OTISH MOUNTAIN DIAMOND COMPANY
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made between
Otish Mountain Diamond Company, a Nevada corporation and its affiliated
companies (collectively referred to as the "Company"), and Massimiliano Pozzoni
("Executive"). Unless otherwise indicated, all references to Sections are to
Sections in this Agreement. This Agreement is effective as of the "Effective
Date" set forth in Section 14 below.
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of Executive, and
Executive desires to be employed by the Company upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as of the date hereof as follows:
1. Employment. The Company hereby agrees to employ Executive, and Executive
hereby agrees to serve the Company, as its Chief Executive Officer and President
("Employment") and as a Director for a period of one (1) year beginning on the
Effective Date. This Agreement is renewable upon the mutual written consent of
the parties.
2. Scope of Employment.
(a) During the Employment, Executive will serve as Chief Executive Officer
and President. In that connection, Executive will (i) devote his attention, and
energies to the business of the Company and will diligently and to the best of
his ability perform all duties incident to his employment hereunder including,
but not limited to, carrying out the exploration program and securing financing;
(ii) use his best efforts to promote the interests and goodwill of the Company;
and (iii) perform such other duties commensurate with his office as the Board of
Directors of the Company may from time-to-time assign to him.
(b) Section 2(a) shall not be construed as preventing Executive from (i)
serving on corporate, civic or charitable boards or committees, or (ii) making
investments in other businesses or enterprises; provided that in no event shall
any such service, business activity or investment require the provision of
substantial services by Executive to the operations or the affairs of such
businesses or enterprises such that the provision thereof would interfere in any
respect with the performance of Executive's duties hereunder; and subject to
Section 6.
3. Compensation and Benefits During Employment. During the Employment, the
Company shall provide compensation to Executive as follows.
(a) The Company shall pay Executive $5,000 per month in equal semi-monthly
installments. Executive shall be responsible for the payment of all taxes to the
Internal Revenue Service as well as any and other taxes payable in the United
States. Executive indemnifies the Company with respect to the payment of any and
all taxes owing and due from Executive's compensation.
(b) The Company shall reimburse Executive for business expenses incurred by
Executive in connection with the Employment in accordance with the Company's
then-current policies.
(c) Executive will be entitled to participate in any health insurance or
other employee benefit plan which the Company may adopt in the future.
(d) Executive will be entitled to four (4) weeks of vacation per year.
(e) Executive will be entitled to participate in any incentive program or
discretionary bonus program of the Company which may be implemented in the
future by the Board of Directors.
(f) Executive will be entitled to participate in any stock option plan of
the Company which may be approved in the future by the Board of Directors.
(g) The Company will provide Executive a housing allowance of $3,000 per
month.
(h) The Company will pay or reimburse Executive for an automobile used
primarily in business travel by Executive on behalf of the Company. Executive
will be the registered title owner of the automobile in the Province of British
Columbia. Massimiliano Pozzoni hereby agrees to hold the automobile in trust,
for and on behalf of, Otish Mountain Diamond Company, Inc. until the earlier of
Termination as provided in section 11, below, the day on which the Company's
Board of Directors either adopts a plan of merger, liquidation, reorganization,
dissolution or winding up or approves the sale of substantially all of the
Company's assets, or four (4) years after the Effective Date, at which time Xx.
Xxxxxxx shall either transfer the automobile, or pay the fair market value of
the automobile at such time, to Otish Mountain Diamond Company.
Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by
Executive in good faith and in the best interests of the Company and thus shall
not be deemed grounds for Termination for Cause.
4. Confidential Information.
(a) Executive acknowledges that the law provides the Company with
protection for its trade secrets and confidential information. Executive will
not disclose, directly or indirectly, any of the Company's confidential business
information or confidential technical information to anyone without
authorization from the Company's management. Executive will not use any of the
Company's confidential business information or confidential technical
information in any way, either during or after the Employment with the Company,
except as required in the course of the Employment.
(b) Executive will strictly adhere to any obligations that may be owed
to former employers insofar as Executive's use or disclosure of their
confidential information is concerned.
