ex10-8.htm


Exhibit 10.8


 



AT-WILL EMPLOYMENT, NON-COMPETITION,


CONFIDENTIAL INFORMATION, INVENTION ASSIGNMENT


AND ARBITRATION AGREEMENT







As a condition of my employment with Coil Tubing Technology, Inc., a Nevada corporation, and/or any of its subsidiaries, affiliates, partners, successors or assigns (together the “Company”), and in consideration of my employment with the Company, ten dollars ($10) and other good and valuable consideration, which I confirm receipt of, and my receipt of the compensation now and hereafter paid to me by the Company, I (the “Employee”) agree to the following:


 


1. At-Will Employment.


 


I understand and acknowledge that while my employment with the Company is subject to the Executive Employment Agreement between myself and the Company, such employment can be terminated by the Company at any time (subject to the Executive Employment Agreement) and therefore, such employment is for an unspecified duration and constitutes "at-will" employment.  I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing and signed by an authorized corporate representative of the Company.  I acknowledge that this employment relationship may be terminated at
any time, with or without good cause or for any or no cause, at the option either of the Company or myself, with or without notice, subject to the terms and conditions of the Executive Employment Agreement.


 


2. Non-competition.  As a condition to, and in consideration of, the Company’s entering into the Executive Employment Agreement, and giving Employee access to certain confidential and proprietary information, which Employee recognizes is valuable to the Company and, therefore, its protection and maintenance constitutes a legitimate interest to be protected by the provisions of this Section 2 as applied to Employee and other employees similarly situated to Employee, Employee acknowledges and hereby agrees
as follows:


 


A. that Employee is and will be engaged in the business of the Company;


 


B. that during the period of Employee’s employment under the Executive Employment Agreement, Employee will, become familiar with the Company’s trade secrets and with other proprietary and confidential information concerning the Company;


 


C.  that the obligations of this Agreement are directly related to the employment and are necessary to protect the Company’s legitimate business interests; and that the Company’s need for the covenants set forth in this Agreement are based on the following:  (i) the substantial time, money and effort expended and to be expended by the Company in developing technical designs, technology, processes, materials, equipment, marketing plans and similar confidential information; (ii) the fact that Employee will be personally entrusted with the Company’s confidential and proprietary
information; (iii) the fact that, after having access to the Company’s technology and other confidential information, Employee could become a competitor of the Company; and (iv) the highly competitive nature of the Company’s industry, including the premium that competitors of the Company place on acquiring proprietary and competitive information; and


 




  





  











  






D. that for a period commencing on the Effective Date (as defined in the Executive Employment Agreement) and ending twelve (12) months following termination of Employee’s employment (subject to the provisions of the Executive Employment Agreement), Employee will not, directly or indirectly, serve as employee, agent, consultant, stockholder, director, co-partner or in any other individual or representative capacity,
own, operate, manage, control, engage in, invest in or participate in any manner in, act as consultant or advisor to, render services for (alone or in association with any person, firm, corporation or entity), or otherwise assist any person or entity that directly or indirectly engages or proposes to engage in (i) the same, or a substantially similar, type of business as that in which the Company engages; or (ii) the business of distribution or sale of (A) products and services distributed, sold or license by the Company at the time of termination; or (B) products and services proposed at the time of termination to be distributed, sold or licensed by the Company, anywhere within any of the counties within Texas which are encompassed by and/or which any part of would lie within the area
created by drawing a line from the northern most point of McLennan County, Texas, directly east to the Texas/Louisiana border, following the Texas border south to the southernmost tip of Texas, and from the straight line created by drawing a line from the southernmost tip of Texas directly to the southwestern tip of Webb County, Texas and from the northern most tip of Tom Green County, Texas and from the northernmost tip of Tom Green County to the northernmost tip of McLennan County  (collectively, the “Territory”); provided, however


 


E. that nothing contained herein shall be construed to prevent Employee from investing in the stock or securities of any competing corporation listed on any recognized national securities exchange or traded in the over the counter market in the United States, but only if (i) such investment is of a totally passive nature and does not involve Employee devoting time to the management or operations of such corporation and Employee is not otherwise involved in the business of such corporation; and if (ii) Employee and his associates (as such term is defined in Regulation 14(A) promulgated under the Securities
Exchange Act of 1934, as amended, as in effect on the Effective Date), collectively, do not own, directly or indirectly, more than an aggregate of two percent (2%) of the outstanding stock or securities of such corporation.


