Exhibit 10.9
EMPLOYMENT AGREEMENT
WHEREAS, the company identified below ("Company") employs the employee
identified below ("Employee") in the capacity identified below ("Position"); and
WHEREAS, Employee desires to agree to the covenants relating to his
employment and post-employment activities in exchange for the undertakings of
Company hereunder.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending legally to
be bound by this Employment Agreement ("Agreement"), agree as follows:
1. Specifications and Definitions
(a) Agreement Dated: As of April 1, 2006
(b) Company: NanoDynamics, Inc.
(c) Employee Name and Address:
Xxxxxxx X. Xxxxxx
00 Xxxxxx Xxxx
Xxxxxxx, XX 00000
(d) Position: President
(e) Signing Bonus: $100,000 due and payable upon execution of this Agreement
Base Salary: $275,000 4/1/06 - 4/30/07
$300,000 5/1/07 - 4/30/08
$325,000 5/1/08 - 10/31/08
(f) Basic Term: Three (3) years from the date hereof.
(g) Geographic Area of Non-Competition: shall mean the areas specified below:
Worldwide.
The Employee specifically acknowledges that this geographic restriction is
reasonable given the scope of Employee's responsibilities.
(h) Specific Field of Non-Competition shall mean any "Similar Business" as
defined in Section 9(a).
(i) Affiliated Company: shall mean Company and any other business organization
in which Company directly or indirectly holds a twenty-five percent (25%)
or greater ownership interest.
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2. Employment
Company agrees to employ Employee in the Position as set forth in Section 1(d),
and Employee agrees to accept such employment on the terms and conditions herein
set forth.
3. Term
The term of employment of Employee pursuant to this Agreement shall commence as
of the date hereof and shall continue for the number of years equal to the Basic
Term as defined in Section l(f), and this Agreement shall be automatically
renewed for additional one-year terms unless and until sixty (60) days prior
written notice is given by either party to the other of the intent to not to
renew the term of this Agreement as provided herein.
4. Duties
(a) Employee shall, on a full-time basis, devote his best efforts and services
to the Company in fulfilling the duties of the Position, which shall
include duties normally associated with the Position at a comparable
organization and such other duties as reasonably may be assigned from time
to time by the Board of Directors of the Company (the "Board of
Directors"). Employee shall at all times conduct himself in a manner
consistent with the duties and responsibilities of the Position. Employee
shall at all times serve the best interests of the Company, reporting to
and subject at all times to the direction and supervision of the Board of
Directors.
(b) If Employee is elected or appointed a Director of Company or an Affiliated
Company during the term of this Agreement, Employee agrees to serve in such
capacity, and he shall be entitled to receive such further compensation as
other Directors of the Company or an Affiliated Company are entitled to
receive; but nothing herein shall be construed as requiring Company, or
anyone else, to cause the election or appointment of Employee as a
Director.
(c) Employee represents and warrants that acceptance and delivery of this
Agreement and the performance of his duties hereunder will not violate the
terms of any other agreement to which he is or was a party or to which he
is or was intended to be bound. Employee agrees not to enter into any
agreement, either written or oral, which may conflict with this Agreement.
Employee further represents and warrants that in performing his duties
hereunder, he shall use his best efforts to comply with all applicable laws
and regulations and that he immediately will report to the Board of
Directors all material conduct by Company or its employees or agents
(including Employee) which he knows or should have known is or may be
illegal.
5. Compensation and Benefits
(a) Employee shall receive the one time "Signing Bonus" payable upon execution
of this Agreement and the "Base Salary" for the periods indicated payable
in periodic installments both as defined in Section 1(e) less the usual tax
withholdings and payroll deductions. The Base Salary may be reviewed
periodically, and may be increased (but in no event decreased) to the
extent, if any, determined by Company in its sole discretion.
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(b) Employee shall also be entitled to participate in any fringe benefit
programs generally available to all employees of Company in accordance with
and subject to the terms and conditions of such programs. In addition, (i)
Company shall reimburse Employee an amount equal to 1.6 times the premiums
paid by Employee to purchase long term disability insurance in an amount
equal to 50% of the Base Salary with a waiting period of not less than 180
days of disability, and such reimbursement shall be made within fifteen
(15) days of presentation of a premium invoice by Employee to the Company,
the amount of said reimbursement not to exceed $15,000 per year; (ii)
Company shall reimburse Employee an amount equal to 1.6 times the premiums
paid by Employee to purchase $1,000,000 of term life insurance for the
benefit of his designated beneficiaries, the amount of said reimbursement
not to exceed $10,000 per year; and (iii) Employee shall be entitled to
four (4) weeks of vacation per calendar year.
(c) Company shall reimburse Employee for all reasonable and necessary business
expenses incurred by him in the performance of his duties hereunder which
are properly documented and in accordance with Company's policies and
procedures as they may be amended from time to time.
(d) In addition to Base Salary, on or before January 31 of each calendar year
commencing in 2006, the Board of Directors shall establish an annual
incentive compensation program consisting of both cash and stock options to
be awarded to Employee based on corporate and individual performance during
the applicable calendar year ("Incentive Compensation"). Awards shall be
made as of January 31 of the following year. If Employee's employment is
terminated for any reason, other than for "Just Cause" as defined in
Section 13(a), during a calendar year, he shall be entitled to a pro rata
share of the cash portion of the Incentive Compensation calculated at the
end of such calendar year based on the number of months in the applicable
calendar year prior to termination. The economic terms and performance
criteria of the annual incentive compensation program shall be determined
by the Board of Directors acting in its sole discretion.
