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EMPLOYEE EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "
Agreement ") dated April 12, 2007 and effective as of the 1
st day of January, 2007, is entered into by and between
Malibu Minerals, Inc., a Nevada corporation (the " Company
"), and Thomas Barr (" Employee ").
The Company desires to employ the Employee, and
the Employee wishes to accept such employment with the Company,
upon the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the foregoing
facts and mutual agreements set forth below, the parties, intending
to be legally bound, agree as follows:
1. Employment . The Company hereby agrees to employ
Employee, and Employee hereby accepts such employment and agrees to
perform Employee’s duties and responsibilities in accordance
with the terms and conditions hereinafter set forth.
1.1 Duties and
Responsibilities . During the Initial Employment Term and
the Employment Term, Employee is hereby employed as set forth in
Exhibit A. During the Initial Employment Term and the Employment
Term, Employee shall perform all duties and accept all
responsibilities incident to such positions and other appropriate
duties as may be assigned to Employee by the Company’s Chief
Executive Officer or such other person as determined by the Company
from time to time. The Company shall retain full direction and
control of the manner, means and methods by which Employee performs
the services for which he is employed hereunder and of the place or
places at which such services shall be rendered. During the Initial
Employment Term and the Employment Term, Employee shall report
directly to the Company’s Chief Executive Officer or such
other person as determined by the Company. In furtherance of the
foregoing, Employee shall, subject to the direction and instruction
of the Company during the Employment Term: (a) devote such amount
of hours per week as required by the Company’s Chief
Executive Officer or such other person as determined by the Company
from time to time, and will diligently and to the best of
employee’s ability perform all duties incident to
Employee’s employment hereunder; (b) use Employee’s
best efforts to promote the interests of the Company; and (c)
perform such other duties as the Company may from time to time
direct. Notwithstanding anything else set forth in this agreement,
the Company and Employee each acknowledge and agree that Employee
is hereby employed as set forth in Exhibit A solely in a non
executive capacity, without having such authority as an executive
officer might have.
1.2 Initial
Employment Term; Employment Term .
(i) The initial term
of Employee’s employment under this Agreement shall commence
on January 1, 2007 (the "Effective Date") and shall continue for 3
months (the "Initial Employment Term"). Subsequent to the Initial
Employment Term, the parties shall mutually agree to in writing to
either renew (a) the Initial Employment Term of the
Employee’s employment on a month to month basis on applicable
terms set forth in this Employment Agreement such that the Employee
shall continue to receive the Initial Monthly Salary for the
Initial Employment Term, or (ii) the Employee’s employment
under Section 1.2(ii) of this Agreement such that the Employee
shall receive the Base Salary for the Employment Term.
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(ii) Subject to
renewal as set forth in this Section 1.2(ii), the subsequent term
of Employee’s employment hereunder shall commence on the
Renewal Date and shall continue for 12 months or such other period
as mutually determined in writing by the Company and the Employee,
unless earlier terminated in accordance with Section 4 hereof. The
subsequent term of Employee’s employment shall be subject to
renewal at the Company’s sole option for successive one (1)
year periods if the Company delivers to the Employee a written
notice of its intent to renew the "Employment Term," which written
notice shall be given no later then thirty (30) days prior to the
expiration of the then-effective "Employment Term" as that term is
defined below, unless otherwise agreed to in the Company’s
sole discretion. Subject to renewal as set forth in this Section
1.2, the period commencing as of the Renewal Date and ending 12
months thereafter, or such later date to which the term of
Employee’s employment under the Agreement shall have been
extended by mutual written Agreement is referred to herein as the
"Employment Term." "Renewal Date" shall mean the date on which the
Company and the Employee shall mutually agree to in writing as the
commencement date of any subsequent Employment Term.
1.3 Extent of
Service . During the Initial Employment Term and the
Employment Term, Employee agrees to use Employee’s best
efforts to carry out the duties and responsibilities under Section
1.1 hereof.
