EXHIBIT 10.1
ALDEROX, INC
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of this 6th day of August 2008, by
and between Brian Creek ("Employee") and ALDEROX, INC., a Colorado Corporation
with its principal place of business at 940 Calle Amanecer, Suite E, San
Clemente, California, USA 92673 ("Alderox" or the "Company").
1. RECITALS:
1.1 The Company is in the business of manufacturing and marketing release agents
and lubricants for asphalt, cement, mining and related industries, the
formulation and ingredients of the release agent are confidential.
1.2 Employee has experience in the businesses conducted and to be conducted by
the Company, or in related businesses, and desires to be employed by the
Company, and the Company desires to employ the Employee, on the terms and
conditions specified below:
2. COVENANTS:
In consideration of the recitals and mutual covenants contained herein, the
parties agree that:
2.1 EMPLOYMENT. The Company will employ Employee to serve as Chief Financial
Officer, with the duties listed and defined by the Company or the Board, in
connection with the Company's operations and Employee does hereby accept such
employment, all subject to the terms and provisions of this Agreement. Employee
represents that he is legally free to enter into this Agreement and that it does
not conflict with any of his duties or obligations to any other person and that
he is not in any way restricted by any duties or obligations to any other person
or entity from contributing his knowledge and talents to the Company in
performing his duties hereunder.
2.2 START DATE. The start date of employment shall be September 9, 2008.
2.3 TERM. The Company or the Employee may at any time terminate this Agreement
and the employment relationship on ninety (90) days' prior notice to the other
within the first year of this agreement and on one-hundred eighty (180) days'
notice thereafter.
2.4 COMPENSATION AND BENEFITS. During the term of employment, the Company agrees
to compensate Employee (from the commencement date of this agreement) at the
rate of not less than $150,000 per year base compensation. Thereafter,
Employee's annual compensation shall be subject to annual review and shall be as
may be established by the Board of Directors, but in no event shall Employee's
minimum base compensation be reduced below $150,000 per year. Such compensation
shall be payable monthly or on such more frequent basis as the Company may
establish.
2.4.1 BONUSES. An annual bonus of up to 100% of the Employee's annual salary
will be paid to Employee in the second month following the month of the
fiscal year end, the amount of which is based upon attainment of the
Company's annual budgeted Net Income according to the formula detailed in
Schedule A. Employee shall be entitled to participate, without proration,
in the bonus program for the fiscal year in which he is hired.
2.4.2 STOCK OPTIONS. Employee shall be granted stock options as described in the
Stock Option Agreement and shall represent a total of 1,900,000 options
granted and vesting according to the following schedule. 40% granted on
the date of the contract and vesting on the first anniversary of the
contract, 30% granted on the first anniversary of the contract and vesting
on the second anniversary of the contract and a final 30% granted on the
second anniversary of the contract and vesting on the third anniversary of
the contract. In the event of a change of control (as that term is
commonly defined) of the Company, all options granted to the Employee are
deemed to have vested the day prior to such change in control. All options
expire 5 years from the vesting date. The strike price of the options will
be set based upon the average closing price of the Company's stock during
the twenty days immediately prior to the grant date. In the event that the
Company elects to issue additional shares of stock, warrants, or
convertible debt, subsequent to the contract date, the Company's Board of
Directors shall consider whether additional shares or options should be
granted to Employee in order to adjust for the dilution suffered by the
issuance of the new shares.
2.4.3 RENT EXPENSE. The Company shall work with Employee and shall lease a
residence chosen by Employee for a period not to exceed 12 months and for
a monthly lease amount of not more than $3,500 per month. Employee shall
assume responsibility for full payment of this lease beginning the earlier
of: a) the month after the sale of Employee's current residence in
Chicago; or b) month ten.
2.4.4 MOVING ALLOWANCE. The Company will pay the full cost of the Employee's
move from his residence in Chicago, either by paying the moving company
directly, or by reimbursing Employee for the cost of the move, grossed up
for the tax effect of such reimbursement. Employee agrees to undertake the
move in a cost-effective manner, and to provide the Company with an
estimate of the cost of the move in advance, if one is requested.
2.4.5 EXPENSE REIMBURSEMENT. The Company agrees to reimburse Employee promptly
for, or to pay on behalf of Employee, any reasonable expenses incurred by
Employee (to the extent not paid by others) in the furtherance of the
goals of the Company upon submission of a satisfactory accounting by
Employee.
2.4.6 PAID VACATION. Four (4) weeks annual paid vacation. Vacation shall accrue
on a monthly basis or part thereof; however, once unused vacation has
accrued to a maximum of four (4) weeks, accrual of additional vacation
shall cease until the balance of accrued vacation has been reduced below
three (3) weeks. The Company will not cause the vacation accrual to cease
by withholding its approval of any of the Employee's vacation requests.
2.4.7 AUTO ALLOWANCE. Employee shall receive an auto allowance of $575 per month
as full compensation for use of employee's personal auto for company
related business.
