EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is executed in
Tulsa,
Oklahoma to be effective as of the 29th day of April, 2007, by 3DIcon
Corporation,
an
Oklahoma corporation, (“3DIcon”), with its principal place of business located
in Tulsa, Oklahoma, and
Xxxxx Xxxxxx,
a
resident of California (“Employee”).
WHEREAS,
3DIcon
and Employee desire to enter an employment relationship on the terms and
conditions as set forth herein;
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements hereinafter contained,
and
subject to the conditions set forth herein, 3DIcon and Employee hereby agree,
subject to the terms and conditions of this Agreement, as follows:
1. Employment;
Offices; Reports and Duties.
Effective upon the Commencement Date, 3DIcon shall employ Employee in the
capacity of President and Chief Operating Officer (“COO”) of 3DIcon and Employee
hereby accepts such employment, on the terms and conditions hereinafter set
forth and such as may from time to time be established by 3DIcon’s Board of
Directors (the “Board”). Employee shall report to and be supervised by the Board
and 3DIcon’s Chief Executive Officer (“CEO”). In his capacity as President and
COO, Employee agrees to perform the duties consistent with such offices, as
may
be assigned to him from time to time by the Board or CEO. Employee
agrees to perform his duties to the best of his abilities and to devote his
full
business time, attention, skill, and energy to the performance of his duties
and
to the promotion of the success of 3DIcon. Employee shall have the authority
delegated to him by the Board. During the Term (as defined below), Employee
shall not engage in any other outside business activities or serve as a director
of any other corporation, entity or enterprise, except as set forth on the
attached Schedule “A” or as agreed in writing by the Board. While
the
headquarters of 3DIcon will be in Tulsa, Employee will be based in a 3DIcon
office in the Los Angeles, CA area..
2. Compensation.
As
compensation for the services to be rendered by Employee to 3DIcon pursuant
to
this Agreement, Employee shall receive the following compensation and other
benefits:
(a) Salary.
3DIcon
shall pay Employee an annual salary of $250,000.00, earned and payable in
twenty-four equal semi-monthly installments in arrears. Employee’s salary will
be reviewed annually.
(b) Bonus.
Employee will be eligible to receive an annual cash
bonus
based
on
the achievement of certain
performance parameters
set by
the Board for Employee and 3DIcon. The terms and conditions of such bonus
program (including the specific goals and other criteria to be achieved) will
be
determined by the Board. For calendar year 2007, Employee shall be entitled
to a
bonus, payable on or before March 15, 2008, in an amount equal to twenty-five
percent (25%) of the salary set in Section 2(a) of this Agreement, in the event
the following two conditions are met: (i) 3DIcon books revenue, as defined
by
GAAP, of $500,000 for calendar year 2007; and (ii) Employee is an employee
of
3DIcon on the date the bonus is paid. For calendar years after 2007, the Board
will determine whether a bonus will be granted and will set the bonus percentage
and eligibility criteria.
(c) Stock
Options.
Employee
is hereby granted options to purchase shares of 3DIcon’s restricted common
stock, which options shall vest and be fully exercisable on the dates and at
the
exercise prices set forth below, provided Employee is at the time of vesting
an
employee of 3DIcon:
|
On
the Commencement Date:
|
100,000
shares @ $.80/share;
|
|
On
May 1, 2008:
|
200,000
shares @ $1.00/share; and
|
|
On
May 1, 2009:
|
200,000
shares @ $1.50/share.
|
The
Option Agreement which Employee and 3DIcon shall execute in respect to this
grant shall be submitted to Employee within two weeks following the Commencement
date and shall be mutually acceptable to Employee and 3DIcon.
Employee
acknowledges that: apart from the fact that each of the exercise prices
indicated is greater than the trading value of the common stock of 3DIcon on
the
date hereof, the grants of these options by 3DIcon do not represent a particular
present or future value or percentage of the current or future outstanding
shares of 3DIcon; and that 3DIcon is not in any manner restricted by this
Employment Agreement from issuing more shares of its common stock, or other
securities related thereto, from increasing the number of shares it is
authorized to issue in a particular class of stock, or from increasing the
number of classes of stock 3DIcon may issue.
