee has had, or during the
course of his engagement may have, access to Proprietary Information, as
hereinafter defined, of the Company or other information and data of a secret or
proprietary nature of the Company which the Company wishes to keep confidential
and the Employee has furnished, or during the course of his engagement may
furnish, such information to the Company, the Employee agrees that (a)
"Proprietary Information" shall mean any and all methods, inventions,
improvements or discoveries,
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whether
or not patentable or copyrightable, and any other information of a similar
nature related to the business of the Company disclosed to the Employee or
otherwise made known to him as a consequence of or through his
engagement by the Company (including information originated by the Employee) in
any technological area previously developed by the Company or developed, engaged
in, or researched, by the Company during the term of the Employee's engagement,
including, but not limited to, trade secrets, processes, products, formulae,
apparatus, techniques, know-how, marketing plans, data, improvements,
strategies, forecasts, customer lists, and technical requirements of customers,
unless such information is in the public domain to such an extent as to be
readily available to competitors.
(b) The
Employee acknowledges that the Company has exclusive property rights to all
Proprietary Information and the Employee hereby assigns all rights he might
otherwise possess in any Proprietary Information to the Company. Except as
required in the performance of his duties to the Company or otherwise as
required by law, the Employee will not at any time during or after the term of
his engagement, which term shall include any time in which the Employee may be
retained by the Company as a consultant, directly or indirectly use,
communicate, disclose or disseminate any Proprietary Information or any other
information of a secret, proprietary, confidential or generally undisclosed
nature relating to the Company, its products, customers, processes and services,
including information relating to testing, research, development, manufacturing,
marketing and selling.
(c) All
documents, records, notebooks, notes, memoranda and similar repositories of, or
containing, Proprietary Information or any other information of a secret,
proprietary, confidential or generally undisclosed nature relating to the
Company or its operations and activities made or compiled by the Employee at any
time or made available to him prior to or during the term of his engagement by
the Company, including any and all copies thereof, shall be the property of the
Company, shall be held by him in trust solely for the benefit of the Company,
and shall be delivered to the Company by him on the termination of his
engagement or at any other time on the request of the
Company.
(d) The
Employee will not assert any rights under any inventions, copyrights,
discoveries, concepts or ideas, or improvements thereof, or know-how related
thereto, as having been made or acquired by him prior to his being engaged by
the Company or during the term of his engagement if based on or otherwise
related to Proprietary Information.
12. ASSIGNMENT
OF INVENTIONS.
(a) For
purposes of this Paragraph 12, the term "Inventions" shall mean discoveries,
concepts, and ideas, whether patentable or copyrightable or not, including but
not limited to improvements, know-how, data, processes, methods, formulae, and
techniques, as well as improvements thereof or know-how related thereto,
concerning any past, present or prospective activities of the Company which the
Employee makes, discovers or conceives (whether or not during the hours of his
engagement or with the use of the Company's facilities, materials or personnel),
either solely or jointly with others during his engagement by the Company or any
affiliate and, if based on or related to Proprietary Information, at any time
after termination of such engagement. All inventions shall be the
sole property of the Company, and Employee agrees to perform the provisions of
this paragraph 12 with respect thereto without the payment by the Company of any
royalty or any consideration therefor other than the regular compensation paid
to the Employee in the capacity of an employee or consultants;
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(b) The
Employee shall maintain written notebooks in which he shall set forth, on a
current basis, information as to all Inventions, describing in detail the
procedures employed and the results achieved as well as information as to any
studies or research projects undertaken on the Company's behalf. The
written notebooks shall at all times be the property of the Company and shall be
surrendered to the Company upon termination of his engagement or, upon request
of the Company, at any time prior thereto.
(c) The
Employee shall apply, at the Company's request and expense, for United States
and foreign letters patent or copyrights either in the Employee's name or
otherwise as the Company shall desire.
(d) The
Employee hereby assigns to the Company all of his rights to such Inventions, and
to applications for United States and/or foreign letters patent or copyrights
and to United States and/or foreign letters patent or copyrights granted upon
such Inventions.
(e) The
Employee shall acknowledge and deliver promptly to the Company, without charge
to the Company, but at its expense, such written instruments (including
applications and assignments) and do such other acts, such as giving testimony
in support of the Employee's inventorship, as may be necessary in the opinion of
the Company to obtain, maintain, extend, reissue and enforce United States
and/or foreign letters patent and copyrights relating to the Inventions and to
vest the entire right and title thereto in the Company or its
nominee. The Employee acknowledges and agrees that any copyright
developed or conceived of by the Employee during the term of Employee's
employment which is related to the business of the Company shall be a "work for
hire" under the copyright law of the United States and other applicable
jurisdictions.
(f) The
Employee represents that his performance of all the terms of this Agreement and
as an employee of or consultant to the Company does not and will not breach any
trust prior to his employment by the Company. The Employee agrees not
to enter into any agreement either written or oral in conflict herewith and
represents and agrees that he has not brought and will not bring with him to the
Company or use in the performance of his responsibilities at the Company any
materials or documents of a former employer which are not generally
available to the public, unless he has obtained written authorization from the
former employer for their possession and use, a copy of which has been provided
to the Company.