2.4.8 MEDICAL & DENTAL. Employee shall receive both medical and dental coverage,
as per ALDEROX's standard employee coverage.
2.4.9 Any other standard benefits that may be established by the Company or its
affiliates for its employees.
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2.5 DUTIES. Employee will devote his time, energy and attention to the
development of ALDEROX's scope of business and to perform such reasonable
responsibilities and duties as may be assigned from time to time by the Company
and its Board of Directors. These matters will include (not listed in order of
importance), but shall not be limited to, the following:
(a) Keep the Board of Directors properly and fully informed of his
conduct of the business;
(b) Establish internal controls and systems;
(c) Direct the financial and accounting affairs of the Company;
(d) The Employee will take on the usual duties that are involved with
the position of CFO in accordance with the terms and conditions of
this document, with the articles of incorporation of the Company,
with the law and with the instructions and directives of the Board
of Directors;
(e) Other tasks that may be determined by the Board of Directors from
time to time; and
(f) Courteous and professional representation of the Company at all
times
2.6 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. It is understood that Employee
will acquire and be informed of confidential technical and/or business
information used by and belonging to the Company ("Confidential Information"),
including Confidential Information as defined in the Company's EMPLOYEE
NON-DISCLOSURE AGREEMENT. Employee agrees that some or all of such Confidential
Information is in the nature of trade secrets and is the sole property of the
Company. Employee will keep confidential, and will not disclose to any third
person or entity, any Confidential Information without Employer's consent and
pursuant to the proceedings further defined in the Company's EMPLOYEE
NON-DISCLOSURE AGREEMENT.
3 CONFIDENTIALITY
3.1 CONFIDENTIALITY AFTER TERMINATION OF EMPLOYMENT. Employee agrees that upon
termination of employment, he or she shall surrender promptly to the Company any
and all documents and property of the Company, including, but not limited to:
reports, drawings, manuals, correspondence, customer lists and other
Confidential Information which he or she may possess, and all other materials
and all copies thereof relating in any way to the Company's business, or in any
way obtained by the Employee during the course of his employment, and that he
shall not retain any copies, notes or abstracts of the foregoing. Employee
further agrees that such documents, lists and information shall be and remain
the sole property of the Company. All of the terms of paragraph 2.8 shall remain
in full force and effect both during the continuation of employment of Employee
by the Company and after the termination of employment for any reason.
3.2 CONFIDENTIALITY. Employee agrees to execute standard Company documents
establishing the Employee's duties of confidentiality and the rights of the
Company to all inventions, trade secrets, etc., developed by the Employee in the
course of his employment, namely the EMPLOYEE NON-DISCLOSURE AGREEMENT.
4 OTHER PROVISIONS
4.1 NON-COMPETITION. Employee agrees that during the term of his/her employment
by Company, Employee will not engage in any way whatsoever, directly or
indirectly, in any business that is competitive with the Company and its
subsidiaries and affiliate operations, nor solicit or in any other manner work
for or assist any business which is competitive to the Company and its
subsidiaries and affiliate operations.
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4.2 NON-PARTICIPATION IN COMPETITIVE ACTIVITIES. During the term of this
agreement, Employee will undertake no planning for or organization of any
business activity competitive with the work he/she performs as an Employee of
the Company and its subsidiaries and affiliate operations, and Employee will not
combine or participate with other employees of the Company and its subsidiaries
and affiliate operations for the purpose of organization of any such competitive
business activity.
4.3 ASSIGNMENT TO COMPANY OF PROPRIETARY RIGHTS. Employee agrees to execute any
and all documents and take any and all other actions necessary or desirable for
the assignment to the Company and its subsidiaries and affiliate operations of
all of his/her interests in any Confidential Information, trade secrets,
copyrightable materials and patentable or patented ideas developed by him/her,
alone or in conjunction with others, in the course of his/her employment by the
Company.
4.4 INJUNCTIVE RELIEF. THE PARTIES HERETO agree and acknowledge that many of the
rights conveyed by this Agreement are of a unique and special nature and that
the Company and its subsidiaries and affiliate operations will not have an
adequate remedy at law in the event of failure of Employee to abide by its terms
and conditions, nor will money damages adequately compensate for such injury. It
is, therefore, agreed between the parties that in the event of breach by
Employee of Employee's covenants contained in this Agreement, the Company and
its subsidiaries and affiliate operations shall have the rights, among other
rights, to damages sustained thereby and to a preliminary or permanent
injunction to restrain Employee from the prohibited acts. Employee agrees that
this Paragraph shall survive for one year after the termination of his
employment, and Employee shall be bound by its terms for a period of one year
subsequent to the termination of his/her employment, providing that the Company
and its subsidiaries and affiliate operations continue to conduct the same
business or businesses as they were conducting during the period of this
Agreement. Nothing herein contained shall in any way limit or exclude any and
all other rights granted by law or equity to the Company and its subsidiaries
and affiliate operations.
