ALTAIR EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of February 17, 2006,
by and between Altair Nanomaterials, Inc., a Nevada corporation (the “Company”),
Altair Nanotechnologies Inc., a Canadian corporation (“Parent” together with the
Company and all consolidated subsidiaries of the Parent (the “Consolidated
Company”)), and Xxxx Xxxxxxx (“Employee”).
RECITALS
A. The
Company is a wholly-owned subsidiary of Parent and holds substantially all
of
the operating assets of the Parent and its consolidated subsidiaries.
B. The
Company desires to retain Employee as an employee of the Company subject to
the
terms and conditions of this Agreement.
C. Employee
desires to continue his employment with the Company subject to the terms and
conditions of this Agreement.
NOW,
THEREFORE, in consideration of this Agreement and of the covenants and
conditions contained in this Agreement, the parties hereto agree as
follows:
1. Employment;
Location.
The
Company hereby employs Employee, and Employee hereby accepts such employment,
in
Washoe County in the State of Nevada or in such other location as may be
mutually agreed between Employee and the Company.
2. Term.
The
Company agrees to employ Employee, and Employee agrees to accept employment
with
the Company, for the thirty six (36) month period beginning on the date first
set forth above (the “Term”), unless this Agreement is sooner terminated
pursuant to the terms of this Agreement. If Employee’s employment with the
Company continues beyond the Term, the terms of this Agreement will continue
to
govern Employee’s employment with the Company.
3. Duties.
Employee’s title shall be Chief Executive Officer and President of the Parent
and of the Company. Employee's duties shall include such duties as are
specifically assigned or delegated to Employee by the Board of Directors of
the
Company and/or the Board of Directors of the Parent (either such Board of
Directors, the “Board”) and such other duties as are typically performed by an
employee with the same position as Employee. Employee acknowledges that the
Board may change, increase or decrease Employee’s title, position and/or duties
from time to time its discretion. Employee shall diligently execute his or
her
duties and shall devote his full time, skills and efforts to such duties during
ordinary working hours. Employee
shall faithfully adhere to, execute and fulfill all lawful policies established
from time to time by the Company.
4. Compensation
and Benefits.
The
Company shall pay Employee, and Employee accepts as full compensation for all
services to be rendered to the Consolidated Company, the following compensation
and benefits:
4.1 Base
Salary.
During
the Term, the Company shall pay Employee an annual base salary per year in
an
amount not less than the annual base salary in effect as of December 31, 2005.
Such annual base salary to be payable in equal installments at least monthly
by
the last day of each month or at more frequent intervals in accordance with
the
Company's customary pay schedule. During the Term, the base salary of Employee
shall not be reduced below the minimum required by this Section. The Employee’s
annual base salary shall be reviewed and adjusted annually for performance
and
comparable job compensation as compared to competitive companies as mutually
agreed by the Board and Employee. If Employee’s employment continues beyond the
expiration of the Term, Employee’s annual base salary shall be as mutually
agreed by the Company and Employee.
4.2 Stock
Options.
With
respect to all options to purchase common shares of Parent previously granted
to
Employee or granted during the Term (“Options”), unless otherwise agreed in
writing by Employee in Employer’s discretion, such Option shall be (and hereby
is) amended to provide that if Employee's employment is terminated by the
Company without Cause Subsequent to a Change of Control Event pursuant to
Section 7.4, all such Options shall immediately vest as of the moment before
the
effective date of the Change of Control Event.
4.3 Bonus.
Employee shall be eligible to receive an annual bonus equal to up to eighty
percent (80%) of Employee’s base salary as of the last day of the calendar year
to which such bonus relates upon the achievement of performance measures
mutually agreed to by Employee and the Board. Employee and the Board shall,
prior to the end of the first month of each calendar year, negotiate in good
faith with the objective of agreeing upon performance objectives and related
bonus amounts for the upcoming fiscal year. In the event that Employee and
the
Board are not able to reach such a mutual agreement, the amount of any bonus
shall be in the discretion of the Board.
