ex_10-1.htm


    NON-EMPLOYEE
INTERIM CHIEF OPERATING OFFICER

    ENGAGEMENT
AGREEMENT

     

    This
Non-employee Interim Chief
Operating Officer Agreement (“Agreement”) is entered into
as of the 5th 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.

    


    


    


    
      
         

      

      
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    4.
Compensation.

    


    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. Management Company shall notify the Company of any information that
comes to its attention that might indicate that there has been a loss of
confidentiality with respect to the Confidential Information.

    


    
      
         

      

      
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    9.
Return of the
Company’s Proprietary Materials. Management Company agrees to deliver
promptly to the Company on termination of this Agreement for whatever reason, or
at any time the Company may so request, all documents, records, artwork,
designs, data, drawings, flowcharts, listings, models, sketches, apparatus,
notebooks, disks, notes, copies and similar repositories of Confidential
Information and any other documents of a confidential nature belonging to the
Company, including all copies, summaries, records, descriptions, modifications,
drawings or adaptations of such materials which Management Company may then
possess or have under its control. Management Company further agrees that upon
termination of this Agreement, Management Company’s, employees, Management
Company’s, agents or independent contractors shall not retain any document, data
or other material of any description containing any Confidential Information or
proprietary materials of the Company.

    


    10.
Assignment of
Proprietary Rights. Management Company hereby assigns and transfers to
the Company all right, title and interest that Management Company may have, if
any, in and to all Proprietary Rights (whether or not patentable or
copyrightable) made, conceived, developed, written or first reduced to practice
by Management Company, whether solely or jointly with others, during the period
of Management Company’s engagement by the Company which directly relate to and
claim an improvement upon the technology or intellectual property owned by the
Company.

    


    Management
Company acknowledges and agrees that the Company shall have all right, title and
interest in, among other items, all research information and all documentation
or manuals related thereto that Management Company develops or prepares for the
Company hereunder during the period of Management Company’s engagement by the
Company and that such work by Management Company shall be work made for hire and
that the Company shall be the sole author thereof for all purposes under
applicable copyright and other intellectual property laws. With respect to all
Proprietary Rights which are assigned to the Company pursuant to this Section
10, Management Company will assist the Company in any reasonable manner for
reasonable compensation to obtain for the Company’s benefit patents and
copyrights thereon in any and all jurisdictions as may be designated by the
Company, and Management Company will execute, when requested, patent and
copyright applications and assignments thereof to the Company, or other persons
designated by the Company, and any other lawful documents deemed necessary by
the Company to carry out the purposes of this Agreement.

    


    
      
         

      

      
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    11.
Trade Secrets of
Others. Management Company represents to the Company that its performance
of all the terms of this Agreement does not and will not breach any agreement to
keep in confidence proprietary information or trade secrets acquired by
Management Company in confidence or in trust prior to its engagement by the
Company, and Management Company will not disclose to the Company, or induce the
Company to use, any confidential or proprietary information or material
belonging to others. Management Company agrees not to enter into any agreement,
either written or oral, in conflict with this Agreement.

    


    12.
Other
Obligations. Management Company acknowledges that the Company, from time
to time, may have agreements with other persons which impose obligations or
restrictions on the Company regarding proprietary rights made or developed
during the course of work thereunder or regarding the confidential nature of
such work. Management Company agrees to be bound by all such obligations and
restrictions made known to him in writing by the Company and to take action as
may be reasonably required to discharge the obligations of the Company
thereunder.

    


    13.
Independent
Contractor. Management Company and designated Non-employee Interim COO
individually shall not be deemed to be employees of the Company for any purpose
whatsoever. Management Company shall have the sole and exclusive control over
its employees, consultants or independent contractors who provide services to
the Company on behalf of Management Company, and over the labor and employee
relations policies and policies relating to wages, hours, working conditions or
other conditions of its employees, consultants or independent
contractors.

    


    14.
Indemnification. The
Company shall, at its own expense, defend, indemnify and hold harmless the
Management Company and Management Company’s employees, consultants or
independent contractors who provide services for Company on behalf of Management
Company from and against any and all liabilities, claims, actions, losses, costs
and expenses (including reasonable attorneys’ fees and disbursements) (i)
relating to or arising out of the Company’s actual or alleged violation of any
law, statute, ordinance, order, rule or regulation; or (ii) to the extent such
Claim is primarily and directly based upon information or direction provided by
the Company to Management Company and Management Company’s employees,
consultants and independent contractors; provided, however, the foregoing shall
not apply to any portion of such Claims to the extent it is found to have
resulted primarily and directly from Management Company’s (A) infringement of
any United States patent, foreign letters patent, license, trademark, copyright,
trade secret or any other proprietary right other than as may be directed or
induced by the Company for the services provided by Management Company
hereunder; (B) breach of this Agreement or any other agreement; (C) violation of
any law, statute, ordinance, order, rule or regulation; or (D) any negligence or
intentional misconduct in connection with such performance. This indemnification
is not voided by the termination of this agreement.