(c) Information will not be deemed part of the confidential
information restricted by this Section 4 if Executive can show that: (i) the
information was in Executive's possession or within Executive's knowledge before
the Company disclosed it to Executive; (ii) the information was or became
generally known to those who could take economic advantage of it; (iii)
Executive obtained the information from a party having the right to disclose it
to Executive without violation of any obligation to the Company, or (iv)
Executive is required to disclose the information pursuant to legal process
(e.g., a subpoena), provided that Executive notifies the Company immediately
upon receiving or becoming aware of the legal process in question. No
combination of information will be deemed to be within any of the four
exceptions in the previous sentence, however, whether or not the component parts
of the combination are within one or more exceptions, unless the combination
itself and its economic value and principles of operation are themselves within
such an exception or exceptions.
(d) All originals and all copies of any drawings, blueprints, manuals,
reports, computer programs or data, notebooks, notes, photographs, and all other
recorded, written, or printed matter relating to research, manufacturing
operations, or business of the Company made or received by Executive during the
Employment are the property of the Company. Upon Termination of the Employment,
whether or not for Cause, Executive will immediately deliver to the Company all
property of the Company which may still be in Executive's possession. Executive
will not remove or assist in removing such property from the Company's premises
under any circumstances, either during the Employment or after Termination
thereof, except as authorized by the Company's management.
5. Ownership of Intellectual Property.
(a) The Company will be the sole owner of any and all of Executive's
Inventions that are related to the Company's business, as defined in more detail
below.
(b) For purposes of this Agreement, "Inventions" means all inventions,
discoveries, and improvements (including, without limitation, any information
relating to manufacturing techniques, processes, formulas, developments or
experimental work, work in progress, or business trade secrets), along with any
and all other work product relating thereto.
(c) An Invention is "related to the Company's business" ("Company-Related
Invention") if it is made, conceived, or reduced to practice by Executive (in
whole or in part, either alone or jointly with others, whether or not during
regular working hours), whether or not potentially patentable or copyrightable
in the U.S. or elsewhere, and it either: (i) involves equipment, supplies,
facilities, or trade secret information of the Company; (ii) involves the time
for which Executive was or is to be compensated by the Company; (iii) relates to
the business of the Company or to its actual or demonstrably anticipated
research and development; or (iv) results, in whole or in part, from work
performed by Executive for the Company.
(d) Executive will promptly disclose to the Company, or its nominee(s),
without additional compensation, all Company-Related Inventions.
(e) Executive will assist the Company, at the Company's expense, in
protecting any intellectual property rights that may be available anywhere in
the world for such Company-Related Inventions, including signing U.S. or foreign
patent applications, oaths or declarations relating to such patent applications,
and similar documents.
(f) To the extent that any Company-Related Invention is eligible under
applicable law to be deemed a "work made for hire," or otherwise to be owned
automatically by the Company, it will be deemed as such, without additional
compensation to Executive. In some jurisdictions, Executive may have a right,
title, or interest ("Right," including without limitation all right, title, and
interest arising under patent law, copyright law, trade-secret law,
semiconductor chip protection law, or otherwise, anywhere in the world,
including the right to xxx for present or past infringement) in certain
Company-Related Inventions that cannot be automatically owned by the Company. In
that case, if applicable law permits Executive to assign Executive's Right(s) in
future Company-Related Inventions at this time, then Executive hereby assigns
any and all such Right(s) to the Company, without additional compensation to
Executive; if not, then Executive agrees to assign any and all such Right(s) in
any such future Company-Related Inventions to the Company or its nominee(s) upon
request, without additional compensation to Executive.
(g) To the extent that Executive retains any so-called "moral rights" or
similar rights in a Company-Related Invention as a matter of law, Executive
authorizes the Company or its designee to make any changes it desires to any
part of that Company-Related Invention; to combine any such part with other
materials; and to withhold Executive's identity in connection with any business
operations relating to that Company-Related Invention; in any case without
additional compensation to Executive.