4.4 Additional
Benefits.
Employee shall be eligible to participate in, and be subject to, the Company's
employee benefit plans for, and policies governing, employees, if and when
any
such plans and policies may be adopted, including, without limitation, bonus
plans, pension or profit sharing plans, incentive stock plans, and those plans
and policies covering life, disability, health, and dental insurance in
accordance with the rules established in the discretion of the Board for
individual participation in any such plans and policies as may be in effect
from
time to time.
4.5 Vacation,
Sick Leave, and Holidays.
Beginning on the date hereof, Employee shall be entitled to vacation, sick
leave
and holidays at full pay in accordance with the Company's policy. Employee
shall
not be paid for any unused sick leave for which he has been credited.
4.6 Board
Seat.
During
the Term, at any time Employee is not a member of the Board of Directors of
Parent, Employee shall have the right to notice of meetings of the Board of
Directors of Parent, the right to attend any meetings of the entire Board of
Directors of Parent and the right to receive all materials delivered to the
directors of Parent in connection with such meetings.
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4.7 Deductions.
The
Company shall have the right to deduct from the compensation due to Employee
hereunder any and all sums required for social security and withholding taxes
and for any other federal, state or local tax or charge which may be hereafter
enacted or required by law as a charge on compensation of Employee.
5. Business
Expenses.
The
Company shall promptly reimburse Employee for all reasonable out-of-pocket
entertainment and business expenses he incurs in fulfilling his duties
hereunder, in accordance with the general policy of the Consolidated Company
in
effect from time to time, provided that Employee furnishes to the Company
adequate records and other documentary evidence required by the general policy
of the Consolidated Company and all federal and state statutes and regulations
issued by the appropriate taxing authorities for the substantiation of each
such
business expense as a deduction on the federal or state income tax returns
of
the Company.
6. Termination
of Employee's Employment.
6.1 Termination
of Employment by the Company for Cause.
Employee's employment may be terminated by the Company at any time for “Cause.”
For purposes of this Agreement, “Cause” shall include (i) Employee’s material
breach of this Agreement, which breach cannot be cured or, if capable of being
cured, is not cured within fifteen (15) days after receipt of written notice
of
the need to cure, (ii) any act of theft, embezzlement, conversion or other
taking or misuse of the property or opportunities of the Consolidated Company,
(iii) any fraudulent or criminal activities, (iv) any grossly negligent or
unethical activity, (v) any activity that causes substantial harm to the
Consolidated Company, its reputation, or to its officers, directors or employees
(including, without limitation, the illegal possession or consumption of drugs
for which Employee does not have a valid prescription on Consolidated Company
property or in the course of performing services for the Consolidated Company),
or (vi) habitual neglect of or deliberate or intentional refusal to perform
his
duties and obligations under this Agreement. A determination of whether
Employee’s actions justify termination for Cause and the date on which such
termination is effective shall be made in good faith by the Board. A termination
of Employee's employment pursuant to this Section 6.1 shall be effective as
of
the effective date of the notice by the Board to Employee that it has made
the
required determination, or as of such subsequent date, if any, as is specified
in such notice.
6.2 Termination
by the Company Without Cause.
Upon
not less than 15 day's prior written notice, the Company may terminate
Employee’s employment without Cause. A termination of Employee's employment
pursuant to this Section 6.2 shall be effective as of the later of (i) 15 days
after the effective date of the notice to Employee that the Company has elected
to terminate his employment without Cause pursuant to this Section 6.2, or
(ii)
as of such subsequent date, if any, as is specified in such notice.
6.3 Termination
By Employee For Good Reason.
