Exhibit 10.12
ENGAGEMENT AGREEMENT
--------------------
This Engagement Agreement (the "Agreement") made and entered into effective
this 11th day of December, 2002 and between PocketSpec Technologies Inc., a
Colorado Corporation, hereafter referred to as ("PocketSpec"), and Xxxxx
Xxxxxxx, hereafter referred to as ("Wrigley").
RECITALS
WHEREAS, PocketSpec is a developer and retailer of color measuring
technologies. In addition, PocketSpec owns rights to other technologies now in
development and as discovered in the future. In addition, the PocketSpec has
developed three color measurement products, the ColorQATM, the ColorCheckTM and
the BronzCheckTM which it produces and sells, hereinafter referred to as (the
"Current Projects").
WHEREAS, PocketSpec has the need to expand the utility of its Current
Projects, by way of a USB linkage to other computer devices in order to
download, store and manipulate the data gathering capabilities of PocketSpec's
current products, the ColorQATM, the ColorCheckTM and the BronzCheckTM,
hereinafter referred to as (the "Current Products"); and to create software and
firmware to use, store and manipulate the data gathered as well as integrate the
data into other software systems, such as Microsoft Excel and Access, and other
point of sale industry specific software and hardware systems. The desired
development work is referred to as (the "Product Enhancements").
WHEREAS, Wrigley is a qualified electrical engineer with limited experience
in programming and desires to assist PocketSpec with the Product Enhancements
and PocketSpec agrees to contract Wrigley to complete the Product Enhancements.
WHEREAS, PocketSpec has agreed to contract Wrigley to complete the Product
Enhancements and also to pay for third party developers and assistants that
Wrigley believes must be hired or contracted to assist in the software
integration and development portions of the Product Enhancements. The
arrangements described in this Agreement as they pertain to the contracting the
Wrigley and third parties are hereinafter referred to as (the "Engagement") .
WHEREAS, Wrigley and PocketSpec have decided to set down in writing the mutual
understandings in this Agreement.
AGREEMENT
NOW, THEREFORE, for the mutual covenants and agreements set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. PocketSpec and Wrigley agree to the Engagement described above to complete
the Product Enhancements, and the initial detail of work to be commenced
is briefly described below:
1.1. Review current electrical design, software and firmware of the Current
Products and to design a new circuitry design needed to integrate a USB
port in accordance with needed Product Enhancements; and
1.2. Create software to will download data gathering of the Current Products
into a spreadsheet program such as Microsoft Excel and/or Microsoft Access
and create data bases and graphic programs or applications for the said
Microsoft Excel and/or Microsoft Access; and
1.3. Provide electronic files and xxxx of materials to be able to create new
circuit boards with its contractor and to its board assembler in order to
produce prototype circuit boards for prototype or test products; and
1.4. Complete testing of products and make improvements to electrical and
software designs as needed once assembled; and
1.5. Provide documentation and operating guide for use in the incorporation of
the working design for integration as a program application of Microsoft
Excel or Microsoft Access, into a CD format and instruction manual for
resale by PocketSpec; and
1.6. Once the Product Enhancements are completed as described in 1.1. through
1.5. or during its commencement, Wrigley shall review or PocketSpec other
software, firmware and hardware for third party "Point of Sale" systems
for integrating the Product Enhancements, hereinafter referred to as (the
"Third Party Systems"), and to estimate the time requirements and other
costs that will be needed to create software modules for sale by
PocketSpec, et al.; and
1.7. If desired by PocketSpec, Wrigley shall accept code and operating/firmware
from owners of Third Party Systems and begin commencement of integration
of Product Enhancements into the Third Party Systems, and
1.8. Provide documentation and operating guide for use in the incorporation of
the working system for integrating into modules of or incorporated designs
of the Third Party Systems into a CD format and instruction manual for
resale by PocketSpec; and
1.9. As needed as agreed from time to time, to make improvements, programming
changes and other market comment changes requested by PocketSpec, and/or
its licensees; and
1.10. Housing changes: PocketSpec desires to maintain line of Current Products
and to create Product Enhancements by fitting the USB interface and cable
attachments within the area reserved for the J Cell battery in its Current
Products. The Product Enhancements shall include cabling designed by
Wrigley and to be attached inside the existing battery door. When ready for
production, PocketSpec will alter its battery door to include a notch or
whole in the rear section in order to cinch down a collared cable.
