NON-EMPLOYEE INTERIM CHIEF OPERATING OFFICER
ENGAGEMENT AGREEMENT
This Non-employee
Interim Chief Operating Officer Agreement (“
Agreement ”) is entered into as of the 5
th day of February,
2009 (the “ Effective Date ”) by and between
Rubicon Financial Incorporated , a Delaware
corporation (the “ Company ”), and
Bootstrap Real Estate Investments, LLC , a California
Limited Liability Company (“ Management Company
”).
A. Company
has determined it to be in the Company’s best interest to
retain Todd Vande Hei (“ Executive ”), Managing
Member of Management Company, to provide Non-employee Interim Chief
Operating Officer (“ Non-employee Interim COO ”)
services to Company as set forth on Exhibit A attached hereto and
as specified from time to time by the Board of Directors of the
Company;
B. Company
and Management Company agree Company shall retain Executive as a
full-time employee of Company following completion of a minimum
$1,000,000 financing of Company and subject to mutually agreed
employment agreement between Company and Executive; approval by
Management Company; and, approval by Company Board of
Directors.
C. As
a result of Management Company’s and Executive’s
engagement, the Company and/or its affiliates has, or have
disclosed to Management Company and Executive, and Management
Company and Executive has obtained, certain Confidential
Information (as defined herein).
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
conditions contained herein, the parties hereto agree as
follows:
1. Engagement
. The Company hereby engages Executive, Managing Member of
Management Company, to perform those Non-employee Interim COO
duties set forth in the Exhibit A attached hereto and such other
duties as may be requested from time to time by the Board of
Directors of the Company. Executive hereby accepts such engagement
upon the terms and subject to conditions set forth in this
Agreement. This agreement shall be ratified by the Board of
Directors of Company within two (2) business days of the execution
hereof.
2. Non-employee
Interim Chief Operating Officer . Management Company agrees to
designate Executive, Managing Member of Management Company, as the
Non-employee Interim COO to Company to perform those duties of
Non-employee Interim Chief Operating Officer for Company as defined
herein. Executive shall provide services as Non-employee Interim
COO of Company.
3.
Directorship . Executive currently serves as a
member of the Company’s Board of Directors and shall remain a
member serving at the pleasure of the Company’s
stockholders.
A.
Engagement Fee . For the services rendered by Executive
under this Agreement, the Company shall pay to Management Company a
one-time fee of $30,000, payable in 120,000 shares of the
Company’s restricted common stock at a per share value equal
to $0.25.
B.
Bonus Fees . Executive will be eligible for incentive
bonuses predicated on mutually agreed upon goals attached in
Exhibit B.
5. Term and
Survivability . The term of this Agreement shall be for a
period of three (3) months, beginning on the Effective Date.
Notwithstanding the foregoing, either party shall have the right to
terminate this Agreement at any time, with or without cause,
effective immediately upon written notice to the other party.
6. Costs and
Expenses of Management Company’s Performance . Except as
set forth in the attached Schedules, all costs and expenses of
Management Company’s and Executive’s performance
hereunder shall be borne by the Company, so long as the Company
agrees verbally or in writing to reimburse or pay such costs and
expenses.
7. Taxes . As
an independent contractor, Management Company acknowledges and
agrees that it is solely responsible for the payment of any taxes
and/or assessments imposed on account of the payment of
compensation to, or the performance of services by Management
Company pursuant this Agreement, including, without limitation, any
unemployment insurance tax, federal and state income taxes, federal
Social Security (FICA) payments, and state disability insurance
taxes. The Company shall not make any withholdings or payments of
said taxes or assessments with respect to amounts paid to
Management Company hereunder; provided, however, that if required
by law or any governmental agency, the Company shall withhold such
taxes or assessments from amounts due Management Company, and any
such withholding shall be for Management Company’s account
and shall not be reimbursed by the Company to Management Company.
Management Company expressly agrees to make all payments of such
taxes, as and when the same may become due and payable with respect
to the compensation earned under this Agreement.
8.
Confidentiality. For a period of twenty four months from the
termination of this Agreement, Management Company agrees that
Management Company will not, except when required by applicable law
or order of a court, during the term of this Agreement or
thereafter, disclose directly or indirectly to any person or
entity, any Trade Secrets (as defined below) or Confidential
Information (as defined below) or other information treated as
confidential by the Company known, learned or acquired from the
Company by the Management Company during the period of the
Management Company’s engagement by the Company. For purposes
of this Agreement, “ Confidential Information ”
shall mean any and all Trade Secrets, knowledge, data or know-how
of the Company, any of its affiliates, or proprietary information
of third parties in the possession of the Company or any of its
affiliates, and any nonpublic technical, training, financial and/or
business information treated as confidential by the Company or any
of its affiliates, including such information, knowledge, Trade
Secret or data conceived, originated, discovered or developed by
Management Company hereunder. For purposes of this Agreement,
“ Trade Secrets ” shall include, without
limitation, any formula, concept, pattern, processes, designs,
device, software, systems, list of customers, training manuals,
marketing or sales or service plans, business plans, marketing
plans, financial information, or compilation of information which
is used in the Company’s business or in the business of any
of its affiliates. Confidential Information and Trade Secrets shall
not include, and the foregoing shall not apply to, information that
is (i) generally available to the public other than a result of a
disclosure by Management Company; (ii) available to Management
Company on a non-confidential basis prior to the disclosure by
Company to Management Company; (iii) available to the Management
Company on a non-confidential basis from a source other than
Company or is affiliates, provide, however, that such source is not
bound by a confidentiality agreement; or (iv) required to be
disclosed by Management Company by law or pursuant to court
order
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