[EXHIBIT 10.1]
EMPLOYEE AGREEMENT
THIS EMPLOYEE AGREEMENT made as of January 1, 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 Xxxxxx X.
Xxxxxxx ("Employee"), who resides at 000 Xxx Xxxx Xxx, Xxxx
Xxxxxx, Xxxxxxxxxx 00000.
WHEREAS, the Company is in the process of developing
commercial prototypes of its high-activity, high- stability
organic polymers for commercial applications in the existing and
future electro-optical device markets.
WHEREAS, the Company has engaged Employee as its Chief
Executive Officer to assist it in, among other things, developing
its business plan.
WHEREAS, the Company wishes to procure the services of
Employee under the terms and conditions set forth and Employee
wishes to be employed on these terms and conditions.
WHEREAS, the parties to this Employee Agreement wish to
enter into a written expression of their relationship as Employer
and Employee.
THEREFORE, in consideration of the agreements contained in
this Employee Agreement, the parties, intending to be legally
bound, agree as follows:
ARTICLE 1
Employment
1.1. Employment. The Company agrees to employ Employee, and
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Employee accepts employment with the Company, on and subject to
the terms and conditions set forth in this Employee Agreement.
1.2. Term. Subject to the provisions for termination as
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provided in Article 9 of this Employee Agreement, the term of
this agreement (the "Term") shall begin on January 1, 2008 and
shall terminate 12 months thereafter. This Employee Agreement
shall be automatically renewed for successive 3 month terms
unless either party gives notice of its intention not to renew by
delivering written notice to the other party not less than 30
days prior to the expiration of the existing term.
ARTICLE 2
Duties
2.1. Position and Duties. The Company agrees to employ
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Employee to act as its Chief Executive Officer. Employee shall be
responsible for performing the duties as described on Appendix A
attached hereto and made a part hereof. Employee agrees that he
will serve the Company faithfully and to the best of his ability
during the term of employment, under the direction of the board
of directors of the Company. The Company and Employee may jointly
from time to time to change the nature of Employee's duties and
job title.
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2.2. Time Devoted to Work. Employee agrees that he will
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devote all of the necessary business time, attention, and
energies, as well as Employee's best talents and abilities to the
business of the Company in accordance with the Company's
instructions and directions. Employee may engage in other
business activities unrelated to the Company during the term of
this Employee Agreement so long as such other business activities
do not interfere with the terms and conditions of this Employee
Agreement.
ARTICLE 3
Place of Employment
3.1. Place of Employment. Employee shall perform his
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duties under this Employee Agreement at 000 Xxx Xxxx Xxx, Xxxx
Xxxxxx, Xxxxxxxxxx, 00000.
ARTICLE 4
Compensation of Employee
4.1. Base Compensation. For all services rendered by
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Employee under this Employee Agreement, the Company agrees to pay
Employee the rate of $10,000 per month, which shall be payable to
Employee not less frequently than monthly, or as is consistent
with the Company's practice for its other employees.
4.2. Other Compensation. Prior to the date of this Employee
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Agreement, Employee received other compensation as more fully
described on Appendix B, attached hereto and made a part hereof.
4.3. Reimbursement for Business Expenses. Subject to the
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approval of the Company, the Company shall promptly pay or
reimburse Employee for all reasonable business expenses incurred
by Employee in performing Employee's duties and obligations under
this Employee Agreement, but only if Employee properly accounts
for expenses in accordance with the Company's policies.
ARTICLE 5
Vacations and Other Paid Absences
5.1. Vacation Days. Employee shall be entitled to the
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same paid vacation days each calendar year during the term of
this Employee Agreement as authorized by the Company for its
other employees.
5.2. Holidays. Employee shall be entitled to the same
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paid holidays as authorized by the Company for its other
employees.
5.3. Sick Days and Personal Absence Days. Employee shall
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be entitled to the same number of paid sick days and personal
absence days as authorized by the Company for its other
employees.
