Form of
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is dated September 14, 2001, by
and between Isonics Corporation, a California corporation (the "Company"), and
____________, an individual resident of the State of ___________ ("Employee"),
and is effective as set forth in Paragraph 3, below.
R E C I T A L S:
The Company is engaged in various business activities as described in its
annual report on Form 10-KSB for the year ended April 30, 2001 and its quarterly
report on Form 10-QSB for the quarter ended July 31, 2001, and has recently
acquired a business manufacturing silicon-on-insulator and other wafers, all of
which involves the knowledge and use of certain intellectual property and other
confidential information of the Company for the conduct of the Company's
business (the "Business"); and
The Company has offered employment to Employee for reasonable compensation
for Employee's duties, responsibilities and restrictions described in this
Agreement but also desires to obtain certain agreements from the Employee
regarding confidentiality, non-disclosure, and assignment of inventions.
In consideration of the mutual agreements, promises and undertakings set
forth in this Agreement, and intending to be legally bound by this Agreement,
the parties hereto agree as follows:
1. POSITION. Employee will serve as ________ for the Company. Employee
shall serve in any additional position to which he is hereafter appointed by the
Board of Directors of the Company, but in any event shall not serve in any
capacity that is less than the position stated herein.
2. DUTIES. The Employee will perform the duties that the Board of
Directors of the Company and the President may from time to time reasonably
direct (the "Duties"). Employee will devote substantially all of the Employee's
full productive time, ability and attention to the Business during the term of
this Agreement and shall not directly or indirectly render services of a
business, commercial or professional nature to any other person or organization,
whether for compensation or not, without the prior written consent of the
Company. Employee will report to the President of the Company.
3. EMPLOYMENT PERIOD. (a) This Agreement shall become effective upon the
earliest of the following events (the "Effective Date"):
(i) The Company's receipt of Adequate Funding. For the purposes of this
Agreement, "Adequate Funding" means when the Company has received equity
financing of at least $2,000,000 (after deducting the expenses of obtaining
such financing) or such lesser amount that is, in the Company's discretion,
sufficient to carry out the business
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plan of establishing the business of manufacturing silicon-on-insulator
wafers and other silicon wafers in or near Troutdale, Oregon (the "Wafer
Manufacturing Business").
(ii) The Company commencing the Wafer Manufacturing Business at any
location on a commercial scale.
(iii) The Company providing written notice to Employee that this Agreement
has become effective.
(b) The term of the employment pursuant to this Agreement shall be for a
period of five years beginning on the Effective Date (the "Employment Period").
Notwithstanding anything to the contrary contained herein, the Employment Period
is subject to termination pursuant to Sections 6 and 7 below.
(c) If this Agreement becomes effective prior to the date the Company has
received Adequate Funding, then Employee will be paid 60% of the Base Salary as
set forth in Section 4(a) below, with the remaining 40% being accrued and
deferred until the Company receives Adequate Funding, but for no longer than six
months. If any Base Salary is deferred, payment of the deferred Base Salary will
commence on the date the Company receives Adequate Funding (but in any event, on
a date not later than six months after the Effective Date of this Agreement),
and shall thereafter be paid in twelve, equal monthly (or in the Company's
discretion 24 equal semi-monthly) installments in addition to Employee's
Compensation as set forth in Section 4(a) below.
4. COMPENSATION. Subject to Sections 6, 7, 8, 9 and 10, as compensation
for Employee's services, and as compensation for Employee's covenants set forth
in this Agreement, the Company agrees as follows:
(a) BASE SALARY: The Company will pay Employee a base salary ("Base
Salary") at a rate of $__________ per year. The payment of Base Salary
will be in accordance with the Company's regular payroll practices and
will be pro rated for any period less than a year. Employee's Base
Salary will be reviewed at the end of each twelve month period of
employment and may be modified from time to time by the Company, but
in no event shall any such compensation adjustment reduce the base
salary below the rate hereinabove specified. Nothing contained herein
shall require the Company to increase Employee's salary or other
compensation.