Employee may terminate his employment under this Agreement at any time for
Good
Reason, provided Employee has delivered a written notice to the Board of
Directors that briefly describes the facts underlying Employee's belief that
Good Reason exists and the Company has failed to cure such situation within
15
days of its receipt of such notice. For purposes of this Agreement, Good Reason
shall mean and consist of:
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(a) a
material breach by the Company of any of its obligations, duties, agreements,
representations or warranties under this Agreement; or
(b) without
Employee's prior written consent, the transfer or relocation of Employee's
place
of employment to any place other than Washoe County, except for reasonable
travel on the business of the Company.
6.4 Termination
by Employee Without Good Reason.
Upon
not less than 15 day's prior written notice (which notice shall specify the
effective date of the termination), Employee may terminate his employment under
this Agreement by such notice without Good Reason.
6.5 Termination
of Employment by Death.
If
Employee dies during the term of employment, Employee's employment shall be
terminated effective as of the end of the calendar month during which Employee
died.
6.6 Disability.
The
Company or Employee may terminate Employee's employment under this Agreement
if
Employee shall become unable to fulfill his duties under this Agreement for
a
period of 90 days, as measured by the Consolidated Company's usual business
activities, by reason of any medically determinable physical and/or mental
disability determined in accordance with the procedure in this Section 6.6.
If
in the opinion of the Company or Employee, Employee is disabled for such 90
day
period, then the following shall occur:
(a) the
Company or Employee shall promptly so notify (by dated written notice) the
insurance company or carrier that, at that time, insures the employees of the
Company against long-term disability (the “Company’s Insurance Carrier”) and
request a determination as to whether Employee is disabled pursuant to the
terms
of the Company's long-term disability plan or policy; and
(b) the
matter of Employee's disability shall be resolved, and Employee and the Company
shall abide by the decision of, the Company’s Insurance Carrier.
A
termination of Employee's employment pursuant to this Section 6.6 shall be
effective ninety (90) days after the date as of which it is determined, pursuant
to this Section 6.6, that Employee was disabled. If Employee is not covered
by a
Company-sponsored disability policy on the date that the Company and/or Employee
believe that Employee may have a medically determinable physical and/or mental
disability, the Board shall make the determination of whether Employee has
a
medically determinable physical and/or mental disability using the definition
of
disability, including applicable court interpretations, used for purposes of
the
Americans With Disabilities Act of 1990, as amended.
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7. Effect
of Termination of Employee’s Employment.
7.1 Provisions
Applicable to All Terminations.
In the
event Employee’s employment is terminated for any reason, (a) not later than 30
days after the effective date of the termination, all cash compensation
described in this Agreement that was due through the effective date of the
termination (or in the case of a termination under Section 6.6, within 30 days
of the date the Company’s Insurance Carrier makes a disability determination),
but unpaid, shall be computed and paid to Employee by the Company; and (b)
Employee, or his heirs, or estate, as the case may be, shall receive all
compensation and employee benefits accrued through the effective date of the
termination, and all benefits provided through the Company's insurance plans
pursuant to the terms and conditions of such insurance plans or that the Company
is required to provide by governing law.
7.2 Termination
by Company With Cause or by Employee Without Good Reason.
If
Employee's employment is terminated by the Company for Cause pursuant to Section
6.1,
by
Employee without Good Reason pursuant to Section 6.4 or by either the Company
or
Employee after the expiration of the Term, then in such event, Employee shall
not be entitled to any compensation in addition to that set forth in Section
7.1.
7.3 Termination
by Company Without Cause or by Employee for Good Reason.
If
Employee's employment is terminated by the Company without Cause pursuant to
Section 6.2 prior to the expiration of the Term or by Employee for Good Reason
pursuant to Section 6.3 prior to the expiration of the Term, then, in addition
to complying with the requirements of Section 7.1, the Company shall, upon
receipt of a written release from Employee in form and substance reasonably
satisfactory to the Company with respect to all liabilities arising prior to
and
in connection with such termination (other than under Options and this Section),
continue to pay, when due in accordance with Section 4.1, to or for the benefit
of Employee or, if applicable, his heirs or estate, as their rights may be,
one
hundred percent (100%) of any and all payments of: (i) annual base salary;
and
(ii) 100% of the Company health benefits coverage then in effect; and (iii)
100%
of the annual bonus through, the period ending on the 12-month anniversary
of
the effective date of the termination of Employee's service.