 


F. The Employee acknowledges that the foregoing restrictions, as well as the duration and the territorial scope thereof as set above, are under all of the circumstances reasonable and necessary for the protection of the Company and its business.


 


3. Confidential Information.


 


A. Company Information.  I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any Confidential Information of the Company, except under a non-disclosure agreement duly authorized and executed by the Company.  I understand that
“Confidential Information” means any non-public information that relates to the actual or anticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company’s products or services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information.  I further understand that Confidential Information does not include any of the
foregoing items which have become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved or improvements or new versions thereof.


 




  





  











  






B. Former Employer Information.  I agree that I will not, during my employment with the Company, improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity.


 


C. Third Party Information.  I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes.  I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company’s agreement with such third party.


 


4. Inventions.


 


A. Inventions Retained and Licensed.  I have attached hereto, as Exhibit A, a list describing all inventions, original works of authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as “Prior Inventions”), which are being purchased by the Company pursuant to an Intellectual Property
Purchase Agreement dated on or around the date hereof, which relate to the Company’s business, products or research and development, and which are not assigned to the Company hereunder, but are subject to the Intellectual Property Purchase Agreement.  If in the course of my employment with the Company, I incorporate into a Company product, process or service a Prior Invention owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method related thereto.


 


B. Assignment of Inventions.  I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or
reduce to practice, or cause to be conceived or developed or reduced to practice, during the entire period of time I am in the employ of the Company (whether before or after the execution of this Agreement) (collectively referred to as “Inventions”).  I further acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company (whether before or after the execution of this Agreement) and which are protectible by copyright are “works made for hire,” as that term is defined in the United States Copyright Act.  Employee understands that this means that the Company
will have the right to undertake any of the actions set forth in section 106 of the United States Copyright Act (17 U.S.C. § 106) with respect to such copyrightable works prepared by Employee within the scope of Employee’s employment.  Employee understands that this includes, without limitation, the right to sell, license, use, reproduce and have reproduced, create derivative works of, distribute, display, transmit and otherwise commercially exploit such copyrightable works by all means without further compensating the Employee.  I understand and agree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the Company’s efforts to commercialize or
market any such invention.


 




  





  











  






C. Assignment of Other Rights.  In addition to the foregoing assignment of Inventions to the Company, Employee hereby irrevocably transfers and assigns to the Company: (i) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other intellectual property rights in any Assigned Inventions; and (ii) any and all “Moral Rights” (as defined below) that Employee may have in or with respect to any
Inventions.  Employee also hereby forever waives and agrees never to assert any and all Moral Rights Employee may have in or with respect to any Inventions, even after termination of Employee’s work on behalf of the Company.  “Moral Rights” means any rights to claim authorship of any Inventions, to object to or prevent the modification of any Inventions, or to withdraw from circulation or control the publication or distribution of any Inventions, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right”.


 


D. Inventions Assigned to the United States.  I agree to assign to the United States government all my right, title, and interest in and to any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any of its agencies.


 


E. Maintenance of Records.  I agree to keep and maintain adequate and current written records of all Inventions made by me (solely or jointly with others) during the term of my employment with the Company.  The records will be in the form of notes, sketches, drawings, and any other format that may be specified by the Company.  The records will be available to and remain the sole property of the Company at all times.


 


F. Patent and Copyright Registrations.  I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company shall
deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto.  I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of this Agreement.  If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by me.


 




  





  











  






5. Conflicting Employment.  I agree that, during the term of my employment with the Company, I will not engage in any other employment, occupation or consulting directly related to the business in which the Company is now involved or becomes involved during the term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.


