EXHIBIT 10.4
EMPLOYMENT CONTRACT
THIS AGREEMENT, made between INTEGRATED PETROLEUM SYSTEMS CORPORATION,
whose mailing address is 4590 South Yosemite, Building F-2, Suite 219 of the
County of Arapahoe, State of Colorado (herein referred to as "Employer" or
"IPS") and RICHARD D. BARDEN of Englewood, Colorado, herein referred to as
"Employee":
RECITALS
IPS is engaged in the business of developing specialized software and
computer systems for gathering, processing and distributing volumetric,
technical office at the aforesaid address. Employee has been engaged in the oil
and gas business for more than eighteen years and has developed and expertise
which will benefit Employer. Employee is willing to be employed by IPS, and IPS
is willing to employ employee, on the terms, covenants, and conditions
hereinafter set forth.
Article I:
EMPLOYMENT
Employer hereby employs, engages, and hires employee as President to serve
as chief executive officer, and employee hereby accepts and agrees to such
hiring, engagement and employment, subject to the general supervision and
pursuant to the orders, resolutions and directives of the Board of Directors.
Employee shall perform such duties as are customarily performed by one holding
such position in other, same, or similar business or enterprises as that engaged
in by employer, and shall also additionally render such other and unrelated
services and duties as may be assigned to him from time to time by the Board of
Directors.
Article II:
BEST EFFORTS OF EMPLOYEE
Employee agrees that he will at all times faithfully, industriously, and to
the best of his ability, experience, and talents, perform all of the duties that
may be required of and from him pursuant to the express and implicit terms
hereof, to the reasonable satisfaction of employer. Such duties shall be
rendered at the aforesaid principal place of business and/or at such other place
or places as employer shall in good faith require or as the interest, needs,
business, or opportunity of employer shall require.
Article III:
TERMS OF EMPLOYMENT
The term of this agreement shall be a period of six (6) years, commencing on
January 1, 1992, and terminating on December 31, 1997, subject, however, to
prior termination as hereinafter provided. At the expiration, this agreement
shall be considered renewed for regular periods of one year, provided neither
party submits a notice of termination.
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Article IV:
COMPENSATION OF EMPLOYEE
Employer shall pay employee, and employee shall accept from employer, in
full payment for employee's services hereunder, compensation which includes the
totality of benefits as defined in this article as follows:
4.1 Beginning January 1, 1992, at the rate of Sixty Five Thousand Dollars
($65,000.00) per year, which shall be payable biweekly. Said compensation shall
continue until such time as IPS has completed the Research and Development and
the Testing phases of its products, or until September 1, 1992, whichever first
occurs. Completion of the aforesaid phases shall be construed solely by the
Board of Directors;
4.2 At such time as the term defined in paragraph 4.1 has been fulfilled,
Employee's compensation shall be raised to Seventy Eight Thousand Dollars
($78,000.00) per year, payable biweekly as above. Said salary shall continue
until such time as IPS has attained the total of One Million Dollars
($1,000,000.00) in gross sales as represented by the official books of account
of the Corporation;
4.3 At such time as IPS has attained One Million Dollars ($1,000,000.00) in
gross sales as defined in paragraph 4.2, Employee's compensation shall be
increased to Ninety Six Thousand, Two Hundred Dollars ($96,200.00) per year,
which shall be payable biweekly as above;
4.4 Thereafter the Board of Directors shall review employee's compensation
annually and shall increase, but not decrease, Employee's compensation
commensurate with the financial ability of the company and in accordance with
compensation packages paid to chief executive officers of other companies of
similar size and operation;
4.5 In addition to the salary to be paid pursuant to paragraphs 4.1, 4.2
and 4.3, above the total compensation package referred to herein shall include
major medical insurance, disability insurance, vacation of four weeks per year
during the phases defined in paragraph 4.1 and 4.2, increasing to five weeks per
year beginning with the phase defined in paragraph 4.3 and thereafter; also, no
less than eight (8) paid holidays annually and five (5) paid sick days annually.
Employee shall be entitled (i) to accrue and carry forward into any new annual
period up to two (2) weeks of vacation time and thirty (30) sick days which such
accrued vacation and sick days shall be over and above for each calendar year,
and (ii) to be paid for any and all unused vacation time or sick days which are
not or may not be carried forward as described above.
4.6 Employer shall reimburse employee for all necessary expenses incurred
by employee while traveling pursuant to employer's directions.