7.4 Termination
by Company Without Cause Subsequent to Change of Control.
If
Employee's employment is terminated by the Company without Cause pursuant to
Section 6.2 prior to the Expiration of the Term and within ninety (90) days
prior to and one year after a Change of Control Event then, in addition to
complying with the requirements of Section 7.1, the Company shall, upon receipt
of a written release from Employee in form and substance reasonably satisfactory
to the Company with respect to all liabilities arising prior to and in
connection with such termination (other than under Options and this Section),
continue to pay, when due in accordance with Section 4.1, to or for the benefit
of Employee or, if applicable, his heirs or estate, as their rights may be,
one
hundred percent (100%) of any and all payments of: (i) annual base salary;
and
(ii) 100% of the Company health benefits coverage then in effect through the
period ending on the 24-month anniversary of the effective date of the
termination of Employee's service. A Change of Control Event means (a) any
capital reorganization, reclassification of the capital stock of Parent,
consolidation or merger of Parent with another corporation in which Parent
is
not the survivor (other than a transaction effective solely for the purpose
of
changing the jurisdiction of incorporation of Parent), (b) the sale, transfer
or
other disposition of all or substantially all of the Consolidated Company’s
assets to another entity, (c) the acquisition by a single person (or two or
more
persons acting as a group, as a group is defined for purposes of Section
13(d)(3) under the Securities Exchange Act of 1934, as amended) of more than
40%
of the outstanding common shares of Parent.
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7.5 Return
of Company Property.
Upon
the termination or end of the employment of Employee with the Consolidated
Company or at any time upon the request of the Company, Employee shall provide
to the Consolidated Company all property belonging to the Consolidated Company,
including, but not limited to, keys, card passes, credit cards, electronic
equipment including computers and personal digital devices, cellular telephones,
Consolidated Company automobiles, and all data and Consolidated Company
intellectual property whether located on Company property or
otherwise.
8. Covenant
Not to Compete.
8.1 Covenant.
Employee hereby agrees that, while he is employed by the Consolidated Company
and during a period of 12
months following
the termination of his employment with the Consolidated Company, Employee will
not directly or indirectly compete (as defined in Section 8.2 below) with the
Consolidated Company or its affiliates anywhere in the United States. It is
the
intention of the Company and Employee that this provision be interpreted to
only
prevent actual competitive harm to the Consolidated Company and not otherwise
hinder or restrict Employee in his efforts to find continued employment in
his
field of training and expertise.
8.2 Direct
and Indirect Competition.
As used
herein, the phrase “directly or indirectly compete” shall include owning,
managing, operating or controlling, or participating in the ownership,
management, operation or control of, or being connected with or having any
interest in, as a stockholder, director, officer, employee, agent, consultant,
assistant, advisor, sole proprietor, partner or otherwise, any Competing
Business (as defined below). For purposes of this Agreement, a “Competing
Business” shall be any business or enterprise other than the Consolidated
Company that is engaged in the Nanomaterials Business (as defined below). This
prohibition, however, shall not apply to ownership of less than five percent
(5%) of the voting stock in companies whose stock is traded on a national
securities exchange or in the over-the-counter market. For purposes of this
Agreement the “Nanomaterials Business” means the development, marketing, use,
modification or exploitation of any technology or process for the production
of
pigments, metals, nanomaterials or other materials from titanium containing
ores
and other feed materials for use in any application being explored, considered
or developed by the Consolidated Company at any time while Employee is employed
with the Company, including, without limitation, the production of titanium
dioxide pigments, the production of titanium metals, the production of
pharmaceutical products or pharmaceutical delivery devices, the production
of
lanthanum based phosphate and arsenic binding products, the production of
battery materials, or the production of thermal spray materials.
