EXHIBIT 10.1
DIRECTOR AGREEMENT
THIS AGREEMENT made as of January 8, 2008, by and between
Third-Order Nanotechnologies, Inc., a Nevada corporation (the
"Company"), whose principal place of business is at 0000 Xxxxxx
Xx., #00, Xxxxxxxxxx, Xxxxxxxx 00000; and Xxxxxxx X. Xxxxxxx, III
("Director"), whose address is 00 Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
WHEREAS, the Company and the Director desire to enter into
an agreement which will set forth the terms and conditions upon
which the Director shall serve as a director on the Company's
Board of Directors.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties have agreed, and do hereby
agree, as follows:
Section 1: Appointment.
The Company appoints the Director as a member of the
Company's Board of Directors and the Director accepts such
appointment upon the terms and conditions set forth. The Director
shall serve as a member of the Company's Board of Directors until
his successor is appointed or elected and shall qualify. However,
neither the Company, nor any other person, shall be required to
cause the continuation, election, or re-appointment of the
Director as a member of the Company's Board of Directors.
Section 2: Indemnification
The Director shall receive the full benefits, protection,
and rights of full and complete indemnification from the Company
in connection with his position with the Company as a member of
the Company's Board of Directors to the fullest extent permitted
by law. Further, the Director shall be named as an insured on
the Company's underwritten officer and director liability
insurance policy.
Section 3: Compensation.
Pursuant to the Company's 2007 Employee Stock Plan, the
Director will receive an option to purchase up to one hundred
thousand (100,000) thousand shares of restricted common stock of
the Company at the strike price of $0.72 per share. The options
shall vest as follows: (i) Twenty Five Thousand (25,000) options
shall vest immediately; and (ii) the remaining options shall vest
in three (3) equal annual installments of Twenty Five Thousand
(25,000) options per year commencing on the 1st day of each one
year anniversary of execution of this Agreement. All of the
options shall expire on January 8, 2013.
Section 4: Duties/ Extent of Services.
The Director shall serve as a member of the Board of
Directors of the Company, and shall assume the duties that the
Chairman of the Board may assign. Subject to Section 6 contained
herein, nothing in this Agreement shall be construed to limit the
Director's freedom to engage in other businesses. It is agreed,
however, that the Director will devote his best efforts to the
needs of the Company, and shall not allow his other business
activities to materially interfere with his duties to the
Company.
Section 5: Expenses.
Subject to prior approval of the Chairman of the Board of
Directors, the Director is authorized to incur reasonable
expenses on behalf of the Company in performing his duties,
including expenses for travel, transportation, entertainment, and
similar items, which expenses shall be paid by the Company.
Section 6: Non-Disclosure and Non-competition.
The Director shall execute the non-disclosure non-compete
agreement attached hereto as Appendix A, which is incorporated
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into this Agreement.
Section 7: Waiver of Breach.
The waiver by either party of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
Section 8: Entire Agreement
This Agreement contains the entire agreement of the parties
pertaining to the appointment of the Director to the Company's
Board of Directors.
Section 9: Amendment of Agreement
No change or modification of this Agreement shall be valid
unless it is in writing and signed by the party against whom the
change or modification is sought to be enforced. No change or
modification by the Company shall be effective unless it is
approved by the Company's Board of Directors and signed by an
officer specifically authorized to sign such documents.
Section 10: Severability of Provisions
If any provision of this Agreement or the non-disclosure
non-compete agreement is invalidated or held unenforceable, the
invalidity or unenforceability of that provision or provisions
shall not affect the validity or enforceability of any other
provision of this Agreement or the non-disclosure non-compete
agreement.
Section 11: Governing Law and Venue
All questions regarding the validity and interpretation of
this Agreement shall be governed by and construed and enforced in
all respects in accordance with the laws of the State of
Delaware. The sole and proper venue shall be New Castle County,
Delaware.
Section 12: Arbitration of Disputes
If a dispute arises out of or relates to this Agreement, or
the breach thereof, and if the dispute cannot be settled through
negotiation, the parties agree first to try in good faith to
settle the dispute by mediation administered by the American
Arbitration Association under its Employment Mediation Rules
before resorting to arbitration, litigation or some other dispute
resolution procedure.
IN WITNESS, the parties have executed this Agreement in
duplicate on the date and year first above written.