(b) BONUS. Employee shall be eligible to receive a performance bonus from
time-to-time based on such factors as the Board of Directors may
determine appropriate in light of the Company's operating results and
other factors that may be identified by the Board of Directors.
(c) ADDITIONAL COMPENSATION. At the discretion of the Board of Directors
of the Company (and without implying any obligation on the Company to
award a bonus to Employee), Employee will be eligible to participate
in any employment plans available to its employees, and may from time
to time be awarded a cash bonus or bonuses, or other
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incentive compensation, for services rendered or other contributions
made to the Company during the term of his employment under this
Agreement.
(d) BENEFITS. During the term of this Agreement, Employee also shall be
entitled to receive such benefits as are made available to other
personnel of the Company in comparable positions, with comparable
service credit and with comparable duties and responsibilities. Such
benefits shall be subject to the terms of the applicable plan
documents, summary plan descriptions and/or employment policies and
shall be subject to modification, amendment or revocation in
accordance with the terms of such documents, policies and procedures.
5. HOLIDAYS; VACATION. Employee shall be entitled to enjoy paid time off
for Company holidays the same as employees of the Company generally, according
to the policies of the Company from time to time in effect. Employees shall be
entitled to paid vacation and personal time off in accordance with the Company's
policies.
6. TERMINATION BY COMPANY FOR CAUSE. The Company retains the right to
terminate Employee's employment at any time for "Cause" immediately upon written
notice to Employee. The Company's termination of Employee's employment will be
for "Cause" if and only if both
(1) the Board of Directors of the Company reasonably determines that
Employee has, during the term of Employee's employment, (i) breached or
failed to perform in any material respect any reasonable and proper duty or
obligation imposed upon him in connection with his employment or this
Agreement, or breached any fiduciary duty to the Company, as to which the
Company has given him not less than ten (10) days written notice, and which
breach or failure has not been cured within any such period, (ii) committed
acts of personal dishonesty that would have a reasonable likelihood of
sustaining a claim made by the Company for damages in a court of competent
jurisdiction, (iii) pled guilty or no contest or been convicted of a crime
involving moral turpitude, whether or not committed during the term of
employment, (iv) violated the provisions of Sections 11, 12, 13 or 14 of
this Agreement, (v) committed any dishonest, unethical, fraudulent,
disloyal or felonious act in respect of his duties to the Company, or (vi)
committed any other act or series of acts that (in the Company's reasonable
opinion) damages the Company's reputation in the financial community or any
other community in which it cariries on business, and
(2) the Board of Directors gives Employee written notice of such
termination for Cause stating specifically the facts upon which the
determination of Cause was made.
If the Company terminates Employee's employment for Cause:
(a) the Company will pay the Base Salary through the date of termination,
prorated for any partial payroll period;
(b) the Company will pay the Employee for any accrued and unused vacation,
if any, that Employee was eligible for at the date of termination.
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7. TERMINATION BY COMPANY NOT FOR CAUSE. The Company retains the right to
terminate Employee's employment at any time for any reason other than for Cause
by giving Employee written notice. In the event of such termination:
(a) At the same time the Company terminates the Employee pursuant to this
Paragraph, (and provided the Employee has been employed by the Company
for at least six months prior to the date of termination) the Company
will pay the Employee six months Base Salary, but not more than the
remaining term of this Agreement;
(b) At the same time the Company terminates the Employee pursuant to this
Paragraph, the Company will pay the Employee for any accrued or unused
vacation, if any, that Employee was eligible for at the date of
termination.
The Company may require that Employee vacate the Company's premises at any time
during the notice period provided under Section 7.
8. RESIGNATION. Employee has the right to terminate Employee's employment
by giving the Company 10 business days advance written notice (a "Resignation").
The effect of Employee's Resignation will be the same as if the Company had
terminated Employee's employment for Cause, the date of termination being the
last day of the 10 business day notice period.