The
Company and the Consolidated Company acknowledge that Employee owns more than
5%
and has a working relationship with the following non-public Companies: Xxxx
Xxxxxxx & Company Inc., Assure Systems Inc., Idea Springs LLC, and InDelible
Technologies, Inc., “Xxxxxxx Entities”. The Company and the Consolidated Company
recognize and acknowledge Employee’s involvement as a passive investor in the
Xxxxxxx Entities.
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8.3 Nonsolicitation.
Employee hereby agrees that, while he is employed by the Company pursuant to
this Agreement, and, during a period of 12
months
following the termination of his employment with the Company, he will not,
directly or indirectly, through an affiliate or otherwise, for his account
or
the account of any other person, (a) solicit business substantially similar
to
the Nanomaterials Business from any person or entity that at the time of
termination is or was a customer of a Consolidated Company, whether or not
he
had personal contact with such person during and by reason of employment with
a
Consolidated Company; (ii) in any manner induce or attempt to induce any
employee of a Consolidated Company to terminate his or her employment with
a
Consolidated Company; or (iii) materially and adversely interfere with the
relationship between a Consolidated Company and any employee, contractor,
supplier, customer or shareholder of a Consolidated Company.
8.4 Enforceability.
If any
of the provisions of this Section 8 is held unenforceable, the remaining
provisions shall nevertheless remain enforceable, and the court making such
determination shall modify, among other things, the scope, duration, or
geographic area of this Section to preserve the enforceability hereof to the
maximum extent then permitted by law. In addition, the enforceability of this
Section is also subject to the injunctive and other equitable powers of a court
as described in Section 12 below.
8.5 Jurisdiction.
For the
sole purpose of enforcement of the Company’s rights under this Section 8, the
Company and Employee intend to and hereby confer jurisdiction to enforce the
restrictions set forth in this Section 8 (the "Restrictions") upon the courts
of
any jurisdiction within the geographical scope of the Restrictions. If the
courts of any one or more of such jurisdictions hold the Restrictions
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the Company and Employee that such determination not bar or in
any
way affect any Consolidated Company's rights to the relief provided above in
the
courts of any other jurisdiction within the geographical scope of the
Restrictions, as to breaches of such covenants in such other respective
jurisdictions, such covenants as they relate to each jurisdiction being, for
this purpose, severable into diverse and independent covenants. In the event
of
any litigation between the parties under this Section 8, the court shall award
reasonable attorneys fees to the prevailing party.
9.
Confidential
Information.
9.1 Definition.
The
term “Confidential Information” shall mean and include any information,
including a formula, pattern, compilation, program, source code, device, method,
technique, or process, that (i) derives independent economic value, actual
or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and (ii) that is the subject of efforts that are
reasonable under the circumstance to maintain its secrecy. Information that
may
be included in Confidential Information includes matters of a technical nature
(including know-how, computer programs, software, patented as unpatented
technology, source-code, accounting methods, and documentation), matters of
a
business nature (such as information about contract forms, costs, profits,
employees, promotional methods, markets, market or marketing plans, sales,
and
client accounts), plans for further development, and any other information
meeting the definition of Confidential Information set forth above.
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Confidential
Information includes all proprietary information and know-how of the
Consolidated Company, whether or not patented, related to the function,
development, use, marketing, operation or modification of any process owned,
developed or purchased by the Consolidated Company related to the production
of
pigments, metals, nanomaterials or other materials from titanium containing
ores
and other feed materials for use in any application presently being explored,
considered or developed by the Consolidated Company, including, without
limitation, the production of titanium dioxide pigments, the production of
titanium metals and the production of pharmaceutical products or pharmaceutical
delivery devices. Confidential information may also include any such information
developed by Employee for the Consolidated Company while an employee of the
Consolidated Company. “Confidential Information” does not include (i)
information that is in the public domain at the time the information is acquired
by Employee, or (ii) information that later becomes public through no act or
omission of Employee or other person subject to a duty to keep such information
confidential.