4.5 TERMINATION OF EMPLOYMENT. If Employee's employment terminates or is
terminated, the rights and obligations of the parties shall depend upon the
reason for termination. Termination may occur for any one of the following
reasons: termination by the Company for cause, termination by the Company
without cause, termination by Employee without cause, termination by Employee
with cause, or termination of Employee by reason of his death or long-term
disability.
4.5.1 TERMINATION BY COMPANY FOR CAUSE. In the event of termination by the
Company for cause, which shall consist only of specific actions knowingly
and intentionally taken by Employee to the specific material detriment of
the Company and not reasonably intended by Employee to benefit the
Company, the Employee will only be eligible to receive any unpaid salary
accrued through the last day of employment. Employee agrees, if he/she is
so terminated for cause, that, for a period of one year following the
termination of employment of the Employee, Employee will not engage in any
way whatsoever, directly or indirectly, in any business that is
competitive with the Company and its subsidiaries and affiliates utilizing
any Confidential Information acquired while organizing, founding, or
acting as an officer, director or employee of the Company, its
subsidiaries or affiliates, nor solicit customers, investors, service
providers, or strategic partners of the Company, with the Company's, or
its subsidiary's or affiliates' business whether by interfering with or
raiding their employees, or disrupting or interfering with their
relationships with customers, investors, service providers, or strategic
partners.
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4.5.2 TERMINATION BY COMPANY WITHOUT CAUSE. In the event of termination by the
Company without cause, i.e., an involuntary termination Employee shall be
entitled to all unpaid salary, bonuses, and other benefits accrued through
the last day of employment plus 12 months salary and benefits from the
date of termination. Company must give Employee a minimum of 30 days
notice of termination in writing.
4.5.3 TERMINATION BY EMPLOYEE WITHOUT CAUSE. In the event of termination by
Employee without cause, i.e., a voluntary termination, the Employee will
receive all unpaid salary, bonuses, and other benefits accrued through the
last day of employment Employee must give the Company a minimum of 30 days
notice of termination in writing. Employee agrees, if he/she so terminates
without cause, that, for a period of one year following the termination of
employment of the Employee, Employee will not engage in any way
whatsoever, directly or indirectly, in any business that is competitive
with the Company and its subsidiaries and affiliates utilizing any
Confidential Information acquired while organizing, founding, or acting as
an officer, director or employee of the Company, its subsidiaries, or
affiliates, nor solicit customers, investors, service providers, or
strategic partners of the Company, or any of its subsidiaries or operating
affiliates; or disrupt, damage, impair or interfere with the Company's, or
its subsidiary's or affiliates' business whether by interfering with or
raiding their employees, or disrupting or interfering with their
relationships with customers, investors, service providers or strategic
partners. Thereafter, he/she will be free to so compete or participate
with a competitor.
4.5.4 TERMINATION BY EMPLOYEE WITH CAUSE. In the event of termination by
Employee with cause, which shall consist only of a material breach of the
agreement by the Company including, without limitation, nonpayment of
salary or other compensation due, non-reimbursement of business expenses,
or failure to provide either health insurance allowance or coverage or
other benefits, the Company will have thirty days after receipt of notice
of termination by Employee remedy the situation or to challenge the
termination by Employee with cause. If Company does not remedy the
situation within the allotted 30 day period, Employee shall be entitled to
all unpaid salary, bonuses, and other benefits accrued through the last
day of employment plus 6 weeks salary from the last day of employment.
4.5.5 TERMINATION BY DEATH OR DISABILITY. In the event of termination by reason
of death of the Employee or the long-term disability of the Employee,
Employee shall be entitled to termination pay equal to three month's pay
plus three month's benefits, and will receive all unpaid salary, bonuses,
and other benefits accrued through the last day of employment. All
payments due under this paragraph will be made on the date of termination
of employment. For purposes of this section, the Company may terminate the
Employee due to long-term disability if the Employee is unable to perform
any of his duties for a period of ninety consecutive days or more, for
reasons of sickness or injury
4.5.6 TERMINATION FOR ANY REASON. In the event of termination for any reason,
all pay due under this Agreement is payable by the Company within 30 days
of the last day of employment.
4.6 FUTURE AGREEMENT. This Agreement and the documents referred to herein
contain the entire agreement of the parties relevant to the subject matter
hereof, and it may be amended only by a written document signed by both Employee
and Company.
4.7 GOVERNING LAW. The laws of California, without regard to conflicts of laws
principles thereof, shall govern this Agreement and any legal proceedings will
take place in California.
4.8 BINDING EFFECT. This Agreement shall inure to the benefit of and be binding
upon the heirs, successors and assigns of the parties hereto.
EMPLOYEE:
/S/ BRIAN CREEK 8/8/08
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BRIAN CREEK
ALDEROX, INC.
By: /S/ MIKE DAVIES
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Michael C. Davies
Its. CEO, DIRECTOR