PocketSpec will have its cable contractor create the cables according to
Wrigley's specifications. This shall create a relatively secure attachment
of the USB port so that the device is not inadvertently detached during use
and so that the device is not easily stolen, or damaged by falling to the
floor during use. Housing changes shall be paid directly by PocketSpec.
2. Devices and programming equipment: PocketSpec will provide needed copies
or boards, cables, Current Products and other accessories to allow Wrigley
to do his Engagement.
3. Term of Engagement:
3.1. This Agreement shall expire on December 31, 2003, and may be extended by
simply memorandum, amendment or other confirmation documentation.
3.2. Expiration or termination of this Agreement or the Engagement shall not
terminate compensation obligations on the part of PocketSpec.
4. Compensation to Wrigley:
4.1. Wrigley's out of pocket expenses shall be immediately reimbursed in cash.
Wrigley shall provide expense reports of materials and expenses to be paid
out of pocket. Where convenient, PocketSpec or its employees and agents
shall directly pay for these costs with the materials, supplies, etc.
shipped to Wrigley for use; and
4.2. Wrigley shall provide a monthly statement of work and total of hours
through the last day of each month.
PocketSpec shall pay Wrigley for his work at $75.00 per hour with free
trading S-8 stock in PocketSpec deposited directly into Xxxx and
Associates Inc., the brokerage company selected by PocketSpec. The
deposit of shares shall be computed monthly to pay for the hours of
work each month with a per share price equal to the lowest closing
price for the stock during the month the work was performed; and
4.3. PocketSpec has paid an initial $1,500.00 payment for up to 20 hours of
work for the month of December, 2002. This payment is based on $.25 per
share or 6,000 shares which shall be issued effective December 11, 2002
when this Agreement is signed by Wrigley, and if more than 20 hours of
work is billed for December, 2002, those additional hours shall be paid
with stock at the said price per share; and
4.4. Monthly report of hours or work shall include a brief detail of the work
done during the month.
5. Third Parties Needed and Time Constraints: PocketSpec and Wrigley agree
that an initial working model as detailed in 1.1. through 1.5. is planned
for completion during March, 2003 and the work to conclude work detailed
in 1.6. through 1.10. is planned for completion during June, 2003. While
Wrigley is probably capable of completing much of the work described in
this Agreement, he does have a full time job and given the time
constraints, any person that Wrigley desires to hire to conclude the work,
is approved Xxxxx Xxxxxx up to $20,000.00 in costs during the process of
the Engagement. More then the $20,000.00 shall have to be approved by
written memorandum. Wrigley is authorized to offer up to $75.00 per hour
for the work and payment in cash or stock using the same formula, although
Wrigley is encouraged to detail the task and time table and obtain a bid
for the work as a single sum of money or stock for the bid hours.
5.1. Requirements of persons working with Wrigley:
5.1.1. PocketSpec shall require a similar agreement to this Agreement, but
for limited duration and task.
5.1.2.PocketSpec may require the use of Xxxx and Associates Inc., for any
S-8 stock compensation and additional documentation, including a W-9
tax withholding form for cash compensation, whereby withholdings may
be required.
6. Options concerning alternate stock transfers: PocketSpec agrees that
Wrigley may periodically elect to accept restricted SEC Rule 144 stock, in
lieu of any monthly entitlement, with a 50% premium. More specifically, if
Wrigley billed 100 hours for example and the low closing price would be
$.30, he would be entitled to 25,000 shares of free trading S-8 stock. The
alternate for restricted stock would entitle him to 37,500 shares. Wrigley
may open a joint brokerage account and direct all of his stock
compensation to be deposited in a joint account instead of an individual
account.