 


6. Returning Company Documents.  I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors
or assigns, including, without limitation, those records maintained pursuant to Section 4.E.  In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit B.


 


7. Notification of New Employer.  In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer about my rights and obligations under this Agreement.


 


8. Solicitation of Employees.  I agree that for a period of twelve (12) months immediately following the termination of my relationship with the Company for any reason, whether with or without cause, I will not either directly or indirectly solicit, induce, recruit or encourage any of the Company’s employees to leave their employment or the Company’s customers to remove or reduce their business with the Company, or take away such employees or customers, or attempt to solicit, induce, recruit, encourage or take away
employees or customers of the Company, either for myself or for any other person or entity.


 


9. Conflict of Interest Guidelines.  I agree to diligently adhere to the Conflict of Interest Guidelines attached as Exhibit C hereto.


 




  





  











  






10. Representations.  I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement.  I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in confidence or in trust prior to my employment by the Company.  I hereby represent and warrant that I have not entered into, and I will not enter into, any oral or written agreement in conflict herewith.


 


11. Arbitration and Equitable Relief.


 


A. Arbitration.  In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and my receipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director, stockholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or
the termination of my employment with the Company, including any breach of this Agreement, will be subject to binding arbitration, to the fullest extent permitted by law.  Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, claims of harassment, discrimination or wrongful termination and any statutory claims. I further understand that this agreement to arbitrate also applies to any disputes that the Company may have with me.


 


B. Procedure.  I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that the neutral arbitrator will be selected in a manner consistent with its national rules for the resolution of employment disputes. I agree that the arbitrator will have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and
demurrers, prior to any arbitration hearing.  I also agree that the arbitrator will have the power to award any remedies, including attorneys' fees and costs, available under applicable law.  I understand the Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I will pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator will administer and conduct any arbitration in a manner consistent with AAA's national rules, to the extent that the AAA's national rules for the resolution of employment disputes do not conflict with applicable law.  I agree that the decision of the arbitrator will be in writing.


 


C. Remedy.  Except as provided by law and this Agreement, arbitration will be the sole, exclusive and final remedy for any dispute between me and the Company.  Accordingly, except as provided for by law and this Agreement, neither I nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration.  Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy, and the arbitrator will not order or require the Company to
adopt a policy not otherwise required by law which the Company has not adopted.


 




  





  











  






D. Availability of Injunctive Relief.  In addition to any right under applicable law that the Company or I may have to petition a court of competent jurisdiction for provisional relief, I agree that any party may also petition the arbitrator for provisional injunctive relief where either party alleges or claims a violation of the employment, confidential information, invention assignment agreement between me and the Company or any other agreement regarding trade secrets, confidential information, or non-solicitation.  I
understand that any breach or threatened breach of such an agreement will cause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance of an injunction.  In the event either party seeks injunctive relief, the prevailing party will be entitled to recover reasonable costs and attorneys' fees.


 


E. Administrative Relief.  I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state or federal administrative body.  This Agreement does, however, preclude me from pursuing court action regarding any such claim.


 


F. Voluntary Nature of Agreement.  I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else.  I further acknowledge and agree that I have carefully read this Agreement and that I have asked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I AM WAIVING MY RIGHT TO A JURY
TRIAL.  Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice before signing this Agreement.


 


12. General Provisions.


 


A. Governing Law, Consent to Personal Jurisdiction.  This Agreement will be governed by the laws of the State of Texas.  I hereby expressly consent to the personal jurisdiction of the state and federal courts located in Texas for any lawsuit filed there against me by the Company arising from or relating to this Agreement.


 


B. Entire Agreement.  This Agreement, along with the Executive Employment Agreement and Intellectual Property Purchase Agreement, sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations made during my interview(s) or relocation negotiations, whether written or oral.  No modification of or amendment to this Agreement, nor any waiver of any rights under
this Agreement, will be effective unless in writing signed by an authorized officer of the Company (other than me) and me.  Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.  This Agreement prevails and supersedes in the event there is any inconsistency between this Agreement and any other offer letter, unless the offer letter expressly provides otherwise.