Employee
further acknowledges and represents to 3DIcon that Employee may never receive
the options with grant dates after the Commencement Date; that Employee is
an
accredited
investor
under
federal and state securities laws; that these options and the shares which
may
be purchased thereunder have not been registered with the Securities and
Exchange Commission or any other agency or department of the United States’
Government or any state government; and that the shares purchased under the
referenced options will be subject to restrictions on transfer, and will contain
a restrictive legend to such effect.
(d) Benefits.
Employee shall be eligible to participate, to the extent he may be eligible,
in
any group medical and hospitalization insurance, disability insurance, profit
sharing, retirement, life insurance, and each other employee benefit plan or
program maintained or later instituted by 3DIcon. Employee acknowledges that:
(i) participation in 3DIcon benefit programs and plans may require payroll
deductions and contributions from Employee; and (ii) such benefit programs
and
plans are subject to amendment and termination at the discretion of
3DIcon.
(e) Withholdings.
All
compensation payments to Employee shall be made subject to normal deductions
therefrom, including federal and state social security and withholding
taxes.
3. Expenses.
3DIcon
shall promptly reimburse Employee for his actual out-of-pocket expenses incurred
in carrying out his duties hereunder in the conduct of 3DIcon’s business, which
expenses shall be limited to ordinary and customary items and which shall be
supported by vouchers, receipts or similar documentation submitted in accordance
with 3DIcon’s expense reimburse policy and as required by law. Until a formal
written policy regarding reimbursement of business expenses is adopted, such
expenses must be approved in writing in advance by the CEO in order to be
reimbursable to Employee.
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4. Personal
Time Off.
During
each calendar year of employment, Employee shall be entitled to twenty business
days, in the aggregate, for vacation, sick leave and personal time off
(collectively, “PTO”). Such PTO shall be deemed earned and usable on the first
day of employment during the calendar year. PTO for calendar year 2007 shall
be
prorated from the Commencement Date. Employee shall be entitled to carry over
up
to one-half his unused PTO from any calendar year to the next calendar year;
provided, that Employee shall not be paid for any PTO which has not been used
as
of the date of his voluntary or involuntary separation from employment for
any
reason.
5. Special
Material Covenants and Representations of Employee. Each
of
the following covenants and representations of Employee: (i) is true on the
date
this Agreement is entered and throughout the employment term; (ii) constitutes
a
distinct, material inducement to 3DIcon to employ Employee; and (ii) is binding
and enforceable on Employee despite any allegation by Employee that 3DIcon
has
failed to meet any of its obligations hereunder:
(a) Non-Use
and Non-Disclosure of Confidential Information.
Employee acknowledges that, as a result of his employment by 3DIcon, he will
be
learning, making use of, and adding to, 3DIcon’s Confidential Information (as
defined below). Except as required in the performance of Employee’s duties under
this Agreement or except in those instances in which Employee reasonably
determines, in good faith, that use or disclosure of Confidential Information
is
in the best interests of 3DIcon, Employee will not use or disclose to third
parties, directly or indirectly, any Confidential Information, either during
his
employment or after his termination of employment for any reason. In all
instances when a disclosure by Employee of Confidential Information is
contemplated, no such disclosure shall be made unless Employee obtains from
the
intended recipient of such information a Confidentiality Agreement in favor
of
3DIcon. Notwithstanding the foregoing, Employee will be permitted to disclose
any Confidential Information to the extent required by validly issued legal
process or court order; provided, that not less than ten days before such
disclosure is made, Employee shall notify 3DIcon in writing of the demand for
disclosure.
