Exhibit 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into with the intent that it be effective as of
06 June, 2002, by and between Biophan Technologies, Inc. ("BTI"), a Nevada
corporation having its principal place of business at 000 Xxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxx Xxxxxxxxx, Xxx Xxxx 00000 ("Company") and Xxxxxx X. XxxXxxxxx
("Executive"), an individual residing at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxxxx,
Xxx Xxxx 00000-0000.
1. EMPLOYMENT RELATIONSHIP
1.1. Executive shall be and hereby is employed initially in the
capacity as set forth in Exhibit A, in consequence whereof
Executive shall faithfully, fully, and to the best of his
ability perform and render such services and perform such duties
for Company as it shall direct, and Executive shall devote
sufficient time and efforts to such services and duties,
although Executive is permitted to engage in other revenue
generating activity, provided it does not interfere with his
employment with BTI, and further provided that Executive
provides prior written notice to the Company of his intention to
engage in other business activity, and the Company reasonably
believes that such activity will not compete with the business
of the Company.
1.2. As compensation for the performance of his duties, Executive
shall receive an annual salary in the initial amount as set
forth in Exhibit A, such salary to be paid in regular periodic
installments as the parties agree, and performance bonuses as
reflected in Exhibit A.
1.3. Executive shall be entitled to stock options as set forth in
Exhibit A. In addition to the options set forth in Exhibit A,
Executive shall also be eligible to receive additional option
grants, from time to time, pursuant to the Company's Stock
Option Plan.
1.4. Executive shall be entitled to vacation time as set forth in
Exhibit A.
1.5. Executive shall be entitled to participate in all fringe benefit
programs now or hereafter made available to any other persons
employed in a similar capacity.
1.6. Company shall reimburse Executive for all travel and business
expenses incurred by him, which are reasonable and necessary for
carrying on the business of the Company, and as such are
approved by the Company. Expenses shall be reimbursed after
presentation by Executive of an itemized and documented account
of such expenses in form and substance satisfactory to the
Company, and after the Company has determined that such
expenditures were reasonable, ordinary, necessary and approved.
1.7. The initial term of this Agreement shall be two (2) years, and
shall automatically renew for subsequent one (1) year terms
unless this Agreement is otherwise terminated by either party in
accordance with Section 3.
1.8. The Company shall maintain general liability insurance and a
Directors' and Officers' policy, with coverage at least
comparable to the coverage in effect on the date this Agreement
is signed by Executive. Notwithstanding any provision herein to
the contrary, it shall not be a breach by the Company of this
Agreement if the Company changes its insurance coverage,
provided that the Company delivers to Executive prior written
notice of any changes to said insurance policies that may
adversely impact Executive.
1.9. The Company shall indemnify and hold blameless Executive for any
liability resulting from public statements made by Company in
any public communication, including, but not limited to, press
releases, brochures, convention materials, other print, video,
or CD materials, and the Company website. However, the Company
shall not be required to indemnify and hold Executive harmless
for any liability arising from Executive's own statements or
actions which were not duly authorized by the Company.
2. COVENANTS BY EXECUTIVE
2.1. Upon execution of this Agreement, Executive shall enter into the
Company's Confidential Information, Invention and Non-
Competition Agreement, a copy of which is attached hereto as
Exhibit B.
3. TERMINATION/SEVERANCE
3.1. The Executive's employment hereunder may be terminated upon the
occurrence of any of the following:
(i) the death of the Executive;
(ii) termination by Executive upon thirty (30) days' notice to
BTI ("Voluntary Termination"), or thirty (30) days' notice
by BTI to Executive ("Involuntary Termination");
(iii) upon the permanent disability of Executive; the term
"permanent disability" shall mean no longer being able to
perform the essential functions of the position with
reasonable accommodation;
(iv) at the Executive's discretion, upon a change in control
in the Company, where the phrase "Change in Control" shall
mean (1) on the date of the merger or consolidation of the
Company with another entity where the members of the Board
of Directors, immediately prior to the merger or
consolidation, would not, immediately after the merger or
consolidation, constitute a majority of the Board of
Directors of the entity issuing cash or securities in the
merger or consolidation; (2) on the date Xxxxxxx X. Xxxxxx
is terminated as CEO of the Company; or (3) on the date of
the sale or other disposition of all or substantially all
of the assets of the Company;
(v) at the Executive's discretion, upon a significant change in
the Executive's job duties or responsibilities, where the
phrase "Significant Change In The Executive's Job Duties Or
Responsibilities" shall mean a material change in the type
of work Executive performs;.
