Exhibit
10.8 Form of Employment Agreement and Assignment
of Intellectual Property
EMPLOYMENT AGREEMENT
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.
(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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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
(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.
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.
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 (1,825 th )
day thereafter, unless sooner terminated as
hereinafter provided.
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.
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.
(c) The
Employee shall also be entitled to all other benefits provided by
the Company to its general employees.
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,
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 Proprie