As
used
herein, “Confidential Information” means information, including without
limitation, any business plan, financial records, contracts, compilation,
program, device, method, technique or process, technology, hardware, software,
intellectual property, ideas, inventions, enhancements or derivatives of the
intellectual property, ideas or inventions (whether or not patentable or
patented, copyrightable or copyrighted, registrable as a tradename of registered
as such) licenses, contracts, customer and vendor lists, regardless of how
stored or communicated, that: (i) derives independent economic value, actual
or
potential, in part from not being generally known to, and not being readily
ascertainable by proper means, by other persons who can obtain economic value
from its disclosure or use; (ii) is the subject of a contractual obligation
of
3DIcon to maintain its secrecy; (iii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy; (iv) is wholly
or
partly owned by, or is licensed to, or by, 3DIcon or its affiliates; or (v)
is
confidential, proprietary or competitively sensitive. For purposes of this
Agreement, “Confidential Information” includes both information disclosed to
Employee by 3DIcon or its affiliates and information developed by Employee
in
the course and as part
of his
employment with 3DIcon or any of its affiliates. The parties agree that as
used
herein, “Confidential Information” shall not include the following: (I)
information that at the time of disclosure is in the public domain; (II)
information that was in Employee’s possession at the time of disclosure and was
not acquired, directly or indirectly, from 3DIcon or its affiliates; and (III)
the information that corresponds in substance to information furnished to
Employee by others as a matter of right without restriction on
disclosure.
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The
types
and categories of information that 3DIcon considers to be its Confidential
Information include without limitation the following information that Employee
knows or has reason to know that 3DIcon or its affiliates intends or expects
the
secrecy of such information to be maintained, and as to which 3DIcon or its
affiliates has made reasonable efforts to maintain secrecy, including: (A)
non-public information concerning or resulting from research and development
work performed, sponsored or acquired by 3DIcon or its affiliates, including
without limitation research and development work performed by the University
of
Oklahoma; (B) non-public information concerning 3DIcon’s and its affiliates’
management, financial condition, financial operations, charter activities,
marketing activities, sales and marketing strategies, customer information,
channels of distribution, pricing policies and strategies and business plans;
and (C) non-public information acquired or compiled by 3DIcon or its affiliates
concerning actual or potential customers and competitors.
3DIcon
may also advise Employee from time to time of restrictions upon the use or
disclosure of specified information that has been licensed or otherwise
disclosed to 3DIcon by third parties pursuant to license or confidentiality
or
non-disclosure agreements that contain restrictions upon the use or disclosure
of such information. Employee agrees to abide by the restrictions upon use
or
disclosure contained in such agreements to the extent such restrictions do
not
conflict with this Agreement.
(b) Employment
will not Violate Employee’s Agreements.
(i)
Employee
represents to 3DIcon that his employment with 3DIcon will not require the use
of
any confidential or proprietary information belonging to Employee or others
or
the violation of any confidential relationship with any third party or
contravene any agreement, obligation or commitment to which Employee is or
may
be a party with any prior employer, principal, entity or person with respect
to
which Employee has provided services in the past or with which Employee
otherwise has or had a relationship.
(ii) Employee
represents to 3DIcon that neither Employee, nor any entity in which Employee
owns or has owned an interest, is a party to any agreement by which Employee
or
said entity is bound not to compete with a third party or is prohibited from
using information which Employee will be required to use in the course of his
Employment with 3DIcon under this Agreement, or is or may be a party with any
prior employer, principal, entity or person with respect to which Employee
has
provided services in the past or with which Employee otherwise has or had a
relationship.
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(c) Employee
Indemnity.
Employee
hereby agrees to indemnify 3DIcon, its joint venturers, directors, officers,
employees and agents against, and hold said persons harmless from, any and
all
losses, expenses, costs, fees (including attorneys’ fees), liabilities, claims,
causes and judgments of any nature or amount arising from or related to the
alleged violation of any of the covenants in this Sections 5(c) of this
Agreement or based upon allegations which would make any of Employee’s
representations to 3DIcon in said sections untrue.
(d) Nonsolicitation
of Customers.
During
Employee’s employment hereunder and for a period of two years after Employee’s
separation employment for any reason, voluntarily or involuntarily, ,
Employee shall not solicit 3DIcon’s or its affiliates’ customers for the purpose
of diverting any business of 3DIcon or its affiliates to a competitor of 3DIcon
or its affiliates or for the purpose of having such customer cease to conduct
business or not renew business with 3DIcon or its affiliates. For purposes
of
this Section 5(d), “customer” shall mean those individuals or entities with whom
or which 3DIcon or its affiliates or licensees had provided products, services
or licenses, or been in negotiations
for the provision of products, services or licenses, within the twelve (12)
months preceding Employee’s separation from employment with 3DIcon.
(e) Nonsolicitation
of Personnel.