(g) No
provisions of this Paragraph shall be deemed to limit the restrictions
applicable to the Employee under Paragraph 11.
13. SHOP
RIGHTS.
The
Company shall also have the royalty-free right to use in its business, and to
make, use and sell products, processes and/or services derived from any
inventions, discoveries, concepts and ideas, whether or not patentable,
including but not limited to processes, methods, formulas and techniques, as
well as improvements thereof or know how related thereto, which are not within
the scope of Inventions as defined in Paragraph 12 but which are conceived or
made by the Employee during the period he is engaged by the Company or with the
use or assistance of the Company's facilities, materials or
personnel.
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14. NON-COMPETE.
The
Employee hereby agrees that during the term of this Agreement and for twelve
months (12) months following a termination for any reason, unless otherwise
specified in this agreement, shall not:
(a) Within
any jurisdiction or marketing area in the United States in which the Company or
any subsidiary thereof is doing business, own, manage, operate or control any
business of the type and character engaged in and competitive with the Company
or any subsidiary thereof. For purposes of this paragraph, ownership
of securities of not in excess of five percent (5%) of any class of securities
of a public company shall not be considered to be competition with OSI, or any
subsidiary thereof; or
(b) Within
any jurisdiction or marketing area in the United States in which the
Consolidated Group or any member thereof is doing business, act as, or become
employed as, an officer, director, employee, consultant or agent of any business
of the type and character engaged in and competitive with the Consolidated Group
or any of its members; or
(c) Solicit
any business that is the same as that of the Consolidated Group for, or sell any
products that are in competition with the Consolidated Group’s products to, any
company in the United States, which is, as of the date hereof, a customer or
client of the Consolidated Group or any of its members, or was such a customer
or client thereof within two years prior to the date of this Agreement;
or
(d) Solicit
the employment of, or hire any full time employee employed by the Company or its
subsidiaries as of the date of termination of this Agreement.
Restrictions
Reasonable. Employee represents and agrees that the provisions hereof are
reasonable in order to protect the business and proprietary interests of the
Consolidated Group both as to the duration of time and any geographic limitation
therein provided, based on the present business, plans and prospects of the
Consolidated Group and the confidential and proprietary information to which
Employee has had and will have access, and that compliance with the provisions
hereof will
not be unduly burdensome on him. Employee represents that
prior to executing and delivering this agreement, he has reviewed the provisions
of this agreement with his attorney.
15. REMEDIES
AND INJUNCTIVE RELIEF
The
Employee hereby acknowledges and agrees that a breach or threatened breach by
him or the non-performance of certain of the covenants or promises contained
herein by him may cause serious and irreparable harm to the Consolidated Group
and that any remedy at law, including any award of money damages, may be
inadequate. Accordingly, Employee agrees and accepts that a
threatened breach, a breach or a violation of the provisions of this agreement
by him shall entitle the Company, as a matter of right, to an injunction issued
by any court of competent jurisdiction, restraining any further or continued
breach or violation of the provisions of this agreement. Such right
to an injunction shall be cumulative and in addition to, and not in lieu of, any
other remedies to which the Company may be entitled. The Employee specifically
acknowledges that the requirement of the Consolidated Group or any member
thereof to post a bond for the issuance of a temporary restraining order or
temporary injunction should be waived.
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16. ATTORNEY’S
FEES.
In the
event that either party hereunder institutes any legal proceedings in connection
with its rights or obligations under this Agreement, the prevailing party in
such proceeding shall be entitled to recover from the other party, all costs
incurred in connection with such proceeding, including reasonable attorneys'
fees, together with interest thereon from the date of demand at the rate of
twelve percent (12%) per annum.
17. SUCCESSORS.
This
Agreement and all rights of the Employee shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives, estates,
executors, administrators, heirs and beneficiaries. In the event of the
Employee's death, all amounts payable to the Employee under this Agreement shall
be paid to the Employee's surviving spouse, or the Employee's estate
if the Employee dies without a surviving spouse. This
Agreement shall inure to the benefit of, be binding upon and be enforceable by,
any successor, surviving or resulting corporation or other entity to which all
or substantially all of the business and assets of the Company shall be
transferred whether by merger, consolidation, transfer or sale.
18. ENFORCEMENT.
The
provisions of this Agreement shall be regarded as divisible, and if any of said
provisions or any part hereof are declared invalid or unenforceable by a court
of competent jurisdiction, the validity and enforceability of the remainder of
such provisions or parts hereof and the applicability thereof shall not be
affected thereby.
19. AMENDMENT
OR TERMINATION.
This
Agreement may be amended, superseded, canceled, renewed or extended, and the
terms hereof may be waived, only by written instrument signed by the parties or,
in the case of a waiver, by the party waiving compliance. No delay on
the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof. Nor shall any waiver on the part
of any party of any such right, power or privilege, nor any single or partial
exercise of any such right, power or privilege, preclude any further exercise
thereof or the exercise of any other such right, power or
privilege.