9.2
Nondisclosure
and Non-Use of Confidential Information.
Employee agrees that all files, records (including electronic or digitals
records), documents, and the like relating to such Confidential Information,
whether prepared by him or otherwise coming into his possession, shall remain
the exclusive property of the Consolidated Company, and Employee hereby agrees
to promptly disclose such Confidential Information to the Consolidated Company
upon request and hereby assigns to the Consolidated Company any rights which
he
may acquire in any Confidential Information. Employee further agrees not to
disclose or use any Confidential Information, and to use his best efforts to
prevent the disclosure or use of any Confidential Information either during
the
term of his employment or consultancy or at any time thereafter, except as
may
be necessary in the ordinary course of performing his duties under this
Agreement. Upon termination of Employee's employment or consultancy with the
Consolidated Company for any reason, Employee shall promptly deliver to the
Consolidated Company all materials, documents, data, equipment, and other
physical property of any nature containing or pertaining to any Confidential
Information, and Employee shall not take from the Consolidated Company's
premises any such material or equipment or any reproduction thereof without
the
written consent of the Consolidated Company.
10. Inventions.
10.1 Disclosure
of Inventions.
Employee hereby agrees that if he conceives, learns, makes or first reduces
to
practice, either alone or jointly with others, any “Employment Invention” (as
defined in Section 10.3 below) during his employment by the Consolidated
Company, either as an employee or as a consultant, he will promptly disclose
such Employment Invention to the Consolidated Company or to any person
designated by it.
The
Company and the Consolidated Company acknowledge that Employee owns more than
5%
and has a working relationship with the following non-public Companies: Xxxx
Xxxxxxx & Company Inc., Assure Systems Inc., Idea Springs LLC, and InDelible
Technologies, Inc., “Xxxxxxx Entities”. The Company and the Consolidated Company
recognize and acknowledge Employee’s involvement as a passive investor in the
Xxxxxxx Entities.
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10.2 Ownership,
Assignment, Assistance, and Power of Attorney.
All
Employment Inventions (as defined in Section 10.3 below) shall be the sole
and
exclusive property of the Consolidated Company, and the Consolidated Company
shall have the right to use and to apply for patents, copyrights, or other
statutory or common law protection for such Employment Inventions in any
country. Employee hereby assigns to the Consolidated Company any rights which
he
may acquire in such Employment Inventions. Furthermore, Employee agrees to
assist the Consolidated Company in every proper way at the Consolidated
Company's expense to obtain patents, copyrights, and other statutory common
law
protections for such Employment Inventions in any country and to enforce such
rights from time to time. Specifically, Employee agrees to execute all documents
as the Consolidated Company may desire for use in applying for and in obtaining
or enforcing such patents, copyrights, and other statutory or common law
protections together with any assignments thereof to the Consolidated Company
or
to any person designated by the Company. Employee's obligations under this
Section 10 shall continue beyond the termination of his employment under this
Agreement, but the Consolidated Company shall compensate Employee at a rate
agreed upon by Employee and the Consolidated Company pursuant to negotiations
in
good faith after such termination for the time which Employee actually spends
at
the Consolidated Company's request in rendering such assistance.
10.3 Employment
Inventions.
The
definition of Employment Invention as used in this Section 10 is as
follows:
“Employment
Invention” means any invention or part thereof conceived, developed, reduced to
practice, or created by an employee which is:
(a) conceived,
developed, reduced to practice, or created by the employee:
(i) within
the scope of his employment;
(ii) on
his
employer's time; or
(iii) with
the
aid, assistance, or use of any of his employer's property, equipment,
facilities, supplies, resources, or intellectual property;
(b) the
result of any work, services, or duties performed by an employee for his
employer;
(c) related
to the industry or trade of the employer; or
(d) related
to the current or demonstrably anticipated business, research, or development
of
the employer.