(vi) termination of the Executive's employment hereunder by the
Company at any time for "cause", such termination to take
effect immediately upon written notice from the Company to
the Executive.
3.2. Cause. For all purposes of this Agreement, the term "cause"
shall mean the occurrence of one or more of the following events
(i) the Executive willfully refuses to obey reasonable and
lawful orders of the CEO or the Board of Directors; (ii) the
Executive has willfully breached or habitually neglected his
duty and has failed to correct his behavior within five (5) days
following receipt of written notice of such concerns; (iii) the
Executive has been convicted in a court of law of a crime or
offense which involves dishonesty or fraud; (iv) the Executive
has breached any of the Executive's obligations pursuant to this
Agreement; or (v) the Executive has committed an intentional
tort against the Company or its Executives.
3.3. Severance for Involuntary Termination; Disability or Significant
Changes in Job Responsibilities. In the event of Involuntary
Termination of the Executive, Disability or Significant Changes
in Job Responsibilities, the Company will pay the Executive
(i) the unpaid amount of the Executive's Base Salary through the
date of termination as set forth in Exhibit A hereof, as amended
from time to time; and (ii) bonus compensation, if any, assuming
written goals required by the bonus plan are met, or would
likely be met if Executive remained employed. The details of
the bonus payment and when it is earned and how it is calculated
will be outlined in separate agreement to be agreed upon by the
Executive and the Board of Directors. In addition the Executive
shall have three (3) months from the date of termination to
exercise his rights to purchase stock in the Company pursuant to
any vested but unexercised option or warrant agreement. All
payments made to the Executive hereunder will be subject to all
applicable employment and withholding taxes.
3.4. Severance for Change in Control. In the event of termination
of employment of the Executive due to a Change in Control, the
Company will pay the Executive (i) the unpaid amount of the
Executive's Base Salary through the date of termination as set
forth in Exhibit A, as amended from time to time; (ii) bonus
compensation ,if any, assuming written goals required by the
bonus plan are met, or would likely be met if Executive remained
employed (the details of the bonus payment and when it is earned
and how it is calculated will be outlined in separate agreement
to be agreed upon by the Executive and the Board of Directors);
and (iii) a severance payment equal to six (6) months of his
then current salary, in three (3) equal installments with the
first installment due and payable within fifteen (15) days
following termination' the second installment due and payable
within thirty (30) days following termination; and the third
installment due and payable within sixty (60) days following
termination. In addition, the Executive will be immediately
vested in any warrants, options, retirement plans or agreements
then in effect and the Company will continue the Executive's
medical, dental, and vision insurance for the six (6) month
period. All payments made to the Executive hereunder will be
subject to all applicable employment and withholding taxes.
3.5. Termination for Cause. In the event of the termination for
Cause of the Executive, all unexercised warrants and options,
whether or not vested, shall be canceled and the Executive will
not be eligible for severance payments. The Company shall pay
to the Executive the unpaid amount of the Executive's Base
Salary through the date of termination as set forth in Exhibit
A.
3.6. Voluntary Termination. In the event of the Voluntary
Termination of the Executive, all unvested warrants and options
shall be canceled, and the Executive shall have three (3) months
from the date of termination to exercise his rights with respect
to any unexercised but vested options. The Executive will not
be eligible for severance payments. The Company shall pay to
the Executive the unpaid amount of the Executive's Base Salary
through the date of termination as set forth in Exhibit A.
3.7. The provisions of this Section 3 shall survive termination of
this Agreement for any reason.