Article V:
TERMINATION DUE TO DISCONTINUANCE OF BUSINESS
Anything herein contained to the contrary notwithstanding, in the event
that employer shall discontinue its business, then this agreement shall
terminate as of the last day of the month on which employer ceases operations at
such location with the same force and effect as if such last day of the month
were originally set as the termination date hereof.
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Article VI:
FULL TIME EMPLOYMENT
Employee shall devote substantially all of his time, attention, knowledge, and
skills to the business and interest of employer, and employer shall be entitled
to all of the benefits, profits or other issues arising from or incident to all
work, services and advice of employee.
Article VII:
TRADE SECRETS
Employee shall not at any time or in any manner, either directly or
indirectly, divulge, disclose or communicate to any person, form or corporation
in any manner whatsoever any information concerning any matters affecting or
relating to the business of employer, including without limiting the generality
of the foregoing, any of its customers, the prices it obtains or has obtained
from the sale of, or at which it sells or has sold, its products, or any other
information concerning the business of employer, its manner of operation, its
plans, processes, or other date without regards to whether all of the foregoing
matters will be deemed confidential, material, or important, the parties hereto
stipulating that as between them, the same are important, material, and
confidential and gravely affect the effective and successful conduct of the
business of employer, and employer's good will, and that any breach of terms of
this paragraph shall be a material breach of this agreement.
Article VIII:
COMPLETE AGREEMENT
This contract contains the complete agreement concerning the employment
arrangement between the parties and shall, as of the effective date hereof,
supersede all other agreements between the parties. The parties stipulate that
neither of them has made any representation with respect to the subject matter
of this agreement or any representations including the execution and delivery
hereof except such representations as are specifically set forth herein and each
of the parties hereto acknowledge that he or it has relied on its own judgment
in entering into this agreement. The parties hereto further acknowledge that any
payments or representations that may have heretofore been made by either of them
to the other are of no effect and that neither of them has relied thereon in
connection with his or its dealing with the other.
Article IX:
MODIFICATION OF CONTRACT
NO waiver or modification of this agreement or of any covenant, condition
or limitation herein contained shall be valid unless in writing and duly
executed both parties hereto and no evidence of any waiver or modification shall
be offered or received in evidence of any waiver or modification shall be
offered or received in evidence of any proceeding, arbitration, or litigation
between the parties hereto arising out of or affecting this agreement, or the
rights or obligations of the parties hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid, and the parties further
agree that the provisions of this section may not be waived except as herein set
forth.
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Article X:
FIDELITY BOND
Employee will immediately make application for a fidelity or surety bond,
to any company designated by employer, in such amount as may be specified by
employer. Employer shall pay the premium on such bond, and such bond shall
continue in force in such amounts as employer may from time to time require and
in the event such bond is refused, or is ever canceled, except with the approval
of employer, employee may be terminated immediately and employee shall be
entitled to compensation to the date of such termination only.
Article XI:
TERMINATION
This agreement may not be terminated by either party except upon good
cause. If Employer shall so terminate this agreement, employee shall be entitled
to salary for nine (9) months. It is further agreed that any breach of any of
the terms of this contract by either party hereto will result in immediate and
irreparable injury to the other party and will authorize recourse to injunction
and/or specific performance as well as to all other legal or equitable remedies
to which such injured party may be entitled hereunder.
Article XII:
TERMINATION FOR DISABILITY
12.1 Notwithstanding anything in this agreement to the contrary, employer
is hereby given the option to terminate this agreement in the event that
employee shall, during the term hereof, become permanently disabled, as the term
"permanently disabled" is hereinafter fixed and defined. Such options shall be
deemed exercised by employer giving notice to employee via registered mail,
addressed to him in care of employer at 4950 South Yosemite, F-2, Suite 219,
Englewood, Colorado 80111, or at such other address as employee shall designate
in writing, of employer's intention to terminate this agreement on the last day
of the month during which such notice is mailed. On the giving of such notice,
this agreement shall cease on the last day of the month in which the notice is
so mailed, with the same force and effect as if such last day of the month were
the date originally herein set forth as the termination date hereof.