9. DEATH. If Employee's employment is terminated by Employee's death, the
Company will compensate the Employee's estate pursuant to Section 7, above, as
though the Company terminated the Employee's employment hereunder without Cause.
10. DISABILITY OR RETIREMENT OF EMPLOYEE. If Employee's employment is
terminated by "Disability" or "Retirement," the effect of such termination will
be the same as if Employee's employment had been terminated by Employee's death.
For purposes of this Agreement, "Disability" means a disability by reason of the
occurrence of an injury or disease (including mental illness) or a physical or
mental condition that, in the opinion of an appropriate physician chosen by the
Board of Directors of the Company, (i) results in Employee becoming unable
adequately to perform his customary duties for the Company and (ii) such
disability is expected to last more than one hundred eighty (180) days of which
Employee will be unable to perform a minimum of forty (40) hours per week of the
type of work described in Section 2 of this Agreement. For purposes of this
Agreement, "Retirement" means a severance from the Company's employment by the
Employee (i) who has attained his sixty-fifth birthday or (ii) who has completed
twenty (20) consecutive years as an employee of the Company.
11. NON-COMPETE. Employee hereby agrees that during the Employment Period
and (if, and only if the Employment Period is terminated pursuant to Paragraphs
6 or 8, above) through the period ending on the first anniversary of Employee's
actual date of termination, if Employee is, in fact, terminated pursuant to the
terms of this Agreement (collectively, the "Restrictive Period"), he shall not,
for any reason whatsoever, directly or indirectly, whether individually or as an
officer,
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director, shareholder, owner, partner, joint venturer, employee, independent
contractor, consultant or advisor to or of any entity, or in any other capacity:
(a) engage, participate or invest in any business which is competitive
with the Business; provided, however, that nothing contained herein
shall be construed to prevent Employee from investing in up to 5% of
the outstanding stock of any competing corporation that is
widely-traded and listed on a recognized national, international or
regional securities exchange or traded in the U.S. over-the-counter
market, but only if Employee is not actively involved in and does not
render consulting services to the business of said corporation, or
(b) sell or provide any competitive products or services relating to the
Business, to, or solicit for the purpose of selling or providing any
competitive products or services relating to the Business, to, any
person or entity that was a customer of the Company at any time during
the one-year period ending on the last day of the Employment Period
(the "Termination Date") or at any time during the period ending on
the one-year anniversary of Employee's actual date of termination, if
Employee is, in fact, terminated pursuant to the terms of this
Agreement, or that was actively being solicited by the Company to
become a customer of the Company at any time during such period.
12. The foregoing Paragraph 11 does not apply after the termination of the
Employment Period if the Employment Period is terminated for any reason other
than those set forth in Paragraphs 6 of 8, above. NONSOLICITATION. Employee
further agrees, during the Restrictive Period, notwithstanding any allegation of
breach of this Agreement, not to solicit, hire, influence or attempt to
influence any employee of the Company to terminate his or her employment or
other contractual relationship with the Company for any reason including,
without limitation, working for a competitor. Additionally, Employee agrees that
during the Restrictive Period Employee will not directly or indirectly attempt
to solicit or conduct business with any person or entity that is a client,
customer or active prospect of the Company at the time of Employee's termination
if such business would be in competition with the Business. The terms "client,"
"customer" and "active prospect" include, but are not limited to, any person or
entity solicited or contacted by Employee or the Company or any person or entity
to whom services have been rendered by Employee or the Company directly or
indirectly during the two (2) years preceding Employee's termination. Employee
acknowledges Employee's duty, both by contract and common law, not to interfere
with contractual relationships and not to use proprietary and confidential
information about customers or clients of the Company for the advantage of any
person or entity other than the Company.