6. Non-competition. As a condition to, and in consideration of, the
Company's entering into this Agreement, and giving Executive access to certain
confidential and proprietary information, which Executive 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 6 as
applied to Executive and other employees similarly situated to Executive,
Executive acknowledges and hereby agrees as follows:
(a) that Executive is and will be engaged in the business of the Company;
(b) that Executive has occupied a position of trust and confidence with the
Company prior to the Effective Date, and that during such period and the period
of Executive's Employment under this Agreement, Executive has, and 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 is based on the following: (i) the substantial time, money and effort
expended and to be expended by the Company in developing technical designs,
computer program source codes, marketing plans and similar confidential
information; (ii) the fact that Executive 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,
Executive 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 and ending one (1)
month following Termination as provided in Section 11, Executive 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 the manufacturing, distribution or sale of (A)
products manufactured, distributed, sold or license by the Company at the time
of Termination; or (B) products proposed at the time of Termination to be
manufactured, distributed, sold or licensed by the Company, anywhere in North
America (the "Territory"); provided, however
(e) that nothing contained herein shall be construed to prevent Executive
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 Executive devoting time to the management or
operations of such corporation and Executive is not otherwise involved in the
business of such corporation; and if (ii) Executive and his associates (as such
term is defined in Regulation 14(A) promulgated under the Securities Exchange
Act of 1934, as in effect on the Effective Date), collectively, do not own,
directly or indirectly, more than an aggregate of two (2) percent of the
outstanding stock or securities of such corporation.
7. Legal Fees and Expenses. In the event of a lawsuit, arbitration, or
other dispute-resolution proceeding between the Company and Executive arising
out of or relating to this Agreement, the prevailing party, in the proceeding as
a whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys' fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
8. Successors.
(a) This Agreement shall inure to the benefit of and be binding upon (i)
the Company and its successors and assigns and (ii) Executive and Executive's
heirs and legal representatives, except that Executive's duties and
responsibilities under this Agreement are of a personal nature and will not be
assignable or delegable in whole or in part.
(b) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "the Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
9. Arbitration.
(a) Except as set forth in paragraph (b) of this Section 9 or to the extent
prohibited by applicable law, any dispute, controversy or claim arising out of
or relating to this Agreement will be submitted to binding arbitration before a
single arbitrator in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association in effect on the
date of the demand for arbitration. The arbitration shall take place before a
single arbitrator, who will preferably but not necessarily be a lawyer but who
shall have at least five years' experience in working in or with mining
companies. Unless otherwise agreed by the parties, the arbitration shall take
place in the city in which Executive's principal office space is located at the
time of the dispute or was located at the time of Termination of the Employment
(if applicable). The arbitrator is hereby directed to take all reasonable
measures not inconsistent with the interests of justice to expedite, and
minimize the cost of, the arbitration proceedings.
(b) To protect inventions, trade secrets, or other confidential information
of Section 4, and/or to enforce the non-competition provisions of Section 6, the
Company may seek temporary, preliminary, and/or permanent injunctive relief in a
court of competent jurisdiction, in each case, without waiving its right to
arbitration.
(c) At the request of either party, the arbitrator may take any interim
measures s/he deems necessary with respect to the subject matter of the dispute,
including measures for the preservation of confidentiality set forth in this
Agreement.
(d) Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction.
10. Indemnification.
(a) Company shall to the full extent permitted by law or as set forth in
the Articles of Incorporation, and any future amendments, and the Bylaws of the
Company, indemnify, defend and hold harmless Executive from and against any and
all claims, demands, liabilities, damages, losses and expenses (including
attorney's fees, court costs and disbursements) arising out of the performance
of duties hereunder except in the case of willful misconduct.
(b) Executive shall indemnify the Company with respect to the payment of
any and all taxes owed under this Agreement.
11. Termination
This Agreement and the employment relationship created hereby will
terminate (i) upon the death or disability of Executive under Section 11 (a) or
11(b); (ii) with cause under Section 11 (c); (iii) for good reason under Section
11 (d); or (iv) without cause under Section 11(e).
(a) Disability. Company shall have the right to terminate the employment of
Executive under this Agreement for disability in the event Executive suffers an
injury, illness, or incapacity of such character as to substantially disable him
from performing his duties without reasonable accommodation by Executive
hereunder for a period of more than thirty (30) consecutive days upon Company
giving at least thirty (30) days written notice of termination.