7. Additional Provisions:
7.1. NONDISCLOSURE.
7.1.1. Recognition of PocketSpec's Rights; Nondisclosure. At during the
Engagement and thereafter, Wrigley will hold in strictest confidence
and will not disclose, use, lecture upon or publish any of the
PocketSpec's Proprietary Information (defined below), except as such
disclosure, use or publication may be required in connection with the
work of Wrigley for the PocketSpec, or unless an officer of the
PocketSpec expressly authorizes such in writing. Wrigley will obtain
PocketSpec's written approval before publishing or submitting for
publication any material (written, verbal, or otherwise) that relates
to Wrigley work at PocketSpec and/or incorporates any
Proprietary Information. Wrigley hereby assign to the PocketSpec any rights
Wrigley may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the PocketSpec and its
assigns.
7.1.2.Proprietary Information. The term "Proprietary Information" shall
mean any and all confidential and/or proprietary knowledge, data or
information of the PocketSpec. By way of illustration but not
limitation, "Proprietary Information" includes (a) trade secrets,
inventions, mask works, ideas, processes, formulas, source and object
codes, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs and techniques
(hereinafter collectively referred to as "Inventions"); (b)
information regarding plans for research, development, new products,
marketing, and selling, business plans, budgets and unpublished
financial statements, licenses, prices and costs, suppliers and
customers;and (c) information regarding the skills and compensation of
other employees of the PocketSpec. Notwithstanding the foregoing, it
is understood that, at all such times, Wrigley is free to use
information which is generally known in the trade or industry, which
is not gained as a result of a breach of this Agreement, and their own
skill, knowledge, know-how and experience to whatever extent and in
whichever way Wrigley wishes.
7.2. Non-Solicitation. Wrigley shall not during the term of Engagement, and for
a period of one year thereafter, directly or indirectly, use any
Proprietary Information to:
7.2.1. solicit, induce, entice, or attempt to entice, any employee of the
PocketSpec to terminate his or her engagement with the PocketSpec;
7.2.2.solicit, induce, entice, or attempt to entice, any customer of the
PocketSpec to terminate its business relationship with the PocketSpec,
including those that have been the PocketSpec's customers within the
one year preceding its termination;
7.2.3.directly or indirectly solicit or provide services to any customer of
the PocketSpec including those who have been the PocketSpec's
customers within the one year preceding its termination.
7.3. Third Party Information. Wrigley understands, in addition, that the
PocketSpec has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information")
subject to a duty on the PocketSpec's part to maintain the confidentiality
of such information and to use it only for certain limited purposes.
During the term of their Engagement and thereafter, Wrigley will hold
Third Party Information in the strictest confidence and will not disclose
to anyone (other than PocketSpec personnel who need to know such
information in connection with his work for the PocketSpec) or use, except
in connection with his work for the PocketSpec, Third Party Information
unless expressly authorized by an officer of the PocketSpec in writing.
7.4. Approval prospective
tain t
7.5. Color select' s. PocketSpecs' reasonably keep Wrigley ased as to
quantir ColorQA mode are rea for shipment[GRAPHIC OMITTED][GRAPHIC
OMITTED]
7.6. No Improper Use of Information of Prior Employers and Others. During the
Engagement of Wrigley by the PocketSpec, Wrigley will not improperly use
or disclose any confidential information or trade secrets, if any, of any
former employer or any other person to whom Wrigley have an obligation of
confidentiality, and Wrigley will not bring onto the premises of the
PocketSpec any unpublished documents or any property belonging to any
former employer or any other person to whom Wrigley has an obligation of
confidentiality unless consented to in writing by that former employer or
person. Wrigley will use in the performance of his duties only information
which is generally known and used by persons with training and experience
comparable to that of Wrigley, which is common knowledge in the industry
or otherwise legally in the public domain, or which is otherwise provided
or developed by the PocketSpec.
8. No CONFLICTING OBLIGATION. Wrigley represents that his performance of all
the terms of this Agreement does not and will not breach any agreement to
keep in confidence information acquired by Wrigley in confidence or in
trust prior to the Engagement by the PocketSpec.
9. RETURN OF POCKETSPEC DOCUMENTS. When the work by Wrigley is concluded or
terminated, Wrigley will deliver to the PocketSpec any and all drawings,
notes, memoranda, specifications, devices, formulas, and documents,
together with all copies thereof, and any other material containing or
disclosing any PocketSpec Inventions, Third Party Information or
Proprietary Information of the PocketSpec.