12.2 For the purpose of this agreement employee shall be deemed to have
become permanently disabled, if, during any year of the term hereof, because of
ill health, physical or mental disability or for other causes beyond his control
he shall have been continuously unable or unwilling or shall have failed to
perform his duties for a total period hereunder for ninety (90) consecutive
days, or if, during any year of the term hereof, he shall have been unable or
unwilling or shall have failed to perform his duties for a total period of one
hundred twenty (120) days, irrespective of whether or not such days are
consecutive. For the purposes hereof the term "any year of the term hereof" is
defined to mean any 12 calendar months period commencing on January 1, and
terminating on December 31, during the term of this agreement.
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Article XIII:
SEVERABILITY
All agreements and covenants contained herein are severable, and in the
event any of them, with the exception of those contained in Sections One and
Four hereof, shall be held to be invalid by any competent court, this contract
shall be interpreted as if such invalid agreements or covenants were not
contained herein.
Article XIV:
CHOICE OF LAW
It is the intention of the parties hereto that this agreement and the
performance hereunder and all suits and special proceedings hereunder be
construed in accordance with and under and pursuant to the laws of the State of
Colorado and that in any action, special proceeding or other proceeding that may
be brought arising out of, in connection with, or by reason of this agreement,
the laws of the State of Colorado shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the jurisdiction in
which any action or special proceeding may be instituted.
IN WITNESS WHEREOF, the parties have executed this agreement on this 1st
day of November, 1991.
INTEGRATED PETROLEUM
SERVICES CORPORATION:
By: /s/ Richard D. Barden, Director
---------------------------
Richard D. Barden, Director
By: /s/ Mark T. Shipley, Director
-------------------------
Mark T. Shipley, Director
By: /s/ William S. Grigel, Director
---------------------------
William S. Grigel, Director
EMPLOYEE:
/s/ Richard D. Barden
-----------------
Richard D. Barden
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AMENDED EMPLOYMENT CONTRACT
WHEREAS, RICHARD D. BARDEN of Englewood, Colorado (hereafter referred to
him as "Employee") entered into an Employment Contract dated November 1, 1991,
for and with INTEGRATED PETROLEUM SYSTEMS CORPORATION, whose mailing address is
4590 South Yosemite, Building F-2, Suite 219 of the County of Arapahoe, State of
Colorado (hereafter referred to as "Employer" or "IPS"); and
WHEREAS, it is the mutual desire of these Parties to modify the terms of
the said contract in order to insure Employee's continued service with IPS.
NOW THEREFORE, the Parties stipulate and agree that the said Employment
Contract shall be and hereby is modified and amended as follows:
1. Article III
The first sentence shall be modified to read as follows:
"This agreement shall apply for a period of nine (9) years, commencing on
January 1, 1992, and terminating on December 31, 2000, subject, however, to
prior termination as hereinafter provided."
2. Article IV
Section 4.2 shall be modified to read:
"At such time as the term defined in paragraph 4.1 has been fulfilled,
Employee's compensation shall be raised to Seventy Eight Thousand Dollars
($78,000.00) per year, payable biweekly as above. Said salary shall
continue until such time as IPS has attained One Million Dollars
($1,000,000) in gross sales as represented by the official books of account
of the Corporation, or until January 1, 1996, whichever occurs first;"
Section 4.3 shall be modified to read:
"As of January 1, 1996, or at such time as IPS has attained One Million
Dollars ($1,000,000) in gross sales as defined in paragraph 4.2, above,
whichever occurs first, Employee's compensation shall be increased to
Ninety Six Thousand, Two Hundred Dollars ($96,200.00) per year, which shall
be payable biweekly as above;"
Section 4.5 shall be modified to read:
"In addition to the salary to be paid pursuant to paragraphs 4.1, 4.2 and
4.3, above, the total compensation package referred to herein shall include
an annual bonus, major medical insurance, disability insurance, vacation of
four weeks per year during the phases defined in paragraph 4.1 and 4.2,
increasing to five weeks per year beginning with the phase defined in
paragraph 4.3 and thereafter,. . ."
EXCEPT as indicated above, all of the other terms of the said Employment
Contract shall remain the same and unchanged.
IN WITNESS WHEREOF, the parties have ratified and executed this agreement
on this 4th day of October, 1994.
INTEGRATED PETROLEUM
SYSTEMS CORPORATION:
By: /s/ Richard D. Barden, Director
---------------------------
Richard D. Barden, Director
By: /s/ Mark T. Shipley, Director
-------------------------
Mark T. Shipley, Director
EMPLOYEE:
By: /s/ Richard D. Barden, Director
---------------------------
Richard D. Barden, Director
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