Director,
/s/Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxx, III
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Witness Xxxxxxx X. Xxxxxxx, III
Third-Order Nanotechnologies, Inc.,
/s/Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Witness Xxxxxx X. Xxxxxxx, CEO
APPENDX A
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Non-Disclosure and Non-Competition Agreement
APPENDIX A
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Agreement ("Agreement") dated January 8, 2007 is
entered into between Third-Order Nanotechnologies, Inc., located
at 0000 Xxxxxx Xx., Xxxxx #00, Xxxxxxxxxx, Xxxxxxxx 00000, its
predecessors, promoters, successors and assigns (collectively the
"Company"); and Xxxxxxx X. Xxxxxxx, III ("Director"), whose
address is 00 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, Company is a technology company focused on the
development of electro-optic polymer materials for applications
in high-speed fiber-optic telecommunications and optical
computing, which involves the development and utilization of
information not generally known in the industry or industries in
which the Company is or may become engaged; which information
may, without limitation, include information relating to
research, development, inventions, manufacture, purchasing,
accounting, engineering, marketing, merchandising, and selling
Company's products (collectively referred to below as "the secret
information");
WHEREAS, the Company desires to appoint the Director as a
member of the Company's Board of Directors and the Director
accepts such appointment;
WHEREAS, in performing his services for Company, Director
will necessarily be given access to secret information, which
will be identified by Company as such; and
WHEREAS, the use of the secret information by, or its
disclosure to, any person or organization other than Company and
its employees or Director would be highly detrimental and
damaging to Company.
NOW THEREFORE, with the foregoing recitals being
incorporated herein by reference and deemed an essential part
hereof and in consideration of the mutual promises, covenants and
conditions contained herein, the parties agree as follows:
Section 1. Nondisclosure of Secret Information
1.1 Non-disclosure. Director agrees that neither he nor any
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of his employees, agents, independent contractors or
other persons or organizations over which he has
control, will at any time during or after his
relationship with Company, directly or indirectly use
any secret information for any purposes not associated
with Company's activities, or disseminate or disclose
any of the secret information to any person or
organization not connected with Company, without the
express written consent of Company. Director also
agrees that he will undertake all necessary and
appropriate steps to ensure that the secrecy of the
secret information in his possession will be maintained.
1.2 Return of documents. Upon termination of his
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relationship with Company, Director agrees that all
documents, records, notebooks and similar repositories
of or containing secret information, including copies
of such materials, then in his possession, whether
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prepared by him or others, will be returned to Company.
1.3 Non-competition. For a period of five (5) years after
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termination of his relationship with Company, Director
agrees that within the territory of the entire world,
neither he nor any of his employees, agents,
independent contractors or other persons or
organizations over which he has control, will, directly
or indirectly, render services to any person or
organization in, or about to become engaged in, the
research or development, production, marketing or
selling of a product, process or service which
resembles or competes with a product, process or
service of Company, nor will Director, his employees,
agents, independent contractors or other persons or
organizations over which he has control, directly or
indirectly, become engaged in the research or
development, production, marketing or selling of a
product, process or service which resembles or competes
with a product, process or service of Company.
1.4 The parties expressly agree that the restrictions
contained in section 1.3 of this Agreement are fair and
reasonable. If the provisions of Section 1.3 should
ever be adjudicated to exceed the time, geographic or
other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed
reformed in such jurisdiction to the maximum time,
geographic or other limitations permitted by applicable
law. The parties also agree that in the event the
Company is acquired by a third party company, the
provisions of Section 1.3 shall not apply to any aspect
of such third party acquirer's business, other than
that which is directly related to the Company.
1.5 Director acknowledges that the secret information
belongs t o Company, that Company claims the secret
information comprises trade secrets, claims that the
secret information is confidential to Company and that
each of the obligations assumed by Director in this,
and the other paragraphs contained herein, is a
material inducement to disclose the secret information
to Director.
Section 2. Enforcement
2.1 In the event that the Director shall breach this
Agreement, or in the event that such breach appears to
be an imminent possibility, Company shall be entitled
to all legal and equitable remedies afforded it by law
as a result of the breach (including an injunction
restraining the party or parties about to commit any
breach of this Agreement, or who have committed a
breach of it, without showing or proving any actual
damage sustained by Company), and may, in addition to
any and all other forms of relief, recover from
Director all reasonable costs and attorneys' fees
encountered by it in seeking any such remedy.
Section 3. Binding Effect
3.1 This Agreement shall be binding upon the parties to
this Agreement and upon their respective executors,
administrators, legal representatives, successors and
assigns.
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Section 4. Applicable Law
4.1 This Agreement shall be governed for all purposes by
the laws of the State of Delaware, with New Castle
County as the agreed upon proper venue.
In witness, the parties executed this Agreement on the date
first shown above.
Witness Director
/s/Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxx, III
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Name: Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxx, III
Third-Order Nanotechnologies, Inc.,
/s/Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx, CEO
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