4. MISCELLANEOUS PROVISIONS
4.1. Executive hereby represents and warrants that he is free to make
this Agreement, and the making hereof and/or performance
hereunder by him will not violate the legal and/or equitable
rights of any third party.
4.2. This Agreement and the Employee Confidential Information,
Invention and Non-Competition Agreement embody the entire
understanding of the parties, and there are no promises, terms,
covenants, conditions or obligations or other written, expressed
or implied agreements other than those contained herein. No
change or modification of this Agreement shall be valid unless
the same shall be in writing and signed by both parties hereto.
4.3. The waiver by either party hereto of a breach of any provision
of this Agreement shall not operate as or be construed as a
waiver of any subsequent breach of this Agreement.
4.4. The employment by Company or Executive is being effected because
of Executive's special capabilities and qualifications, and all
of his rights, benefits and duties hereunder are, therefore, not
assignable or transferable in any manner.
4.5. Except as set forth in the Employee Confidential Information,
Invention and Non-Competition Agreement, any controversy, claim,
or dispute arising out of or relating to this Agreement, or
breach of any provision of this Agreement, shall be settled by
arbitration, and, in connection therewith, the Company and
Executive hereto agree that:
A. Either Executive or Company may initiate arbitration of a
claim by giving written notice to the other party
("Arbitration Notice").
B. Within ten (10) days after the date on which the
Arbitration Notice is given, Executive and Company shall
agree upon a single arbitrator or, if they fail to do so
for any reason, at any time after the expiration of such
ten (10) day period, either party may request the American
Arbitration Association to designate an arbitrator. Any
arbitration proceeding shall be held in the County of
Monroe, the State of New York.
C. The arbitrator shall promptly consider the facts in
dispute and resolve the same in accordance with the Rules
of the Arbitration Association (or any successor
organization if the American Arbitration Association no
longer exists). The decision of the arbitrator shall be
final, conclusive, and binding upon Company and Executive.
D. The fees and expenses of the arbitrator in any such
proceeding (including the fees and expenses of any person
retained by the arbitrator) and the fees and expenses of
counsel for Executive and Company shall be borne by the
respective parties as follows:
(i) The party that did not initiate such proceeding
shall bear the portion of such fees and expenses
represented by the fraction having a numerator
equal to the net dollar amount of any recovery
actually awarded to the initiating party by the
arbitrator in such proceeding and having a
denominator equal to the maximum aggregate dollar
amount originally sought to be recovered by the
initiating party in connection with the claim
being arbitrated; and
(ii) The initiating party shall bear the remaining
portion of such fees and expenses.
In the event that multiple claims shall be involved in any such
proceeding, the fees and expenses of such proceeding shall be
allocated as provided above based upon the outcome of the claim
having the largest dollar amount originally sought to be
recovered.
E. The arbitrator shall have the power to grant injunctive
relief and other provisional remedies and to issue such
orders as may be deemed necessary in connection therewith.
4.6. If any provision of this Agreement is unenforceable, the
remaining provisions shall, to the extent possible, be carried
into effect, taking into account the general purposes and spirit
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first above written.
COMPANY EXECUTIVE
By: /s/Xxxxxxx X. Xxxxxx /s/Xxxxxx X. XxxXxxxxx
________________________ ___________________________
Xxxxxxx X. Xxxxxx Xxxxxx X. XxxXxxxxx
EXHIBIT A
Position/Job Title:
Vice President of Research and Development
Annual Salary:
$100,000, payable bi-weekly.
Stock Options:
Executive shall receive a non-qualified option to purchase up
to 100,000 common shares at a strike price of $.50 per share.
The Option may be exercised (a) with respect to all or any
part of 20,000 of the Shares covered hereby at any time on or
after December 1, 2002, (b) with respect to all or any part of
40,000 of the Shares covered hereby at any time on or after
December 1, 2003, (c) with respect to all or any part of
60,000 of the Shares covered hereby at any time on or after
December 1, 2004, (d) with respect to all or any part of
80,000 of the Shares covered hereby at any time on or after
December 1, 2005, and (e) with respect to all or any part of
the Shares covered hereby at any time on or after December 1,
2006. The option shall expire five (5) years and three (3)
months from the date of grant.