During
Employee’s employment hereunder and for a period of two years after Employee’s
separation employment for any reason, voluntarily or involuntarily, Employee
shall not, directly or indirectly, solicit, employ or engage, or have any
interest in or relationship with, any entity or person who solicits, employs
or
engages, any employee, consultant, independent contractor or agent of 3DIcon,
any of its affiliates, any university or entity contracted by 3DIcon to perform
research or product development, or any customer, as defined above, of 3DIcon
for the purpose of competing with 3DIcon, offering services, products or
licenses of the type offered by 3DIcon or which compete with those offered
by
3DIcon at any time during said period.
6. Property
of 3DIcon; Assignment of Employee’s Inventions .
All
Confidential Information, documents, encoded media, and other tangible items
provided to Employee by 3DIcon, or its affiliates, or prepared, generated or
created by Employee or others in the performance of Employee’s duties under this
Agreement are and shall remain the property of 3DIcon, or its affiliates. Upon
termination of Employee’s employment with 3DIcon, Employee will promptly deliver
to 3DIcon all such Confidential Information, documents, media and other items
in
his possession, custody or control, including all complete or partial copies,
recordings, abstracts, notes or reproductions of any kind made from or about
such documents, media, items or information contained therein, regardless of
how
the same may be stored.
All
intellectual property, ideas, inventions, enhancements or derivatives of the
intellectual property, ideas or inventions of others (whether or not patentable
or patented, copyrightable or copyrighted, registrable as a tradename of
registered as such) developed by Employee (collectively, “Employee Inventions”)
during his Employment and, to the extent an Employee Invention relates in any
manner to the business conducted by 3DIcon during Employee’s employment under
this Agreement, for a period of five years after Employee’s separation for any
reason, voluntarily or involuntarily, from employment with 3DIcon, regardless
of
how stored, or where or when the same was developed, are the property of 3DIcon
and, whether now existing of later created, are hereby assigned by Employee
to
3DIcon.
Upon
termination of Employee’s employment with 3DIcon, Employee will promptly deliver
to 3DIcon all Confidential Information, Employee Inventions, documents, memory,
media and other items in his possession, custody or control, including all
complete or partial copies, recordings, abstracts, notes or reproductions of
any
kind made from or which relate in any manner to any Employee Invention,
regardless of how the same may be stored.
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Employee
represents to 3DIcon that Employee does not presently directly or indirectly
own
or hold any right, title interest or claim in any patent, copyright, trade
name
or service xxxx, or pending application therefore, except as shown on the
attached Schedule “B”. Employee does not now, and will not at any time, own nor
make any claim of any right, title or interest in any: (i) Employee Invention;
or (ii) any patent, copyright, trademark, service xxxx, trade name or other
intellectual property held, generated or obtained by or for Employee or 3DIcon
or any university, entity or person engaged by 3DIcon to perform research or
any
other service for 3DIcon; or (iii) licensed to or by 3DIcon; or (iv) used by
3DIcon or its affiliates in its business.
7. Term,
Termination; Termination; Severance.
(a) Term.
Employee’s employment under this Agreement shall commence on May
1,
2007 (the “Commencement Date”), and shall continue for a period of one year from
the Commencement Date hereof, unless sooner terminated as provided herein (the
“Initial Term”).
Notwithstanding the foregoing, upon the stated expiration of the Initial Term,
and each anniversary of such date, the Initial Term (and any extended Initial
Term) will automatically extend for one-year periods unless either party hereto
provides the other party with at least thirty days advance written notice of
its
decision not to extend the applicable Term (hereinafter, the Initial Term,
together with any and all one-year extensions, will be referenced as the
“Term”).
(b) Termination
and Effect of Termination.
The
employment of Employee under this Agreement may be terminated prior to the
stated expiration of the Term set forth in Section 7(a) above in accordance
with
the following provisions:
(i) Death.
Immediately, in the event of a termination of Employee’s employment due to the
death of Employee, 3DIcon shall pay to Employee’s surviving spouse, or if none,
to Employee’s estate or legal representative, in a lump-sum within ten days of
the date of death, (A) any accrued but unpaid base salary provided for in
Section 2(a) above hereof for services rendered through the date of death (B)
any accrued but unpaid expenses required to be reimbursed under Section 3 above,
(C) any unused PTO accrued under Section 4 above as of the date of death, and
(D) any other amounts owing, but still unpaid, to Employee (for example, a
bonus
declared due and owing for a prior year). Employee’s surviving spouse, or if
none, estate will also be provided with any accrued and vested benefits to
which
Employee may have be entitled, unless otherwise provided in any beneficiary
designation made by Employee in regard to an employee benefit program or plan.