13. NONDISCLOSURE OF PROPRIETARY CONFIDENTIAL INFORMATION. Employee
acknowledges that, during the Employment Period, Employee will obtain special
training and will have access to and become familiar with various trade secrets
and confidential information consisting of, among other items: trade secrets,
methods of operation, techniques, designs, processes, technologies, compilations
of information, past, present and prospective customer lists, records, and
specifications that are owned and commercially beneficial to the Company,
including any compilation of various trade secrets or data derived from such
information (collectively, the "Proprietary Information"). The Proprietary
Information does not include information which at the time it is disclosed by
the
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Employee was already in the public domain. If Employee is required by law to
disclose Proprietary Information, Employee shall notify the Company, in writing,
of the nature of such disclosure and the Proprietary Information to be
disclosed, as soon as is possible and/or practical, and permit the Company the
opportunity to contest or limit such disclosure.
Employee agrees that Employee will not disclose, either during
Employee's employment with the Company or after Employee's termination for
whatever reason, any Proprietary Information to any person or entity, except in
the course of Employee's duties on behalf of the Company, and that, similarly,
Employee will not use such information for the benefit of any person or entity
other than the Company at any time. Employee agrees that upon Employee's
termination, Employee will deposit with or return to the Company all copies (in
any media, including, without limitation, electronic storage media) of
documents, records, notebooks or any other information or documentation of the
Company's Proprietary Information, and all derivatives thereof, whether the
Proprietary Information or documentation was developed or prepared by Employee
or by others. Employee acknowledges that this covenant of nondisclosure is an
integral term of this Agreement and is given in consideration of Employee's
employment and the other consideration granted in this Agreement.
14. DISCLOSURE OF DEVELOPMENTS. Employee agrees to hold in complete trust
for the benefit of the Company, and to disclose promptly and fully to the
Company in writing, and hereby assigns to the Company any and all inventions,
discoveries, ideas, concepts, improvements, copyrightable works (including moral
rights, if any) and other developments conceived, made, discovered or developed
by him solely or jointly with others, during the term of his employment by the
Company, whether during or outside of usual working hours and whether on the
Company's premises or not, which relate in any manner to the Business
(collectively, the "Developments").
(a) OWNERSHIP OF DEVELOPMENTS. Any and all Developments shall be the sole
and exclusive property of the Company, whether or not patentable or
copyrightable, and Employee agrees that he will assist and fully
cooperate in every way, at the Company's expense, in securing,
maintaining and enforcing, for the benefit of the Company or its
designee, patents, copyrights, or other type of proprietary or
intellectual property protection for the Developments in any and all
countries. Employee acknowledges and agrees that each Development, to
the fullest extent permitted by law, is a "work made for hire," as
defined by the federal copyright laws, and therefore all copyrights in
and to such works are and will be owned by the Company. To the extent
that Employee authors any copyrightable work in any medium while
employed by the Company pursuant to this Agreement that relates or
pertains in any way to the Company or any of the operations or
activities of the Company, and which is not a "work made for hire,"
Employee hereby assigns all right, title and interest, including, but
not limited to, all rights of copyright (including moral rights, if
any), in and to such works to the Company.
(b) ADDITIONAL ACTS BY EMPLOYEE. Employee further agrees at the request of
the Company (but without additional compensation from the Company
during his employment by the Company) to execute any and all papers
and (at the expense of the Company) perform all lawful acts that the
Company deems necessary for the
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preparation, filing, prosecution and maintenance of applications for
United States and foreign letters patent, or for United States and
foreign copyrights, on the Developments, and to execute such
instruments as are necessary or convenient to assign to the Company,
its successors, assigns, or nominees, all of Employee's right, title
and interest in the Developments and the like, so as to establish,
maintain, or perfect, in the Company, its successors, assigns, or
nominees, the entire right, title and interest to the Developments,
and also to execute any instruments necessary or which the Company may
deem desirable in connection with any continuation, renewal, or
reissue thereof, or in the conduct of any proceedings or litigation in
regard to such Developments.
15. EMPLOYEE'S REPRESENTATIONS. Employee represents and warrants that he
is free to enter into this Agreement and to perform each of the terms and
covenants of it. Employee represents and warrants that he is not restricted or
prohibited, contractually or otherwise, from entering into and performing this
Agreement, and that his execution and performance of this Agreement is not a
violation or breach of any other agreement between Employee and any other person
or entity.