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ARTICLE 6
Key Man Life Insurance
During the term of this Employee Agreement, the Company
shall maintain in effect a key man life insurance policy on the
life of Employee in the face amount of $1,000,000 or such higher
amount as the Company shall in its sole discretion decide to
maintain during the term of this Employee Agreement. Any
proceeds payable under the policy shall be paid to the Company.
ARTICLE 7
Fringe Benefits
Employee shall be entitled to participate in and receive
benefits from all of the Company's employee benefit plans that
are now, or in the future may be, maintained by the Company for
its employees, including, without limitation, the Company's
health insurance plan. No amounts paid to Employee from an
employee benefit plan shall count as compensation due Employee as
base salary or additional compensation. Nothing in this Employee
Agreement shall prohibit the Company from modifying or
terminating any of its employee benefit plans in a manner that
does not discriminate between Employee and other Company
employees.
ARTICLE 8
Maintenance of Liability Insurance
So long as Employee shall serve as an executive officer of
the Company pursuant to this Employee Agreement, the Company
shall obtain and maintain in full force and effect a policy of
director's and officer's liability insurance in reasonable
amounts from an established and reputable insurer. In all
policies of such insurance, Employee shall be named as an insured
in such manner as to provide Employee the same rights and
benefits as are accorded to the most favorably insured of the
Company's officers or directors.
Notwithstanding the above, the Company shall have no
obligation to obtain or maintain director's and officer's
liability insurance if the Company determines in good faith that
such insurance is not reasonably available, the premium costs for
such insurance are disproportionate to the amount of coverage
provided or the coverage provided by such insurance is so limited
by exclusions that there is insufficient benefit from such
insurance.
ARTICLE 9
Termination of Employment
9.1. Termination of Employment. Employee's employment
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hereunder shall automatically terminate upon (i) his death; (ii)
the expiration of the Term; or (iii) Employee voluntarily leaving
the employ of the Company.
9.2. Termination For Employee's Failure to Meet Performance
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Standard. Employee's employment with the Company shall
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terminate, at the Company's discretion, upon 15 days prior
written notice to Employee if the Company terminates his
employment hereunder for "cause". For purposes hereof, "cause"
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shall include (i) Employee's willful malfeasance, misfeasance,
nonfeasance or gross negligence, (ii) any willful
misrepresentation or concealment of a material fact made by
Employee in connection with this Employee Agreement; (iii) the
willful breach of any covenant made by Employee hereunder; or
(iv) the failure of Employee to meet the performance standards
more fully described in Appendix A attached hereto and made a
part hereof.
Notwithstanding the above, if the Employee is terminated by
the Company without cause, the Company shall be obligated to pay
to Employee the compensation set forth in Section 4 hereof for
the remainder of the Term.
ARTICLE 10
Confidential Information
10.1. Disclosures While Employed by the Company. Employee
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acknowledges that, in performing the duties required by this
Employee Agreement, Employee will be making use of, acquiring
and adding to the confidential and proprietary information of
the Company and/or those persons or entities directly or
indirectly controlling or controlled by, or under direct
or indirect common control with, the Company (each an
"Affiliate" and collectively, the "Affiliates"), which (i) is of
a special nature and value, (ii) is not public information or is
not generally known or available to the Company's and/or the
Affiliates' competitors, (iii) is known only by the Company
and/or the Affiliates and those of their respective employees,
independent contractors, consultants, suppliers, customers or
agents to whom such data and information must be confided in
order to apply it to the uses intended, and (iv) relates to
matters such as, but not limited to, the Company's and the
Affiliates' respective methods of operation, internal structure,
financial affairs, programs, software, equipment and techniques,
existing and contemplated facilities, products and services, know-
how, inventions, systems, devices (whether or not patentable),
methods, ideas, procedures, manuals, confidential studies and
reports, lists of suppliers and customers and prospective
suppliers and customers, financial information and practices,
plans, pricing, selling techniques, sales and marketing programs
and methods, names, addresses and telephone numbers of the
Company's and/or the Affiliates' suppliers and customers, credit
and financial data of the Company's and/or the Affiliates'
suppliers and customers, particular business requirements of the
Company's and/or the Affiliates' suppliers and customers, special
methods and processes involved in designing, producing and
selling the Company's and/or the Affiliates' products and
services, any other information related to the Company's and/or
the Affiliates' suppliers and customers that could be used as a
competitive advantage by the Company's and/or the Affiliates'
competitors if revealed or disclosed to such competitors or to
persons or entities revealing or disclosing same to such
competitors, and all "trade secrets" (as that term is defined in
O.C.G.A. s. 10-1-761, as amended) of the Company and/or the
Affiliates, all of which, together with any and all extracts,
summaries and photo, electronic or other copies or reproductions,
in whole or in part thereof, stored in whatever medium (including
electronic or magnetic), shall be deemed the Company's and/or the
Affiliates' exclusive property, as applicable, and shall be
deemed to be "Confidential Information." Employee acknowledges
that the Confidential Information has been and will continue to
be of central importance to the business of the Company and the
Affiliates, and that disclosure of it to, or its use by, others
could cause substantial loss to the Company and the Affiliates.