Healthcare Plan:
Executive will receive the Company's full health care plan, including
dental and vision.
Paid Vacation:
4 weeks
Paid Holidays:
Eleven (11) paid holidays according to the Company's standard holiday
schedule.
EXHIBIT B
Employee Confidential Information, Invention and Non-Competition Agreement
For good and valuable consideration, including my continued employment by
Biophan Technologies, Inc. (the "Company") or its successors and assigns, and
any of its present or future subsidiaries, or organizations controlled by,
controlling, or under common control with it, I agree as follows:
1. That the Company operates in a competitive environment, and that its
success is due in part to the competitive advantage afforded it by its unique
and proprietary trade secrets and other confidential information relating to
biomedical research and technology development as well as other business
processes and product technologies, in which the Company has invested (and
plans to continue investing) great time, effort, skill and expense. I
understand that the Company would be unwilling to employ and compensate me,
but for the restrictions of this Agreement. I acknowledge that my employment
by the Company may include inventing, discovering, initiating, or contributing
to Confidential or Proprietary Information as an integral part thereof.
2. At all times before and after the termination of my service (for any
reason by the Company or by me), I will keep all Confidential Information (as
defined below) in strict confidence and secrecy, and not disclose such
Confidential Information to anyone, and not use the Confidential Information
in any way outside of my assigned responsibilities for the Company, except as
expressly pre-authorized by the Company in writing. "Confidential Information"
means information or an idea that: (a) a competitor may secure a significant
competitive advantage over the Company by using; (b) the Company has not
disclosed to others outside the Company without restriction; (c) the Company
considers Confidential; (d) is not available in some form to others outside
the Company; or (e) the Executive did not know the information before becoming
employed. "Confidential Information" relates only to biomedical technology
associated with MRI compatible pacemakers, brain stimulators, and drug
delivery devices, with HIV/AIDS diagnosis and/or treatment, and related
lentiviral vectors, as well as other Company proprietary business processes or
technology.
3. During the period of my service with the Company, and for a period of
six (6) months after the termination of such service, I agree not to compete
with the Company, solicit any clients of the Company or otherwise engage,
assist, or participate directly or indirectly in the same business or
businesses as that or those conducted by the Company, involving the same or
similar products or services (limited to MRI compatible pacemakers, HIV/AIDS
diagnosis and/or treatment, and related lentiviral vectors), in any
jurisdiction in which the Company is doing business. In addition, I agree not
to engage, directly or indirectly, as an owner, promoter, consultant, officer,
director, employee or substantial stockholder or acquire any material
investment or other substantial equity interest in any business entity that so
competes with the Company (also limited as above to MRI compatible pacemakers,
HIV/AIDS diagnosis and/or treatment, and related lentiviral vectors). I agree
that this restriction is reasonable in time and scope and will not unduly
restrict me from earning a livelihood.
4. For a period of one (1) year following termination of my service with
the Company, I agree that I shall not: (a) persuade or attempt to persuade any
employee of the Company to leave the employ of the Company; (b) solicit any
client of the Company with respect to any products of the type offered by the
Company; (c) provide any services to any client of the Company of the type
offered by the Company; or (d) assist, directly or indirectly, any other party
in soliciting any client of the Company with respect to any products or
providing any services to any client of the Company of the type offered by the
Company. I agree that this restriction is reasonable in time and scope and
will not unduly restrict me from earning a livelihood.
