Exhibit
10.4 Intellectual Property Assignment
Agreement
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
(v)
A violation by the Employee of the Company's policies and
procedures; or
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 Proprietary Information and the Employee
hereby assigns all rights he might ot
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