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In consideration of Employee's employment hereunder, Employee
agrees that, at all times during the Term, and (i) with respect
to all Confidential Information constituting "trade secrets," for
so long thereafter as such Confidential Information continues to
constitute "trade secrets" (or for the period beginning on the
last day of the Term and ending five (5) years thereafter,
whichever is longer); and (ii) with respect to all Confidential
Information not constituting "trade secrets," for the period
beginning on the last day of the Term and ending five (5) years
thereafter, Employee shall not, directly or indirectly, use,
divulge or disclose to any person or entity, other than those
persons or entities employed or engaged by the Company who or
which are authorized to receive such information, any of such
Confidential Information, and Employee shall hold all of the
Confidential Information confidential and inviolate and will not
use such Confidential Information against the best interests of
the Company or any of the Affiliates.
10.2. Disclosures After Employment Terminates; Return of
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Records. Employee acknowledges and agrees that all supplier,
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customer, employee and contractor files, contracts, agreements,
financial books, records, instruments and documents, supplier and
customer lists, memoranda, data, reports, sales documentation and
literature, software, rolodexes, telephone and address books,
letters, research, listings, and any other instruments, records
or documents relating or pertaining to (i) the customers or
suppliers of the Company and/or any of the Affiliates serviced by
or serving the Company, any of the Affiliates or Employee, (ii)
the duties performed hereunder by Employee, or (iii) the business
of the Company and/or any of the Affiliates (collectively, the
"Records") shall at all times be and remain the exclusive
property of the Company and/or the Affiliates, as applicable.
Upon termination of Employee's employment hereunder for any
reason whatsoever, Employee shall promptly return to the Company
all Records (whether furnished by the Company or any of the
Affiliates or prepared by Employee), and Employee shall neither
make nor retain, nor allow any third party to make or retain, any
photo, electronic or other copy or other reproduction of any of
such Records after such termination.
10.3 Assignment of Inventions and Works Made for Hire.
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Employee hereby irrevocably assigns and transfers, and agrees to
assign and transfer, to the Company all of Employee's right,
title and interest in and to any and all Inventions and Works
Made for Hire (each as hereinafter defined) made, generated or
conceived by Employee at any time during the Term, whether alone
or with the assistance of others, whether or not made, generated
or conceived during normal business hours, and whether or not his
employment with the Company is hereafter terminated for any
reason whatsoever. For purposes of this Employee Agreement,
"Inventions" shall mean any and all discoveries, improvements,
innovations, ideas, formulae, devices, systems, software
programs, processes, products and any other creations similar
thereto which pertain or relate to the Company's electro-optical
polymer technology. For purposes of this Employee Agreement,
"Works Made for Hire" shall mean any and all "work made for
hire", as that term is defined in Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Copyright Law, Title 17 of the United States Code, as
amended. Upon the Company's request, Employee will promptly
execute and sign any and all applications, assignments, and other
documents, and will promptly render all assistance, which may be
reasonably necessary for the Company to obtain patent, copyright
or any other form of intellectual property protection.