1.4 Initial
Monthly Salary ; Base Salary . The Company shall pay
Employee during the Initial Employment Term a salary at the monthly
rate of $10,000 (U.S.) (the "Initial Monthly Salary"), which shall
be paid on the last business day of each month during the Initial
Employment Term. Subject to renewal as set forth in Section 1.2,
during the Employment Term, the Company and Employee shall mutually
agree to in writing of the amount of the base salary that the
Company shall pay to Employee, and Employee shall agree to accept,
which shall be paid monthly on the last business day of each month
during the Employment Term, or as otherwise agreed to by the
parties (the "Base Salary"). The Initial Monthly Salary and the
Base Salary shall be subject to all state, federal, and local
payroll tax withholding and any other withholdings required by
law.
1.5 Restricted
Stock . In addition to the Initial Monthly Salary and Base
Salary, effective as of December 18, 2006, Employee has received a
one-time payment of 68,673 shares of restricted common stock,
$0.001 par value per share (the "Common Stock"), of the Company
(the " Shares ").
1.6 Reimbursement
of Expenses; Vacation; Sick Days and Personal Days .
Employee shall be provided with reimbursement of expenses related
to Employee’s employment by the Company on a basis no less
favorable than that which may be authorized from time to time by
the Board, in its sole discretion, for senior level Employees as a
group. Subject to renewal as set forth in Section 1.2, during the
Employment Term Employee shall be entitled to vacation and holidays
in accordance with the Company’s normal personnel policies
for senior level Employees, but not less than three (3) weeks of
vacation per calendar year, provided Employee shall not utilize
more than seven (7) consecutive business days without the express
consent of the Chief Executive Officer. Unused vacation time will
be forfeited as of December 31 of each calendar year of the
Employment Term. Employee shall be entitled to no more than an
aggregate of ten (10) sick days and personal days per calendar
year.
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1.7 No Other
Compensation . Except as expressly provided in Sections 1.4
through 1.6, Employee shall not be entitled to any other
compensation or benefits.
2. Confidential
Information . Employee recognizes and acknowledges that by
reason of Employee’s employment by and service to the Company
before, during and, if applicable, after the Initial Employment
Term and/or Employment Term, Employee will have access to certain
confidential and proprietary information relating to the
Company’s business, which may include, but is not limited to,
trade secrets, trade "know-how," product development techniques and
plans, formulas, customer lists and addresses, financing services,
funding programs, cost and pricing information, marketing and sales
techniques, strategy and programs, computer programs and software
and financial information (collectively referred to as
"Confidential Information"). Employee acknowledges that such
Confidential Information is a valuable and unique asset of the
Company and Employee covenants that he will not, unless expressly
authorized in writing by the Company, at any time during the course
of Employee’s employment use any Confidential Information or
divulge or disclose any Confidential Information to any person,
firm or corporation except in connection with the performance of
Employee’s duties for the Company and in a manner consistent
with the Company’s policies regarding Confidential
Information. Employee also covenants that at any time after the
termination of such employment, directly or indirectly, he will not
use any Confidential Information or divulge or disclose any
Confidential Information to any person, firm or corporation, unless
such information is in the public domain through no fault of
Employee or except when required to do so by a court of law, by any
governmental agency having supervisory authority over the business
of the Company or by any administrative or legislative body
(including a committee thereof) with apparent jurisdiction to order
Employee to divulge, disclose or make accessible such information.
All written Confidential Information (including, without
limitation, in any computer or other electronic format) which comes
into Employee’s possession during the course of
Employee’s employment shall remain the property of the
Company. Except as required in the performance of Employee’s
duties for the Company, or unless expressly authorized in writing
by the Company, Employee shall not remove any written Confidential
Information from the Company’s premises, except in connection
with the performance of Employee’s duties for the Company and
in a manner consistent with the Company’s policies regarding
Confidential Information. Upon termination of Employee’s
employment, the Employee agrees to return immediately to the
Company all written Confidential Information (including, without
limitation, in any computer or other electronic format) in
Employee’s possession. As a condition of Employee’s
continued employment with the Company and in order to protect the
Company’s interest in such proprietary information, the
Company may require Employee’s execution of a Confidentiality
Agreement and Inventions Agreement.
3. Non-Competition; Non-Solicitation .
3.1 Non-Compete . The Employee hereby covenants and agrees
that during the Initial Employment Term and the Employment
Term
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