(b) Death. This agreement will terminate on the Death of the Executive.
(c) With Cause. Company may terminate this Agreement at any time because of
(i) Executive's material breach of any term of the Agreement, (ii) the
determination by the Board of Directors in the exercise of its reasonable
judgment that Executive has committed an act or acts constituting a felony or
other crime involving moral turpitude, dishonesty or theft or fraud; or (iii)
Executive's negligence in the performance of his duties hereunder.
(d) Good Reason. The Executive may terminate his employment for "Good
Reason" by giving Company ten (10) days written notice if:
(i) he is assigned, without his express written consent, any duties
materially inconsistent with his positions, duties, responsibilities, or
status with Company as of the date hereof, or a change in his reporting
responsibilities or titles as in effect as of the date hereof;
(ii) his compensation is reduced; or
(iii) Company does not pay any material amount of compensation due
hereunder and then fails either to pay such amount within the ten (10) day
notice period required for Termination hereunder or to contest in good
faith such notice. Further, if such contest is not resolved within thirty
(30) days, Company shall submit such dispute to arbitration under Section
9.
(e) Without Cause. Company may terminate this Agreement without cause.
12. Obligations of Company Upon Termination.
(a) In the event of the termination of Executive's employment pursuant to
Section 11 (a), (b) or (c), Executive will be entitled only to the compensation
earned by him hereunder as of the date of such termination (plus life insurance
or disability benefits).
(b) In the event of the termination of Executive's employment pursuant to
Section 11 (d) or (e), Executive will be entitled to receive as severance pay,
an amount equal to the monthly compensation provided for in Section 3(a)
multiplied by a factor of three (3) in addition to all payments of salary earned
through the date of termination in one lump sum.
13. Other Provisions.
(a) All notices and statements with respect to this Agreement must be in
writing. Notices to the Company shall be delivered to the Chairman of the Board
or any vice president of the Company. Notices to Executive may be delivered to
Executive in person or sent to Executive's then-current home address as
indicated in the Company's records.
(b) This Agreement sets forth the entire agreement of the parties
concerning the subjects covered herein; there are no promises, understandings,
representations, or warranties of any kind concerning those subjects except as
expressly set forth in this Agreement.
(c) Any modification of this Agreement must be in writing and signed by all
parties; any attempt to modify this Agreement, orally or in writing, not
executed by all parties will be void.
(d) If any provision of this Agreement, or its application to anyone or
under any circumstances, is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability will not affect any other
provision or application of this Agreement which can be given effect without the
invalid or unenforceable provision or application and will not invalidate or
render unenforceable such provision or application in any other jurisdiction.
(e) This Agreement will be governed and interpreted under the laws of the
United States of America and the laws of the State of New York as applied to
contracts made and carried out in New York by residents of New York.
(f) No failure on the part of any party to enforce any provisions of this
Agreement will act as a waiver of the right to enforce that provision.
(g) Section headings are for convenience only and shall not define or limit
the provisions of this Agreement.
(h) This Agreement may be executed in several counterparts, each of which
is an original. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for any of the other counterparts.
A copy of this Agreement signed by one party and faxed to another party shall be
deemed to have been executed and delivered by the signing party as though an
original. A photocopy of this Agreement shall be effective as an original for
all purposes.
14. Summary of Terms of Employment
Effective Date September 1st, 2003
Term One year, renewable
Office / Position Chief Executive Officer and President
Salary $5,000 per month
This Agreement contains provisions requiring binding arbitration of
disputes. By signing this Agreement, Executive acknowledges that he or she (i)
has read and understood the entire Agreement; (ii) has received a copy of it
(iii) has had the opportunity to ask questions and consult counsel or other
advisors about its terms; and (iv) agrees to be bound by it.
Executed to be effective as of the Effective Date.
Otish Mountain Diamond Company, by: Executive:
/s/ Xxx Xxxxxx /s/ Massimiliano Pozzoni
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Xxx Xxxxxx Massimiliano Pozzoni
Director
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
Director