(The payment amounts and accrued and vested benefits provided in this sub-clause
(i) are the referenced herein as the “Accrued Obligations”).
(ii) Disability.
Immediately or at a later date, in the event of Employee’s disability, upon
thirty days advance written notice to Employee, and within ten (10) days of
such
termination of employment, Employee shall be paid the Accrued
Obligations.
(iii) Voluntarily
by Employee or 3DIcon without Cause.
By
Employee or by the Board of 3DIcon upon thirty days advance written notice
to
the other party, for no reason or for any reason other than “Cause.” In the
event of a termination
of Employee’s employment under this Section, 3DIcon shall, within ten days of
the date of termination of employment, pay Employee in a lump-sum the Accrued
Obligations.
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(iv) By
3DIcon for Cause.
Effective immediately, by the Board of 3DIcon for “Cause” at any time upon
written notice to Employee. For purposes of this Agreement, “Cause” means: (I)
the commission by Employee of gross misconduct or any fraud, malfeasance, theft
or embezzlement against 3DIcon; (II) a material breach by Employee of any of
his
obligations under this Agreement or material violation by Employee of any rules
or policies of 3DIcon; or (III) Employee’s commission of any felony (other than
felonies relating solely to vehicle speeding incidents) or act involving moral
turpitude. In
the
event of a termination
of the Employee’s employment by 3DIcon with Cause, 3DIcon shall pay, in a
lump-sum but subject to offset for amounts due or alleged to be due to 3DIcon,
within ten days of the date of termination of the employment, the Accrued
Obligations.
(v) By
Employee with Good Reason.
By
Employee, upon written notice to 3DIcon within thirty (30) days following the
occurrence of any of the following, which shall consitute “Good Reason.”.
For
purposes of this Agreement, “Good Reason” means: (I) any reduction by 3DIcon of
Employee’s base salary without his consent; (II) 3DIcon’s material diminution of
Employee’s title, or duties, or interference with his ability to carry out his
duties; (III) 3DIcon’s assignment to the Employee of duties that are
inconsistent with the duties stated in this Agreement; (IV) a breach by 3DIcon
of any material provision of this Agreement, provided that in all such cases;
or
(V) a “change of control”, defined for purposes of this Agreement as any of the
following: (aa) the sale, lease or other disposition of all of substantially
all
of the assets of 3DIcon, other than in the ordinary course of business; (bb)
an
acquisition of DIcon by an entity not owned or controlled the management of
3DIcon, whether by consolidation, merger or other reorganization (with the
exception of a merger or consolidation effected solely to change the domicile
of
3DIcon), whereby more than fifty percent (50%) of the outstanding voting shares
of 3DIcon are held by persons or entities which did not hold voting shares
of
3DIcon before said transaction. 3DIcon has been provided with written notice
and
not less than fifteen days opportunity to cure. In the event of a termination
of
Employee’s employment by him with Good Reason, 3DIcon shall pay to Employee, in
a lump-sum within ten days of the date of termination, the Accrued Obligations.
(c) Severance
Pay. 3DIcon
shall pay Employee severance pay only under the terms and conditions of this
Section 7(c).
(i) In
the
event Employee separates from employment with 3DIcon by Employee’s voluntary
notice under Section 7(iii) or by 3DIcon’s decision under Section 7(iv),
Employee shall be entitled to no severance pay or benefits
hereunder.
(ii) In
the
event Employee separates from employment with 3DIcon under Sections 7(i) or
7(ii), or by 3DIcon’s voluntary notice under Section 7(iii) or by Employee’s
timely decision due to the actual occurrence of one or more of the grounds
stated in Section 7(v), Employee shall, upon execution of 3DIcon’s standard form
separation agreement (which includes but is not limited to a General Release
of
3DIcon and its officers, directors and agents, from any claims you might have
against any of them), be entitled to severance pay hereunder as follows: during
a period equal to the greater of the number of months remaining on the one-year
employment Term then in effect or six months, 3DIcon shall pay Employee an
amount per month, on 3DIcon’s regular paydays and subject to mandatory
withholdings, equal to Employee’s regular monthly salary at the time of
separation.