16. LIFE INSURANCE. The Company may at its discretion and at any time
apply for and procure as owner and for its own benefit and at its own expense,
insurance on the life of Employee in such amounts and in such form or forms as
the Company may choose. Employee shall cooperate with the Company in procuring
such insurance and shall, at the request of the Company, submit to such medical
examinations, supply such information and execute such documents as may be
required by the insurance company or companies to whom the Company has applied
for such insurance. Employee shall have no interest whatsoever in any such
policy or policies, except that, upon the termination of Employee's employment
hereunder, Employee shall have the privilege of purchasing any such insurance
from the Company for an amount equal to the actual premiums thereon previously
paid by the Company.
17. ASSIGNMENT. No party hereto may assign or delegate any of its rights
or obligations hereunder without the prior written consent of the other party
hereto. Except as otherwise expressly provided herein, all covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective legal
representatives, heirs, successors and assigns of the parties hereto whether so
expressed or not.
18. LIMITATIONS. This Agreement shall not confer any right or impose any
obligation on the Company to continue the employment of Employee in any
capacity, or limit the right of the Company or Employee to terminate Employee's
employment.
19. ATTORNEYS' FEES AND COSTS. If any action in arbitration or at law or
in equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party will be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which he or it may be
entitled.
20. WAIVER OF BREACH. The actual or apparent waiver by either party to
this Agreement of a breach of any provision of this Agreement will not operate
or be construed as an actual or
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constructive waiver of that breach or any subsequent breach by any party.
Waivers are not effective unless in writing and signed by the party granting the
waiver.
21. MULTIPLE COUNTERPARTS. This Agreement may be executed in counterparts,
each of which for all purposes is to be deemed an original, and all of which
constitute, collectively, one agreement. In making proof of this Agreement, it
will not be necessary to produce or account for more than one counterpart of
this Agreement. Furthermore, a photocopy of any counterpart will be valid and
have the same effect as an original.
22. SEVERABILITY AND SAVINGS CLAUSE. If any one or more of the provisions
or subjects contained in this Agreement is for any reason held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability will not affect the validity and enforceability of any other
provisions or subjects of this Agreement, and it is the intention of the parties
that there shall be substituted for such invalid, illegal or unenforceable
provision a provision as similar to such provision as may be possible and yet be
valid, legal and enforceable. Further, should any provisions of this Agreement
ever be reformed or rewritten by a judicial body, those provisions as rewritten
will be binding, but only in that jurisdiction, on Employee and the Company as
if contained in the original Agreement.
23. SUCCESSORS; SURVIVAL; AFFILIATES. This Agreement and the rights and
obligations under this Agreement will be binding upon and inure to the benefit
of the parties to this Agreement and their respective legal representatives, and
will also bind and inure to the benefit of any successor of the Company by
merger or consolidation or any assignee of all or substantially all of the
Company's assets. Except to any such successor or assignee of the Company,
neither this Agreement nor any rights or benefits under this Agreement may be
assigned by either party to this Agreement. Each covenant on the part of
Employee contained in Sections 11, 12, 13 and 14 shall be construed as an
agreement independent of any other provision of this Agreement and shall survive
the termination of this Agreement, pursuant to the terms contained therein. The
existence of any claim or cause of action of Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of any such covenant. The protective
covenants in Sections 11, 12, 13 and 14 shall also inure to the benefit of the
Company's affiliates (as hereinafter defined) and these covenants shall be
enforceable against Employee by each of such affiliates as third party
beneficiaries. An "affiliate" of the Company is any person or entity that
directly, or indirectly through one or many intermediaries, controls or is
controlled by, or is under common control with, the Company.
24. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to
Employee's employment by the Company and contains all of the covenants and
agreements between the parties with respect to such employment. This Agreement
can only be changed by the parties in writing, executed by the party against
whom enforcement of any modifications may be sought.