10.4 Exclusion
of Prior Inventions.
Exhibit
A
attached
hereto is a complete list by Employee of all inventions which Employee has
conceived, learned, made or first reduced to practice, either alone or jointly
with others, prior to or during his employment with the Company and which he
desires to exclude from the operation of this Agreement. If no inventions are
listed on this Exhibit
A,
Employee represents that he has made no such inventions at the time of signing
this Agreement. The Company hereby acknowledges and agrees that, for all
purposes of this Agreement, none of the inventions listed on Exhibit
A
shall be
treated as Employment Inventions hereunder.
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10.5 Inventions
of Third Parties.
Employee shall not disclose to the Consolidated Company, use in the course
of
his employment, or incorporate into the Consolidated Company's products or
processes any confidential or proprietary information or inventions that belong
to a third party, unless the Consolidated Company has received authorization
from such third party.
11. No
Conflicts.
Employee
hereby represents that his performance of all the terms of this Agreement and
his work as an employee of the Company does not breach any oral or written
agreement which he has made prior to his employment with the
Company.
12. Equitable
Remedies.
Employee
acknowledges and agrees that the breach or threatened breach by him of certain
provisions of this Agreement, including without limitation Sections 8, 9, and
10
above, would cause irreparable harm to the Consolidated Company for which
damages at law would be an inadequate remedy. Accordingly, Employee hereby
agrees that in any such instance the Company shall be entitled to seek (without
prior mediation or arbitration) injunctive or other equitable relief in any
state or federal court within or without the State of Nevada in addition to
any
other remedy to which it may be entitled. Employee hereby submits to the
jurisdiction of any courts within the City of Reno in the State of Nevada and
agrees not to assert such venue is inconvenient.
13. Assignment.
This
Agreement is for the unique personal services of Employee and is not assignable
or delegable in whole or in part by Employee without the consent of the Board.
This Agreement may not be assigned or delegated in whole or in part by the
Company without the written consent of Employee; provided, however, this
Agreement may be assigned by the Company without Employee’s prior written
consent if such assignment is made to an entity acquiring substantially all
of
the business or assets of the Company.
14. Waiver
or Modification.
Any
waiver, modification, or amendment of any provision of this Agreement shall
be
effective only if in writing in a document that specifically refers to this
Agreement and such document is signed by the parties hereto.
15.
Entire Agreement.
This
Agreement constitutes the full and complete understanding and agreement of
the
parties hereto with respect to the subject matter covered herein and supersedes
all prior oral or written understandings and agreements with respect
thereto.
This
Agreement supersedes, replaces and effects the termination of the Executive
Employment Agreement effective August 16, 2004 between Employee and Altair.
16. Severability.
If any
provision of this Agreement is found to be unenforceable by a court of competent
jurisdiction, the remaining provisions shall nevertheless remain in full force
and effect.
17. Attorneys’
Fees.
Should
any Company, Parent or Employee default in any of the covenants contained in
this Agreement, or in the event a dispute shall arise as to the meaning of
any
term of this Agreement, the defaulting or nonprevailing party shall pay all
costs and expenses, including reasonable attorneys’ fees, that may arise or
accrue from enforcing this Agreement, securing an interpretation of any
provision of this Agreement, or in pursuing any remedy provided by applicable
law whether such remedy is pursued or interpretation is sought by the filing
of
a lawsuit, an appeal, or otherwise.
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18. Confidentiality.
Each of
the parties acknowledges that the common shares of Parent are registered under
the Securities Exchange Act of 1934, as amended, and a result, the Company
may
be required to, and hereby has authorization to, file this Agreement or any
amendment hereto with the Securities and Exchange Commission without requesting
confidential treatment for any portion hereof.
