INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (the “Agreement”) is entered into by and between Great American Energy, Inc., a Delaware corporation (the “Company”), and Xxxxxx Xxxxxxxx Xxxxxxx, an individual (the “Contractor”), effective as of May 1, 2012, (the “Effective Date”). The Company and the Contractor are each individually a “party,” and collectively, the “parties.”
1
2
8. NON-COMPETE; NON-INTEFERENCE; NON-DISPARAGEMENT.
(a) Non Competition During The Term of Engagement. During the term of this Agreement, Contractor will not directly or indirectly, either as an employer, employee, consultant, Contractor, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in any business that is in competition in any manner whatsoever with the business of the Company and that creates a conflict of interest with the Company or results in a breach of the terms of this Agreement or the Confidential Information and Ownership Agreement for Independent Contractors.
(b) Non-Intereference, Non-Disparagement. Contractor agrees not to interfere with any of the Company’s contractual obligations. In addition, Contractor agrees to treat the Company respectfully and professionally and not disparage the Company (or the Company’s managers, officers or directors) in any manner likely to be harmful to the Company or its business, business reputation or personal reputation.
3
(i) The parties agree to use all reasonable efforts to resolve the dispute through direct discussion. To that end, either party may give the other party written notice of any dispute not resolved in the normal course of business. Upon such notice, the parties shall attempt in good faith to resolve the disputes promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement.
(ii) If the parties are unable to resolve the dispute by such means within thirty (30) days of the notice date, or such other time period as mutually agreed, then either party may commence binding arbitration pursuant to the Rules of Commercial Arbitration of the American Arbitration Association, as modified or supplemented under this Section 9(d). The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. Sec. 1, et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court with jurisdiction or application may be made to such a court for judicial recognition and acceptance of the award and any appropriate order including enforcement. The arbitration proceeding will be held in Las Vegas, Nevada.
(iii) The arbitration proceedings contemplated by this section shall be as confidential and private as permitted by law. To that end, the parties shall not disclose the existence, contents or results of any proceedings conducted in accordance with this section, and materials submitted in connection with such proceedings shall not be admissible in any other proceeding, provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitral award and shall not bar disclosures required by law. The parties agree that any decision or award resulting from proceedings in accordance with this section shall have no preclusive effect in any other matter involving third parties.
(iv) Notwithstanding any of the foregoing, either party may request injunctive and/or equitable relief either from the arbitrator or from a court in order to protect the rights or property of the party, pending the resolution of the dispute by arbitration as provided hereunder.
(e) Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Nevada. In addition, questions concerning arbitration under Section 9(d) shall be governed exclusively by the Federal Arbitration Act.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
4
CONTRACTOR:
_______________________________
Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx Xxxxxxx
Address:
_______________________________
_______________________________
Phone: _________________________
Fax: ___________________________
Email: xxxxxxxxxxxxxx@xxxxx.xxx
COMPANY:
By: ___________________________
Name: Xxxxx Xxxxx
Title: Chairman of the Board of Directors
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (___) ____ - _________
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
5
EXHIBIT A
Great American Energy, Inc. – Confidential Information and Ownership Agreement
As a condition of Xxxxxx Xxxxxxxx Xxxxxxx (“Independent Contractor”) being retained as an independent contractor (or Independent Contractor’s relationship being continued) by Great American Energy, Inc., a Delaware corporation, or any of its current or future subsidiaries, affiliates, successors or assigns (collectively, the “Company”), and in consideration of Independent Contractor’s relationship with the Company and its receipt of the compensation now and hereafter paid to Independent Contractor by the Company, Independent Contractor agrees to the following:
(a) “Confidential Information” means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, mineral reports, mining methods, drilling plans, reserve reports, surveys, geological data, services, suppliers, customer lists and customers (including, but not limited to, customers of the Company on whom Independent Contractor called or with whom Independent Contractor became acquainted during Independent Contractor’s engagement with the Company), prices and costs, markets, inventions, laboratory notebooks, field notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets or other business information disclosed to Independent Contractor by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment or created by Independent Contractor during the period of Independent Contractor’s engagement with the Company, whether or not during working hours. Independent Contractor understands that “Confidential Information” includes, but is not limited to, information pertaining to any aspects of the Company’s business which is either information not known by actual or potential competitors of the Company or is proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise. Independent Contractor further understands that Confidential Information does not include any of the foregoing items which has become publicly and widely known and made generally available through no wrongful act of Independent Contractor’s or of others who were under confidentiality obligations as to the item or items involved.
(b) “Develop” means to conceive, create, develop, assemble, reduce to practice, or, in the case of works of authorship, to fix in a tangible medium of expression.
(c) “Development” includes, but is not limited to, all inventions, discoveries, improvements, processes, developments, designs, know-how, data, computer programs, algorithms, formulae and works of authorship, whether or not patentable or registerable under patent, copyright or similar statutes, conceived or Developed in connection with the Company's business.
(d) “Intellectual Property” means and includes, with respect to any Development all relevant patents, patent applications, copyrights, trade secrets and other rights and protections arising under patent, copyright or similar statutes.