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ARTICLE 11
Protective Covenants
Employee acknowledges that his specialized skills, abilities
and contacts are important to the success of the Company, and
agrees that he shall faithfully and strictly adhere to the
following covenants:
11.1. Non-competition. Employee acknowledges that by
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reason of the character and nature of the Company's business
activities and operations, and further by reason of the scope of
the territory in which Employee will perform the services under
this Employee Agreement, in order to protect the Company's
legitimate business interests it is necessary for Employee to
agree not to engage in certain specified activities in such
territory at any time during the Term of this Employment
Agreement and for a period of time thereafter. Therefore, at all
times during the Term, and for a period of five (5) years
thereafter, Employee will not, directly or indirectly, within the
Territory (as defined below), (a) for himself, in his capacity as
a Competing Business, (b) as a consultant, manager, supervisor,
employee or owner of a Competing Business (as defined below), or
(c) as an independent contractor for a Competing Business, engage
in any business in which Employee provides services which are the
same as or substantially similar to the services Employee is
providing hereunder. "Competing Business" shall mean any person,
business or entity who or which sells, markets or distributes
products and/or sells, furnishes or provides services
substantially the same as those sold, marketed, distributed,
furnished or supplied or expected to be sold, marketed,
distributed, furnished or supplied by the Company during the
Term. "Territory" shall mean the (i) the United States of
America; (ii) any market area that the Company conducts its
business; or (iii) any contemplated market area that the Company
intends to conduct its business within the following five (5)
years of the date of Employee's termination. "Contemplated Market
Area" shall mean any market area which the Company has evaluated,
is evaluating, or expects to evaluate and the Company has a
reasonable expectation that the Company will conduct business in
such area. Employee agrees that he and the Company may amend the
definition of "Territory" from and after the date hereof to
reflect any significant contraction or expansion of the
geographical area in which he performs the services hereunder.
11.2 Non-solicitation of Customers. Employee agrees that all
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customers whose relationships are managed by Employee, or with
whom Employee has contact during the Term, are the Company's
customers, and that all fees and revenues produced from such
relationships or contacts are the exclusive property of the
Company. Employee hereby waives and releases all claims and
rights of ownership to such customer relationships, fees and
revenues. Furthermore, at all times during the Term and for a
period of five (5) years thereafter, Employee will not directly
or indirectly, on his own behalf or on behalf of any person,
firm, partnership, association, corporation, business
organization, entity or enterprise, solicit, call upon or attempt
to solicit or call upon, any customer or prospective customer of
the Company, or any representative of any customer or prospective
customer of the Company, with a view to the sale or provision of
any product or service competitive or potentially competitive
with any product or service sold or provided, or under
development, by the Company at any time during the shorter in
duration of the Term and the last five (5) years thereof;
provided that the restrictions set forth in this sentence shall
apply only to customers or prospective customers of the Company,
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or representatives of customers or prospective customers of the
Company, with which Employee had contact at any time during the
shorter in duration of the Term and the last five (5) years
thereof.
11.3 Non-solicitation of Employees and Independent
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Contractors. At all times during the Term and for a period of
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five (5) years thereafter, Employee will not directly or
indirectly solicit or encourage any employee or independent
contractor of the Company to leave such employment or engagement
with the Company, or directly or indirectly employ or engage in
any capacity any former employee or independent contractor of the
Company, unless such former employee or independent contractor of
the Company shall have ceased to be so employed or engaged by the
Company for a period of at least two (2) years immediately prior
to such action by Employee.