    


    15.
Non-Solicitation.     Management
Company, Executive and its employees, consultants and independent contractors
will not, during the term this Agreement and for one year thereafter, directly
or indirectly (whether as an owner, partner, shareholder, agent, officer,
director, employee, independent contractor, consultant, or otherwise) with or
through any individual or entity: (i) employ, engage or solicit for employment
any individual who is, or was at any time during the twelve-month period
immediately prior to the termination of this Agreement for any reason, an
employee of the Company, or otherwise seek to adversely influence or alter such
individual’s relationship with the Company; or (ii) solicit or encourage any
individual or entity that is, or was during the twelve-month period immediately
prior to the termination of this Agreement for any reason, a customer or vendor
of the Company to terminate or otherwise alter his, her or its relationship with
the Company or any of its affiliates.

    


    
      
         

      

      
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    16.
Governing Law.
This Agreement shall be governed, construed and interpreted in accordance with
the internal laws of the State of California.

    


    17.
Entire Agreement:
Modifications and Amendments. The terms of this Agreement are intended by
the parties as a final expression of their agreement with respect-to such terms
as are included in this Agreement and may not be contradicted by evidence of any
prior or contemporaneous agreement. The Exhibits referred to in this Agreement
are incorporated into this Agreement by this reference. This Agreement may not
be modified, changed or supplemented, nor may any obligations hereunder be
waived or extensions of time for performance granted, except by written
instrument signed by the parties or by their agents duly authorized in writing
or as otherwise expressly permitted herein.

    


    18.
Prohibition of
Assignment. This Agreement and the rights, duties and obligations
hereunder may not be assigned or delegated by Management Company without the
prior written consent of the Company. Any assignment of rights or delegation of
duties or obligations hereunder made without such prior written consent shall be
void and of no effect.

    


    19.
Approval of Public
Communications and Press Releases. Management Company and Company agree
that any and all public announcement regarding Management Company or
Non-employee Interim COO must be approved by Management Company in
advance.

    


    20.
Binding Effect:
Successors and Assignment. This Agreement and the provisions hereof shall
be binding upon each of the parties, their successors and permitted
assigns.

    


    21.
Validity. This
Agreement is intended to be valid and enforceable in accordance with its terms
to the fullest extent permitted by law. If any provision of this Agreement is
found to be invalid or unenforceable by any court of competent Jurisdiction, the
invalidity or unenforceability of such provision shall not affect the validity
or enforceability of all the remaining provisions hereof.

    


    22.
Notices. All
notices and other communications hereunder shall be in writing and, unless
otherwise provided herein, shall be deemed duly given if delivered personally or
by telecopy or mailed by registered or certified mail (return receipt requested)
or by Federal Express or other similar courier service to the parties at the
following addresses or (at such other address for the party as shall be
specified by like notice):

    


    
      
         

      

      
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    (i)
If to the Company:

    Rubicon
Financial Incorporated

    Suite
600

    4100
Newport Place

    Newport
Beach, CA  92660

    T:
(949) 798-7220

    F:
(949) 798-7278

    


    (ii)
If to Management Company:

    Bootstrap
Real Estate Investments, LLC

    c/o
Todd Vande Hei, Managing Member

    15
Calle Sonador

    San
Clemente, CA 92673

    T:
(949) 534-9144

    F:
(949) ______________

    


                Any
such notice, demand or other communication shall be deemed to have been given on
the date personally delivered or as of the date received, as the case may
be.

    


    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.

     

    Company:

    Rubicon
Financial Incorporated

    


    


    By:
/s/ Joseph Mangiapane,
Jr.                                                                

           Joseph
Mangiapane, Jr., CEO

    


    Management
Company:

    Bootstrap
Real Estate Investments, LLC

     

    


    By:
/s/ Todd Vande
Hei                                                                

          Todd
Vande Hei, Managing Member

    


    Executive:

    


    


    /s/ Todd Vande
Hei                                                                

    Todd
Vande Hei


    
      
         


      

      
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