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8. Resignation
From All Positions Upon Notice of Termination.
In the
event of the termination of Employee’s employment other than due to death,
Employee hereby resigns from all other positions held by him with 3DIcon,
including without limitation any position as a director, officer, agent, trustee
or consultant of 3DIcon or any affiliate of 3DIcon, effective on the date of
notice of termination of employment by 3DIcon or Employee. Neither stock
ownership nor the holding of an office at 3DIcon shall constitute a right to
employment hereunder.
9. Covenant
Against Competition.
Employee acknowledges that the services he is to render are of a special and
unusual character with a unique value to 3DIcon, the loss of which cannot
adequately be compensated by damages in an action at law. In view of the unique
value to 3DIcon of the services of Employee and because of the Confidential
Information to be obtained by or disclosed to Employee, as set forth above,
Employee covenants and agrees that during Employee’s employment and for a period
of two years after termination of his employment for any reason, voluntarily
or
involuntarily, he will not, except as otherwise authorized by this Agreement,
compete with 3DIcon or any affiliate of 3DIcon.
For
purposes of this Section 9: (i) the term “compete” means engaging (other than as
a passive investor) in the business of three dimensional image capture,
communication, transmission or display in a market which directly competes
with
the products, services or licenses offered by 3DIcon or its affiliates,
including without limitation, as a proprietor, partner, active investor,
shareholder, director, officer, employee, consultant, independent contractor,
or
otherwise; provided, that Employee may work for a branch or division of another
entity so long as the employment responsibilities or activities of Employee
do
not compete with 3DIcon or its products, services or licenses.
10.
D&O Insurance and Indemnification.
3DIcon
shall indemnify Employee, and hold him harmless, to the maximum extent permitted
under law, if he is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of 3DIcon, solely by reason of the fact that Employee is or was a
director, officer, employee or agent of 3DIcon, or is or was serving at the
request of 3DIcon as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
all
expenses, including attorneys’ fees, judgments, fines and amounts paid in
settlement. In addition, 3DIcon will, within sixty days following the
Commencement Date, secure comprehensive directors and officers’ liability
insurance with a reputable company for the benefit of Employee.
11. Additional
Important Terms and Conditions of Employment.
(a) Waiver.
A
party’s failure to insist on compliance or enforcement of any provision of this
Agreement shall not affect the validity or enforceability or constitute a waiver
of future enforcement of that provision or of any other provision of this
Agreement by that party or any other party.
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(b) Governing
Law.
This
Agreement shall in all respects be subject to, and governed by, the laws of
the
State of Oklahoma without giving effect to its conflict of laws
principles.
(c)
Severability.
If for
any reason any Section, term or provision of this Agreement is held to be
invalid or unenforceable for any reason, such invalidity or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed and enforced as if such provision had not been included herein and
all
other valid provisions herein shall remain in full force and
effect.
(d) Notice.
Any and
all notices and other communications required or permitted herein shall be
in
writing and deemed delivered if delivered personally, or sent by recognized
overnight courier or registered or certified mail to 3DIcon at its principal
place of business, or to Employee at the address hereinafter set forth following
Employee’s signature, or at such other address or addresses as either party may
hereafter designate in writing to the other, except that such notice of change
of address will only be effective upon receipt.
(e) Amendments.
This
Agreement may only be amended in a written agreement expressly stating that
it
is an amendment to this Agreement signed by 3DIcon and Employee. This Agreement
may not be amended by a course of conduct of the parties.
(f) Entire
Agreement.
This
Agreement contains the entire agreement and understanding by and between
Employee and 3DIcon with respect to the employment of Employee with 3DIcon,
and
no prior representations, promises, agreements, or understandings, written
or
oral, with respect to such employment, which are not expressly set forth in
this
Agreement, shall be of any force or effect.
(g) Burden
and Benefit.
This
Agreement may not be assigned by Employee. This Agreement, together with any
amendments hereto, shall be binding upon 3DIcon’s successors and assigns and
will inure to the benefit of Employee’s estate, heirs and personal
representatives.