19. Notices.
Any
notice required hereunder to be given by either party shall be in writing and
shall be delivered personally or sent by certified or registered mail, postage
prepaid, or by private courier, with written verification of delivery, or by
facsimile or other electronic transmission to the other party to the address
or
facsimile number set forth below or to such other address or facsimile number
as
either party may designate from time to time according to this provision. A
notice delivered personally or by facsimile or electronic transmission shall
be
effective upon receipt. A notice delivered by mail or by private courier shall
be effective on the third day after the day of mailing:
|
(a)
|
To
Employee at:
|
Xxxx
X. Xxxxxxx
|
|
|
000
Xxxxx Xxxx., Xxxxx 000
|
|||
|
Xxxxxxx
Xxxxxxx, XX 00000
|
|||
|
Facsimile
No: (000) 000 0000
|
|||
|
(b)
|
To
the Company at:
|
||
|
000
Xxxxxx Xxx
|
|||
|
Xxxx,
Xxxxxx 00000
|
|||
|
Facsimile
No: (000) 000-0000
|
20. Disputes;
Governing Law; Arbitration.
(a) Except
as
provided in Section 12 and Section 8.5, any dispute concerning the
interpretation or construction of this Agreement or his employment or service
with Company, shall be resolved by confidential mediation or binding arbitration
in Reno, Nevada. The parties shall first attempt mediation with a neutral
mediator agreed upon by the parties. If mediation is unsuccessful or if the
parties are unable to agree upon a mediator, the dispute shall be submitted
to
arbitration pursuant to the procedures of the American Arbitration Association
(“AAA”) or other procedures agreed to by the parties. All arbitration
proceedings shall be conducted by a neutral arbitrator mutually agreed upon
by
the parties from a list provided by AAA. The decision of the arbitrator shall
be
final and binding on all parties. The costs of mediation and arbitration shall
be borne equally by the parties.
(b) This
Agreement shall be construed in accordance with and governed by the statutes
and
common law of the State of Nevada. To the extent this Agreement expressly
permits any dispute to be resolved other than through arbitration or mediation,
the exclusive venue for any such action shall be the state and federal courts
located in Reno, Nevada, and the parties each hereby submit to the jurisdiction
of such courts for purposes of this Agreement.
11
21. Counterparts;
Facsimile.
This
Agreement may be executed in multiple counterparts, all of which taken together
shall form a single Agreement. A facsimile copy of this Agreement or any
counterpart thereto shall be valid as an original.
[intentionally
left blank; signature page follows]
12
IN
WITNESS WHEREOF, Employee has signed this Altair Executive Employment Agreement
personally and the Company and Parent have caused this Agreement to be executed
by their duly authorized representatives.
|
COMPANY:
|
||||||
|
ALTAIR
NANOMATERIALS, INC.
|
||||||
|
a
Nevada corporation
|
||||||
|
By:
___________________________________
|
||||||
|
Name:
_________________________________
|
||||||
|
Title:
__________________________________
|
||||||
|
PARENT:
|
||||||
|
a
Canadian corporation
|
||||||
|
By:
___________________________________
|
||||||
|
Name:
_________________________________
|
||||||
|
Title:
__________________________________
|
||||||
|
EMPLOYEE:
|
||||||
|
_______________________________________
|
||||||
|
Xxxx
Xxxxxxx, an individual
|
13
EXHIBIT
A
PRIOR
INVENTIONS AND TRADEMARKS
|
1.
|
“The
S/Xxxx®
Message Code System”
|
|
2.
|
Low
Cost theft detection products comprising information based two-
dimensional bar codes with a passive tag, alarm activation
system.
|
|
3.
|
Invisible
ink, non-visible transfer tape printing, human and machine readable
marking and imaging product technology
systems.
|
|
4.
|
Woven
label product that incorporate invisible, two dimensional bar codes
which
contains the S/Xxxx ® Message Code system.
|
|
5.
|
Invisible
Inkjet printing ink
|
|
6.
|
InGeniusTM
Invisible Ink Bar Code Reading
Systems
|
|
7.
|
The
Secure Logistic CompanySM
|
|
8.
|
InDelibleTM
|
14