 


C. Severability.  If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full force and effect.


 




  





  











  






D. Successors and Assigns.  This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.


 



	
Date: 11/30/10

	 	
Signature

	 





 









	
  

	
/s/Jason Swinford


Jason Swinford








	
  

	
Name of Employee (typed or printed)







 

















 


 


 




 




  





  











  






EXHIBIT A


 


LIST OF PRIOR INVENTIONS


 


AND ORIGINAL WORKS OF AUTHORSHIP


 



	

 


Title


 



	

 


Date


 



	

 


Identifying Number


or Brief Description


 




	  	  	  
	● 2 7/8 Motor Head Assembly	Complete	Generic Un-Patented
	● 2 1/8 Motor Head Assembly	Complete	Generic Un-Patented
	● 1 11/16 Motor Head Assembly	Complete	Generic Un-Patented
	● 1 1/4 Coil Tubing Connector	Complete	Generic Un-Patented
	● 1 1/2 Coil Tubing Connector	Complete	Generic Un-Patented
	● 1 1/4 Slip Connectors	  	Generic Un-Patented
	● 1 1/2 Slip Connectors	  	Generic Un-Patented
	● 1 3/4 Slip Connectors	  	Generic Un-Patented
	  	  	  
	  	  	  
	  	  	  
	  	  	  
	  	  	  
	  	  	  
	  	  	  
	  	  	  










               ü                No inventions or improvements


 


                                Additional Sheets Attached




 


Signature of Employee: /s/ Jason Swinford


 


Print Name of Employee: Jason Swinford


 


Date: 11/18/10









  





  











  






EXHIBIT B


 







 


TERMINATION CERTIFICATION


 


This is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to Coil Tubing Technology, Inc., a Nevada corporation, and/or its subsidiary, affiliate, partner, successor or assigns (together, the “Company”).


 


I further certify that I have complied with all the terms of the Company’s At Will Employment, Non-Competition, Confidential Information, Invention Assignment And Arbitration Agreement  signed by me, including the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with others) covered by that agreement.


 


I further agree that, in compliance with the At-Will Employment, Non-Competition, Confidential Information, Invention Assignment, and Arbitration Agreement, I will preserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or licensees.


 


I agree that for a period of twelve (12) months immediately following the termination of my relationship with the Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the Company’s employees to leave their employment or customers to remove or reduce their business with, or take away such employees or customers, or attempt to solicit, induce, recruit, encourage or take away employees or customers of the Company, either for myself or for any other person or entity.


 



 



	
Date:                                         

	 	
Signature

	 





 









	
  

	
Jason Swinford








	
  

	
Name of Employee (typed or printed)







 




 






  





  











  






EXHIBIT C


 


CONFLICT OF INTEREST GUIDELINES


 


It is the policy of Coil Tubing Technology, Inc., a Nevada corporation (the “Company”) to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest principles of business ethics.  Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company.  The following are potentially compromising situations which must be avoided.  Any exceptions must be reported to an authorized officer of the Company
(other than me) and written approval for continuation must be obtained.


 


1. Revealing confidential information to outsiders or misusing confidential information.  Unauthorized divulging of information is a violation of this policy whether or not for personal gain and whether or not harm to the Company is intended.  (The At Will Employment, Non-Competition, Confidential Information, Invention Assignment And Arbitration Agreement  elaborates on this principle and is binding).


 


2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or otherwise be improper or embarrassing to the Company.


 


3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.


 


4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or is or appears to be a personal or social involvement.


 


5. Initiating or approving any form of personal or social harassment of employees.


 


6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such investment or directorship might influence in any manner a decision or course of action of the Company.


 


7. Borrowing from or lending to employees, customers or suppliers.


 


8. Acquiring real estate of interest to the Company.


 


9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other person or entity with whom obligations of confidentiality exist.


 


10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.


 




  





  











  






11. Making any unlawful agreement with distributors with respect to prices.


 


12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.


 


13. Engaging in any conduct which is not in the best interest of the Company.


 


Each officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring problem areas to the attention of higher management for review.  Violations of this conflict of interest policy may result in discharge without warning.