ARTICLE 12
Construction
Employee acknowledges and agrees that the covenants and
agreements contained in Sections 10 and 11 of this Employee
Agreement are the essence of this Employee Agreement, and that
each of such covenants and agreements is reasonable and necessary
to protect and preserve the interests and business of the
Company. Employee further acknowledges and agrees that: (i) each
of such covenants and agreements is separate, distinct and
severable, not only from the other of such covenants and
agreements, but also from the remaining provisions of this
Employee Agreement, (ii) the unenforceability of any such
covenants or agreements shall not affect the validity or
enforceability of any other such covenants or agreements or any
other provision or provisions of this Employee Agreement, and
(iii) in the event any court of competent jurisdiction or
arbitrator, as applicable, determines, rules or holds that any
such covenant or agreement hereof is overly broad or against the
public policy of the state, then said court or arbitrator, as the
case may be, is specifically authorized to reform and narrow said
covenant or agreement to the extent necessary to make said
reformed and narrowed covenant or agreement valid and enforceable
to the maximum enforceable restriction permitted by law.
ARTICLE 13
Remedies
It is specifically understood and agreed that (i) any breach
of any of the provisions of Section 10 or 11 of this Employee
Agreement is likely to result in irreparable injury to the
Company, (ii) the remedy at law alone will be an inadequate
remedy for such breach, and (iii) in addition to any other remedy
it may have for such breach, the Company shall be entitled to
enforce the specific performance of this Employee Agreement by
Employee and to seek both temporary and permanent injunctive
relief (to the extent permitted by law) without the necessity of
proving actual damages. Notwithstanding any other provision of
this Employee Agreement to the contrary, any and all obligations
of the Company to pay any compensation to Employee for any reason
shall cease and terminate upon the breach by Employee of any of
the obligations of Employee under Sections 10 or 11 of this
Employee Agreement.
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ARTICLE 14
Existing Restrictive Covenants and Indemnification
Employee represents and warrants that (i) Employee is not a
party to or subject to any outstanding contract, agreement or
order whereby Employee is prohibited from entering into this
Employee Agreement, or any outstanding restrictive covenant or
noncompetition agreement which would interfere with or prevent
Employee's employment hereunder as contemplated by this Employee
Agreement; (ii) Employee has performed any and all duties or
obligations that he may have under any contract or agreement with
a former Employer or other party, including, without limitation,
the return of all confidential materials; and (iii) Employee is
currently not in possession of any confidential materials or
property belonging to any such former Employer or other party.
Employee acknowledges and agrees that he shall advise the Company
in the event that his duties with the Company should be changed
or enlarged in such a manner as to conflict with any such prior
contract, agreement, order or restrictive covenant. Without
limitation on any other rights or remedies available to the
Company with respect to Employee's breach of his obligations
hereunder, Employee shall defend, indemnify and hold the Company,
the Affiliates, and each of their respective shareholders,
officers, directors, employees, counsel, agents, affiliates and
assigns (collectively, the "Company Indemnities") harmless from
and against any and all direct or indirect demands, claims,
payments, obligations, recoveries, deficiencies, fines,
penalties, assessments, actions, causes of action, suits, losses,
diminution in the value of assets of the Company, compensatory,
punitive, exemplary or consequential damages (including, without
limitation, lost income and profits and interruptions of
business), liabilities, costs, expenses, and interest on any
amount payable to a third party as a result of the foregoing,
whether accrued, absolute, contingent, known, unknown or
otherwise asserted against, imposed upon or incurred by Company
Indemnities, or any of them, by reason of or resulting from,
arising out of, based upon or otherwise in respect of (1) any
conflict between Employee's employment hereunder and any prior
employment, duty, contract, express or implied agreement, order
or restrictive covenant, or (2) any misrepresentation by Employee
hereunder as to any facts which are the subject matter of any
conflict or violation of any prior contract, agreement, order or
restrictive covenant on the part of Employee.
ARTICLE 15
Notice to Future Employers
If Employee's employment hereunder terminates for any
reason, (i) Employee shall, during the five (5) year period after
the effective date of such termination, inform any subsequent
employers, business partners or colleagues of the existence and
provisions of Sections 11.1 and 11.2 of this Employee Agreement
and, if requested, provide a copy of such Sections of this
Employee Agreement to any such employer, business partner or
colleague; and the Company may, at any time, notify any future
employer, business partner or colleague of Employee of the
existence and provisions of Sections 11.1 and 11.2 of this
Employee Agreement.