25. GOVERNING LAW AND VENUE . This Agreement will be governed by and
construed in accordance with the substantive laws of the State of Colorado
without regard to conflict of law provisions. Venue for any disputes shall be
the federal district courts in Portland, Oregon.
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26. NOTICES. Any notice under this Agreement will be in writing and will
be deemed to have been duly given when delivered personally or three (3) days
after such notice is deposited in the United States mail, registered, postage
prepaid, and addressed, to the Company, at its principal office, or to Employee
at Employee's last permanent address as shown on the Company's records.
27. REMEDIES.
(a) INJUNCTIVE RELIEF. Employee agrees that a breach or threatened breach,
based on reasonable and good faith evidence of a breach on Employee's
part, of any covenant contained in Sections 11, 12, 13 or 14 will
cause irreparable damage to the Company. For that reason, Employee
further agrees that the Company is entitled as a matter of right to an
injunction from any court of competent jurisdiction, restraining any
further violation of any of such covenants by Employee, Employee's
future employers, employees, partners, agents or any person or entity
related, directly or indirectly, to Employee. The right to an
injunction is in addition to whatever other remedies the Company may
have, including specifically the recovery of damages.
(b) ARBITRATION. Except to the extent provided in Section 27(a) above, any
controversy of any nature whatsoever, including but not limited to
tort claims or contract disputes, between the parties to this
Agreement (including their directors, officers, employees, agents,
successors, assigns, heirs, executors and beneficiaries) relating to
the formation, execution, interpretation, breach or enforcement of
this Agreement, shall be submitted to arbitration before the
JAMS-Endispute ("JAMS"), in accordance with their rules then in effect
and the substantive law of the State of Colorado and the United
States. The parties agree that any party requesting arbitration of any
dispute under this section must give formal written notice of the
party's demand for arbitration within one hundred twenty (120) days
after such dispute first arises and failure to timely communicate the
arbitration notice shall constitute a waiver of such dispute. Each of
the parties to this Agreement shall appoint one person as an
arbitrator to hear and determine such disputes, and if they should be
unable to agree, then the two arbitrators shall choose a third
arbitrator from a panel made up of experienced arbitrators selected
pursuant to the procedures of the JAMS and, once chosen, the third
arbitrator's decision shall be final, binding and conclusive upon the
parties to this Agreement. The arbitrators shall be bound in their
deliberations and their decision by the terms of this Agreement and
any applicable law. The arbitrators may not award punitive or
exemplary damages, but will have the power to award prejudgment
interest and attorneys' fees to the prevailing party. The award of the
arbitration panel may be confirmed by any state or federal court of
competent jurisdiction, and may be challenged only upon the grounds
provided in Section 10 of the Federal Arbitration Act, Title 9, United
States Code. This agreement to arbitrate shall survive the execution
of this Agreement. BY THEIR EXECUTION OF THIS AGREEMENT, EACH PARTY TO
THIS AGREEMENT CONSENTS, ON BEHALF OF HIMSELF OR ITSELF AND THEIR
RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS, TO SUCH BINDING ARBITRATION
IN ACCORDANCE WITH THE TERMS OF THIS SECTION. THE RIGHT TO ARBITRATE
IS INTEGRAL TO AND NOT SEVERABLE FROM THIS AGREEMENT. THE PARTIES
ACKNOWLEDGE THAT THEY HAVE READ THIS ARBITRATION
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AGREEMENT AND KNOWINGLY CONSENT TO ITS CONSEQUENCES, INCLUDING THE
WAIVER OF THE RIGHT TO LITIGATE CERTAIN DISPUTES. The expenses of such
arbitration will be borne by the losing party or in such proportion as
the arbitrators will decide. A material or anticipatory breach of any
section of this Agreement will not release either party from the
obligations of this Section 27(b).
The parties hereto have executed the Agreement as of the date first
mentioned above.
COMPANY:
ISONICS CORPORATION
By:
-----------------------------------
Xxxxx X. Xxxxxxxxx, President
EMPLOYEE:
--------------------------------------
Name:
Address:
Telephone:
Facsimile:
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