10. TERMINATION, CONTINUED COMPENSATION ENTITLEMENT. Either party may
terminate this Agreement, without cause by tendering notice as provided
herein. Termination shall not relieve either the PocketSpec or the Wrigley
from existing obligations to each other at the time of any such
termination.
11. NO PARTNERSHIP OR EMPLOYER/EMPLOYEE RELATIONSHIP Nothing in this
Agreement, either express or implied may be interpreted to create a
partnership or common interest between the PocketSpec and the Wrigley, but
rather the relationship between the PocketSpec and the Wrigley is that of
a contractor/Wrigley. In addition, nothing in this Agreement shall impute
any sort of employer/employee arrangement between the PocketSpec and the
Wrigley.
12. PUBLICATION. Wrigley understands that PocketSpec will be required to make
an SEC disclosure of this Agreement.
13. LEGAL AND EQUITABLE REMEDIES.
13.1. Wrigley agrees that the provisions of this Agreement are reasonable and
necessary protection for the immediate and substantial interests of the
PocketSpec, and that any violation of these provisions would cause
substantial and irreparable injury to the PocketSpec. Because services of
Wrigley are personal and unique and because Wrigley may have access to and
become acquainted with the Proprietary Information of the PocketSpec, the
PocketSpec shall have the right to enforce this Agreement and any of its
provisions by injunction, specific performance or other equitable relief,
without bond and without prejudice to any other rights and remedies that
the PocketSpec may have for a breach of this Agreement.
14. NOTICES. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address
as the party shall specify in writing. Such notice shall be deemed given
upon personal delivery to the appropriate address or if sent by Federal
Express, certified mail, or facsimile seven (7) days after the date of
mailing.
15. GENERAL PROVISIONS.
15.1.1. Governing Law; Consent to Personal Jurisdiction. This Agreement
will be governed by and construed according to the laws of the State
of Colorado. Wrigley hereby expressly consent to the personal
jurisdiction of and venue in the state and federal courts located in
the City and County of Denver, Colorado, for any lawsuit filed there
against Wrigley by the PocketSpec arising from or related to this
Agreement.
15.1.2. Severability. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
If, moreover, any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law.
15.1.3. Successors and Assigns. This Agreement will be binding upon the
successors, heirs, executors, administrators and other legal
representatives or the respective parties herein.
15.1.4. Survival. The provisions of this Agreement shall survive the
termination of Engagement and the assignment of this Agreement by the
PocketSpec to any successor in interest or other assignee.
cc, &) L' - ~
15.1.5. Engagement. Wrigley agrees and understands that nothing in this
Agreement shall confer any right with respect to continuation of
engagement by the PocketSpec, nor shall it interfere in any way with
Wrigley's right or the PocketSpec's right to terminate Engagement of
Wrigley at any time, with or without cause.
15.1.6. Waiver. No waiver by the PocketSpec of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by
the PocketSpec of any right under this Agreement shall be construed as
a waiver of any other right. The PocketSpec shall not be required to
give notice to enforce strict adherence to all terms of this
Agreement.
15.1.7. Entire Agreement. The obligations pursuant to this Agreement shall
apply to any time during which Wrigley was previously engaged, or is
in the future engaged, by PocketSpec as a Wrigley or independent
contractor if no other agreement governs nondisclosure and assignment
of inventions during such period. This Agreement is the final,
complete and exclusive agreement of the parties with respect to the
subject matter hereof and supersedes and merges all prior discussions
between the parties. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing and signed by the party to be charged. Any
subsequent change or changes in duties or compensation will not affect
the validity or scope of this Agreement.
15.1.8. Benefit of Counsel. Each party to this Agreement have had the
benefit of legal counsel and representation prior to executing this
Agreement.
THE PARTIES HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
Wrigley:
By: /s/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
Address: 0000 Xxxxxxx Xxx
Xx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone 000.000.0000 (home) 818.354.3365 (work)
Email cwri xxxxXxxxxxxxxx.xxx Tax ID
POCKETSPEC:
By: /s/ F. Xxxxxxx Xxxxxx
---------------------
F. Xxxxxxx Xxxxxx
Address: 0000 Xxxx 0xx Xxxxxx Xxxxxx, Xxxxxxxx 00000
Telephone 000.000.0000 Facsimile 303.393.1700
Email ikrupka@pocketspec. com