20. SEVERABILITY.
The
provisions of paragraphs 11, 12, 13 and 14 shall survive termination of this
Agreement.
21. ENTIRE
AGREEMENT.
This
Agreement sets forth the entire agreement between the Employee and the Company
with respect to the subject matter hereof, and supersedes all prior oral or
written agreements, negotiations, commitments and understandings with respect
thereto. Each party to this Agreement acknowledges that no
representations, inducements, or agreements, oral or otherwise, have been made
by any party, or anyone acting on behalf of any party, which are not embodied
herein, and no other agreement, statement or promise not contained in this
Agreement shall be valid or binding. The parties hereto have had an
opportunity to consult with their respective attorneys concerning the meaning
and the import of this Agreement and each has read this Agreement, as signified
by his/their signatures below, and are executing the same for the purposes and
consideration herein expressed.
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22. GOVERNING
LAW.
This
Agreement and the Employee's and Company's respective rights and obligations
hereunder shall be governed by and construed in accordance with the laws of the
State of Texas applicable to agreements made and to be performed entirely within
such State without giving effect to the provisions, principles, or policies
thereof relating to choice or conflict laws, except to the extent that Federal
law may apply.
23. NOTICE.
Any
notice or other communication required or permitted hereunder shall be deemed
given if in writing and delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid. Any such notice shall be deemed given when so delivered
personally or sent by overnight air courier or facsimile transmission or, if
mailed, two days after the date of deposit in the United States mails, as
follows:
if to
OSI:
Xx.
Xxxxxx Xxxx
OxySure
Systems, Inc.
00000
Xxxx X. Xxxxxxx Xxxx
Xxxxx
000
Xxxxxx,
XX 00000
if to the
Employee:
_______________________________
_______________________________
_______________________________
Any party
may be given notice in accordance with this Section to the other parties
designate another address or person for receipt of notices by such party
hereunder.
23. BINDING
EFFECT: NO ASSIGNMENT.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and legal representatives. This Agreement
and any rights hereunder are not assignable except by operation of law or by OSI
to any of its subsidiaries or affiliates. Any other purported
assignment shall be null and void.
24. VARIATIONS
IN PRONOUNS.
Wherever
the context shall so require, all words herein in the male gender shall be
deemed to include the female or neuter gender and vice versa, all singular words
shall include the plural, and all plural words shall include the
singular. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may
require.
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25. REPRESENTATION
BY COUNSEL
Each
party acknowledges that it has had the opportunity to be represented by separate
independent counsel in the negotiation of this Agreement, that any such
respective attorneys were of its own choosing, that each authorized
representative has read this Agreement and that he understands its meaning and
legal consequences to each party. The Parties warrant and represent
that they have consulted with their attorney of choice concerning the execution,
the meaning and the import of this Agreement, and each has read this Agreement
and fully understands the terms hereof as signified by their signatures below,
and are executing the same of their own free will for the purposes and
consideration herein expressed. The Parties warrant and represent
that they have had sufficient time to consider whether to enter into this
Agreement and that they are relying solely on their own judgment and the advice
of their own counsel in deciding to execute this Agreement. The
Parties warrant and represent that they have read this Agreement in its entirety
and have consulted with their attorney concerning the execution of this
Agreement. If any or all Parties have chosen not to seek alternative counsel,
said party or parties hereby acknowledge that he or they refrained from seeking
alternative counsel entirely of his or their own volition and with full
knowledge of the consequences of such a decision.
26. PRESUMPTION
AGAINST SCRIVENER
Each
party waives the presumption that this Agreement is presumed to be in favor of
the party which did not prepare it, in case of a dispute as to
interpretation.
27. CAPACITY
Each
party represents and warrants that he has the authority to enter into this
Agreement either on his own behalf or in an official capacity on behalf of a
corporate party.
28. OTHER
INSTRUMENTS
The
Parties hereto covenant and agree that they will execute such other and further
instruments and documents as are or may become necessary or convenient to
effectuate and carry out the business obligations and duties created by this
Agreement.
29. NO
WAIVER.
No waiver
by either party at any time of any breach by the other party of, or compliance
with, any condition or provision of this Agreement to be performed by the other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same time or any prior or subsequent time.
30. HEADINGS.
The
headings used in this Agreement are for administrative purposes only and do not
constitute substantive matter to be considered in construing the terms and shall
not affect the interpretation of this Agreement.
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31. COUNTERPARTS.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof
each signed by less than all, but together signed by all of the parties
hereto.
IN
WITNESS WHEREOF, the Company, has caused this Agreement to be executed by its
duly authorized officer, and the Employee has executed this Agreement, on the
date and year first above written.
OXYSURE
SYSTEMS, INC.
__________________________________
By: Xx.
Xxxxxx Xxxx
Its: President
& CEO
EMPLOYEE
_________________________________
Exhibit
A
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