(h) Headings.
The
various headings in this Agreement are inserted for convenience only and are
not
part of the Agreement.
(i) Arbitration
and Injunctive Relief by 3DIcon.
In the
event that any dispute arises among the parties hereto, all parties agree to
waive their rights to alternative remedies and, by execution of this Agreement,
each party irrevocably and unconditionally submits any differences or disputes
existing among them which may arise hereunder to binding confidential private
arbitration to be conducted before one arbitrator experienced in commercial
matters (or otherwise acceptable to the parties) pursuant to the rules of the
American Arbitration Association (“AAA”) for the arbitration of commercial
dispoutes, in accordance with the comprehensive rules and procedures of AAA,
including the internal appeal process provided for in Rule 34 of the AAA rules
with respect to any initial judgment rendered in an arbitration. Any such
arbitration proceeding shall take place in Tulsa, Oklahoma before a single
arbitrator (rather than a panel of arbitrators). All such controversies, claims
or disputes shall be settled in this matter in lieu of any action at law or
equity; provided,
however,
that
nothing in this section shall be construed as precluding 3DIcon from bringing
a
claim for injunctive relief or other equitable relief. The parties agree that
the arbitrator shall have no authority to award any punitive or exemplary
damages and waive, to the full extent permitted by law, any right to recover
such damages in such arbitration. Each party shall each bear their respective
costs (including arbitrator’s, experts’ and attorney’s fees and expenses), and
there shall be no award of such fees, expenses or costs. Judgment upon the
final
award rendered by such arbitrator, after giving effect to the AAA internal
appeal process, may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, the parties shall keep confidential the existence
of the claim, controversy or dispute from third parties (other than the
arbitrator), and the determination thereof, unless otherwise required by law
or
necessary for the business of 3DIcon. The parties agree to abide by all
decisions and awards rendered in such proceedings and to waive the appeal
thereof to the courts. Notwithstanding any term herein to the contrary, 3DIcon
shall be entitled to seek full injunctive and equitable relief in a court
proceeding as a result of any alleged violation by Employee of the terms of
this
Agreement, and Employee hereby consents to personal jurisdiction in any state
or
federal court located in the Tulsa County, in the State of Oklahoma for the
purpose of any such proceeding.
9
If
for any reason this arbitration clause becomes not applicable, then each party,
to the fullest extent permitted by applicable law, hereby irrevocably waives
all
rights to trial by jury as to any issue in any action, proceeding, or
counterclaim arising out of or relating to this Agreement , Employee’s
employment or any other matter involving the parties
hereto.
Employee
agrees that the provisions of Sections 5 and 6 of this Agreement are reasonable
and necessary to protect the goodwill, confidential information and interests
of
3DIcon and consents to the entry of injunctive and such other equitable relief
as may be appropriate (without the posting of a bond or other security) in
the
event of his breach thereof.
10
IN
WITNESS WHEREOF,
3DIcon
and the Employee have duly executed this Agreement to be effective as of the
day
and year first above written.
| 3DICON CORPORPATION | ||
| |
|
|
| By: |
/s/
Xxxxxx Xxxxxxx,
|
|
|
Xxxxxx
Xxxxxxx,
Chairman
and CEO
|
||
| EMPLOYEE: | ||
| |
|
|
| /s/ Xxxxx Xxxxxx | ||
|
Xxxxx
Xxxxxx
|
||
11
SCHEDULE
A:
OTHER
BUSINESS ACTIVITIES, BOARDS
Employee
shall conclude operations of Nststep Consulting, LLC, within 30 days following
the Commencement Date; provided, that such activities shall not interfere with
Employee’s performance of his duties under this Agreement.
SCHEDULE
B:
PATENTS,
COPYRIGHTS, TRADEMARKS, SERVICE MARKS, TRADENAMES AND OTHER INTELLECTUAL
PROPERTY OWNED BY EMPLOYEE ON THE COMMENCEMENT DATE
Employee
neither owns nor holds any interest or claim in any intellectual property,
incluing without limitation patents, trademarks, service marks, copyrights,
trade names, or applications for the same, with the sole exception of the
tradename, Nxtstep Consulting, LLC.
12