5. To promptly disclose to the Company all inventions, copyrightable works
and other intellectual property that I have or will conceive, create or
develop during the term of my employment. I further agree to transfer to the
Company, or its designee, all rights in the Confidential Information or in any
expression of the Confidential Information, in any invention, copyright or
other intellectual property, whether or not patented or patentable, relating
to the Company's business, made, conceived or developed by me, alone or with
others, while I have been or continue to be employed by the Company, whether
or not in connection with my assigned duties and whether or not developed with
the use of Company personnel, facilities, equipment or other resources. I
hereby irrevocably assign to the Company or its designee all patent, copyright
and other ownership rights in all such inventions, copyrightable works and
other intellectual property, and agree (before and after termination of my
employment) to execute any and all papers and documents and to provide
reasonable assistance from time to time as the Company may consider to be
necessary or convenient in obtaining or perfecting any and all of such rights
for itself or its designee. If after termination of my employment, these
responsibilities are substantial in nature, they will be compensated at
prevailing consulting fee levels, and will be coordinated with any new
employment time demands. I further agree to request, in writing, a release
from the Company for any inventions or discoveries that I wish to pursue
personally and for which the Company determines that it has no present or
future interest in such invention or discovery, and that I shall take no
action contrary to the Company's interests in any such inventions or
discoveries until I receive a written response to my request. Failure to
provide a written response within three (3) months shall constitute a release
by the Company. In the event the Company is unable for any reason to secure
my signature to any lawful and necessary document required to apply for or
execute any patent applications or copyright registrations with respect to
such an invention or copyrightable work (including renewals, extensions,
continuations, divisions or continuations in part thereof), I hereby
irrevocably designate and appoint the Company and its duly authorized officers
and agents, as my agents and attorneys-in-fact to act for and on my behalf
and, instead of me, to execute and file any such application or registration
and to do all their lawfully permitted acts to further the prosecution and
issuance of patents or copyright registration thereon with the same legal
force and effect as if executed by me.
6. To return to the Company all notes, records, lists, files and
documentation (in hard copy or machine readable form) supplied to me by the
Company or its business associates, or created by me in the course of or in
connection with my employment, or otherwise used, created, collected, or
controlled by me while employed by the Company, upon request by the Company,
and, in any event, upon termination of my employment. I will do this without
keeping any copies (including copies on any computer or data storage media).
However, regardless of any other provision herein, I will be allowed to retain
a copy, for personal non-business use, of any speeches, presentations, or
articles prepared before or during the course of my employment.
7. I further warrant and represent to the Company that I am not subject to
any agreement or university policy inconsistent with this Agreement regarding
inventions or discoveries set forth herein. I further agree to refrain from
engaging in any other employment or outside business interest without the
prior written consent of the Company, excluding the following interests in
which I will continue to be engaged prior to beginning this employment:
a. N/A
b. ________________________________________________________________
c. ________________________________________________________________
Requires Acknowledgement by Officer of Company ___________________________
____/____/20___
8. This Agreement shall benefit and may be enforced by the Company, its
successors or assigns, and shall bind me and any successors in interest, and
may not be changed in whole or in part except in a writing signed by an
authorized officer of the Company and me.
This Agreement is governed by internal New York law. Any litigation commenced
by a party and relating to this Agreement or its subject matter shall be
within the exclusive jurisdiction of the courts of the State of New York,
Monroe County, or if the jurisdiction prerequisites exist at the time, the
Federal Courts of New York with venue to be in the Western District of New
York, and the parties hereby waive any right in such litigation to object to
personal jurisdiction and venue. The Company shall be entitled to preliminary,
temporary and permanent injunctive relief to restrain any violation of this
Agreement by me, in addition to damages and other remedies.
The Company may notify anyone subsequently employing or retaining me or
evidencing any intention to employ or retain me as to the existence and
provisions of this Agreement. No waiver of any provision of this Agreement (or
any similar agreement with any other person) shall constitute or imply any
continuing, other or further waiver, and the Company shall be free to
reinstate the waived term at any time and to enforce all other provisions of
this Agreement at its sole discretion. This is the entire agreement concerning
its subject matter. I understand that my employment with the Company may be
terminated by either me or the Company at any time in accordance with the
terms of my Employment Agreement, to which this document is attached.
Having read and understood this Agreement, I have willingly and voluntarily
executed and unconditionally delivered this Agreement to the Company,
effective as of the _____ day of _____________, 2002.
Xxxxxx X. XxxXxxxxx
/s/Xxxxxx X. XxxXxxxxx
_______________________________
Signature