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ARTICLE 16
Notices
Any notice given under this Employee Agreement to either
party shall be made in writing. Notices shall be deemed given
when delivered by hand, document delivery service, or when mailed
by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the party at the address set
forth below.
Employee address: Xx. Xxx Xxxxxxx
000 Xxx Xxxx Xxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
with a copy to:
________________
________________
________________
Company address: Xx. Xxxx Xxxxx
Third-order Nanotechnologies, Inc.
0000 Xxxxxx Xx., #00
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxx X. Xxxx, Esq.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Each party may designate a different address for receiving
notices by giving written notice of the different address to the
other party. The written notice of the different address will be
deemed given when it is received by the other party.
ARTICLE 17
Binding Agreement
17.1. Company's Successors. The rights and obligations
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of the Company under this Employee Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns
of the Company.
17.2. Employee's Successors. This Employee Agreement
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shall inure to the benefit and be enforceable by Employee's
personal representatives, legatees, and heirs. If Employee dies
while amounts are still owed, such amounts shall be paid to
Employee's legatees or, if no such person or persons have been
designated, to Employee's estate.
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ARTICLE 18
Waivers
The waiver by either party of a breach of any provision of
this Employee Agreement shall not operate or be construed as a
waiver of any subsequent breach.
ARTICLE 19
Entire Agreement
19.1. No Other Agreements. This instrument contains the
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entire agreement of the parties pertaining to the employment of
Employee by the Company. The parties have not made any
agreements or representations, oral or otherwise, express or
implied, to pertaining to the employment of Employee by the
Company other than those specifically included in this Employee
Agreement.
19.2. Prior Agreements. This Employee Agreement
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supersedes any prior employee agreements pertaining to or
connected with or arising in any manner out of the employment of
Employee by the Company. All such agreements are terminated and
are of no force or effect whatsoever.
ARTICLE 20
Amendment of Agreement
No change or modification of this Employee 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.
ARTICLE 21
Severability of Provisions
If any provision of this Employee 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 Employee Agreement.
ARTICLE 22
Assignment of Agreement
Other than as otherwise provided for in this Employee
Agreement, so long as Employee is an Employee pursuant to this
Employee Agreement, the Company shall not assign this Employee
Agreement without Employee's prior written consent, which consent
shall not be unreasonably withheld. Employee may not assign this
Employee Agreement.
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ARTICLE 23
Governing Law and Venue
All questions regarding the validity and interpretation of
this Employee 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.
ARTICLE 24
Arbitration of Disputes
If a dispute arises out of or relates to this Employee
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 Employee
Agreement in duplicate on the date and year first above written.
Employee,
/s/Xxxxxxx X. Xxxxxxxx /s/Xxx Xxxxxxx
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Witness Xxxxxx X. Xxxxxxx
Third-Order Nanotechnologies, Inc.
/s/Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxx
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Witness Xxxx Xxxxx, Xx., President
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Appendix A
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Duties of Employee
Employee, as the Company's Chief Executive Officer, subject to
the control of the Board of Directors, shall be responsible for:
A. The overall general management of the Company and
supervision of Company policies, setting the Company's
strategies, formulating and overseeing the Company's business
plan, raising capital, expanding the Company's management team
and the general promotion of the Company.
B. Such other powers and duties as may be prescribed by the
Board of Directors which is reasonably agreed upon by Employee.
00
Xxxxxxxx X
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Other Compensation
Options: 750,000
Grant Date: 11/17/07
Expiration Date: 11/16/12
These options will vest over 3 years as follows:
62,500 on 2/17/08
62,500 on 5/17/08
62,500 on 8/17/08
62,500 on 11/17/08
62,500 on 2/17/09
62,500 on 5/17/09
62,500 on 8/17/09
62,500 on 11/17/09
62,500 on 2/17/10
62,500 on 5/17/10
62,500 on 8/17/10
62,500 on 11/17/10
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