1
(a) All Developments that Independent Contractor conceives or Develops (either alone or jointly with others) at any time during the term of Independent Contractor’s engagement with the Company, including all Intellectual Property rights and protections in connection therewith, shall be the sole property of the Company and/or its nominees or assigns. Independent Contractor hereby assigns to the Company any and all right, title and interest Independent Contractor has, may have or may acquire in all Developments.
(b) Independent Contractor will communicate to the Company as promptly as practicable all Developments that Independent Contractor conceives or Develops (either alone or jointly with others) at any time during Independent Contractor’s engagement with the Company and for the period ending one (1) year after such engagement terminates for any reason, for the purpose of determining the extent of the Company’s rights in such Developments. For Developments that are conceived or Developed during the term (and within the scope of Independent Contractor’s service to the Company) of Independent Contractor’s engagement with the Company, the communication will be as complete as practicable. For Developments that are neither conceived nor Developed during the term and within the scope of Independent Contractor’s engagement with the Company, the communication may be limited to a general description sufficient to disclose clearly the relationship between those Developments and the scope of the work Independent Contractor did for or on behalf of the Company, and Independent Contractor will not be obligated to disclose confidential information belonging to Independent Contractor or any third party except to the extent required to make that clear disclosure.
(c) Independent Contractor will assist the Company and/or its nominees or assigns (without charge but at no expense to Independent Contractor) in every lawful way to obtain, maintain and enforce any and all Intellectual Property rights and protections relating to all Developments, including by executing all relevant documents. Independent Contractor understands that these obligations will continue beyond the termination of Independent Contractor’s engagement with the Company. Independent Contractor hereby irrevocably designates and appoints the Company and its duly authorized officers and Contractors as Independent Contractor’s Contractor and attorney-in-fact to execute and file any and all applications and other necessary documents and to do all other lawfully permitted acts to further the prosecution, issuance, or enforcement of patents, copyrights, trade secrets and similar protections related to such Developments with the same legal force and effect as if Independent Contractor had executed them itself.
(d) Paragraph 3(a) generally will not apply to any Intellectual Property that Independent Contractor conceived or Developed prior to Independent Contractor’s engagement with the Company and that underlies, pertains to, is embodied or becomes embodied in any Development (“Background Intellectual Property”), except that with respect to any Development that incorporates both elements that are Background Intellectual Property and elements that are conceived or Developed during the term of Independent Contractor’s engagement with the Company, Paragraph 3(a) will apply (to the extent otherwise applicable) to those elements that are conceived or Developed during such engagement. Independent Contractor hereby grants to the Company an irrevocable, perpetual, non-exclusive, worldwide, royalty-free license (with the right to sublicense) in the Background Intellectual Property to the extent reasonably necessary to permit the Company and its customers, clients and licensees to use, practice, reproduce, manufacture, modify, publicly perform, display and exhibit, market, distribute and otherwise exploit all Developments. Independent Contractor has listed below the only Background Intellectual Property that is or might be incorporated into Developments (failure to list indicates there are none): ______________________________________________________________________________________ (if additional space is required, use the back of this Agreement)
2
(a) This Agreement constitutes the entire agreement between Independent Contractor and the Company with respect to the subject matter hereof, superseding any prior agreement or representation, oral or written. Independent Contractor’s obligations under this Agreement may not be modified, released or terminated, in whole or in part, except in a writing signed by Independent Contractor and an officer of the Company or his or her designee. Any waiver by the Company of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach thereof.
(b) Each provision of this Agreement will be treated as a separate and independent clause, and the unenforceability of any one clause in no way will impair the enforceability of any of the other clauses herein. If one or more of the provisions of this Agreement is held to be excessively broad, such provision or provisions will be construed by the appropriate judicial body by limiting or reducing it or them, so as to be legally enforceable.
(c) Independent Contractor’s obligations under this Agreement will survive the termination of Independent Contractor’s engagement with the Company.
(d) This Agreement will inure to the benefit of and be binding upon the heirs, personal representatives, administrators, successors and assigns of the parties hereto. The Company may assign any of its rights under this Agreement.
(e) Independent Contractor acknowledges that Independent Contractor’s services are, and that the Confidential Information is, special, unique and unusual. Independent Contractor recognizes that if Independent Contractor breaches this Agreement, money damages would not reasonably or adequately compensate the Company for its loss. Accordingly, if Independent Contractor breaches this Agreement, Independent Contractor recognizes and consents to the Company’s right to seek injunctive relief to force Independent Contractor to abide by the terms of this Agreement. The Company also will have the right to recover damages or pursue any other remedy permitted by law.
(f) This Agreement will be governed by and interpreted in accordance with the laws of the State of Nevada, as applied to agreements made and wholly performed within Nevada.
[INTENTIONALLY LEFT BLANK]
3
This Agreement will be deemed effective as of the start of Independent Contractor’s engagement with the Company.
CAUTION: This Agreement creates important obligations of trust and affects Independent Contractor’s rights to inventions Independent Contractor may make during Independent Contractor’s engagement with the Company.
COMPANY:
|
INDEPENDENT CONTRACTOR:
|
By: _______________________________
Name: Xxxxx Xxxxx
Title: Chairnan of the Board of Directors
|
_________________________________
Xxxxxx Xxxxxxxx Xxxxxxx
|
4