6. Illness, Incapacity or Death
(a) If, during the term of this Agreement, Employee should be prevented from
performing his duties by reason of illness or incapacity for an aggregate
of one hundred eighty (180) days in any twelve (12) month period, then
Company may immediately terminate this Agreement by ten (10) days notice in
writing, in which event this Agreement shall thereupon terminate, and the
provisions of Section 14 shall not apply and no further payments shall be
due Employee from Company other than pursuant to any employee benefit plan
or fringe benefit in which Employee participates.
(b) If Employee dies during the term of this Agreement, this Agreement shall
thereupon terminate, the provisions of Section 14 shall not apply and no
further payments shall be due Employee from Company other than pursuant to
any employee benefit plan or fringe benefit in which Employee participates.
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7. Non-Disclosure of Information
It is understood that the business of Company and any Affiliated Company is of a
confidential nature. During the period of Employee's employment by Company,
Employee may have received and/or may secure confidential information concerning
Company and any Affiliated Company which, if known to competitors thereof, would
damage Company and any Affiliated Company. Employee agrees that during and after
the term of this Agreement he will not, directly or indirectly, divulge,
disclose or appropriate to his own use, or to the use of any third party, any
secret, proprietary or confidential information or knowledge, obtained by him
during the term hereof, concerning such confidential matters of Company and any
Affiliated Company, including, but not limited to, information pertaining to
research and development, trade secrets, systems, manuals, confidential reports,
customers, suppliers, costs, pricing, methods, processes, designs, equipment
catalogs, operating procedures, equipment and methods used and preferred by
Company's customers and suppliers and fees paid by them. Confidential
information does not include any information which Employee can demonstrate was
publicly available prior to Employee's receipt of such information or thereafter
became publicly available without any action on Employee's part. Information
shall be deemed "publicly available" if it becomes a matter of public knowledge
or is contained in materials available to the public or is obtained from any
source other than Company or any Affiliated Company (or their directors,
officers, employees or outside advisors) provided that such source has not
entered into a confidentiality agreement with Company or any Affiliated Company
with respect to such information or obtained the information from an entity or
person party to a confidentiality agreement with Company or Affiliated Company.
If Employee becomes legally compelled to disclose any confidential information,
Employee will provide Company with immediate written notice so that Company may
seek a protective order or other appropriate remedy. If Company does not obtain
such protective order or other appropriate remedy, Employee will furnish only
that portion of the confidential information which Employee is legally required
to disclose.
8. Trade Secrets
Employee covenants that he shall, while employed by Company, assign and transfer
over to Company or its designee all right, title and interest in and to all
trade secrets, secret processes, inventions, improvements, patents, patent
applications, trademarks, trademark applications, copyrights, copyright
registrations, discoveries and/or other developments (hereafter "Inventions")
which he may thereafter, alone or in conjunction with others, conceive, make,
acquire, or suggest at any time which relate to the products, processes, work,
research, or other activities of Company or any Affiliated Company. Any and all
Inventions which are of a proprietary nature and which Employee may conceive,
acquire or suggest, either alone or in conjunction with others, during his
employment with Company relating to or in any way pertaining to or in any way
connected with Company's or any Affiliated Company's business, shall be the sole
and exclusive property of Company or its designee; and Employee, whenever
required to do so by Company, shall, without further compensation or
consideration, properly execute any and all applications, assignments or other
documents which Company or its designee shall deem necessary in order to apply
for and obtain Letters Patent of the United States and/or comparable rights
afforded by foreign countries for the Inventions, or in order to assign and
convey to Company or its designee the sole and exclusive right, title and any
interest in and to the Inventions. This obligation shall continue beyond the
termination of this Agreement with respect
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to Inventions conceived or made by Employee during the term of his employment by
Company, and shall be binding upon his assigns, executors, administrators and
other legal representatives.
9. Covenant Not to Compete
For purposes of Sections 9 and 10, "Affiliated Company" shall be limited to an
Affiliated Company as defined in Section 1(i) with which Employee has had
substantial involvement during the term of his employment with Company. Employee
acknowledges that the services he has rendered and is to render are of a special
and unusual character with a unique value to Company, the loss of which cannot
adequately be compensated by damages in an action at law. In view of the unique
value to Company of the services of Employee for which Company has contracted
hereunder, the substantial goodwill of the Company that Employee has obtained
and will continue to obtain and because of the confidential information to be
obtained by or disclosed to Employee, and as a material inducement to Company to
enter into this Agreement and to pay to the Employee the compensation and
benefits stated in Section 5 and other promises contained herein, Employee
covenants and agrees as follows:
(a) During Employee's term of employment with the Company and for eighteen (18)
months thereafter, without regard to the reason for separation, Employee
will not, without the prior written consent of Company, directly or
indirectly, whether as a principal, agent, officer, director, employee,
consultant or otherwise; alone or in association with any other person,
firm, corporation or other business organization, carry on, or be engaged,
employed by, concerned or take part in, or render services to, or own,
share in the earnings of or invest in the stock, bonds or other securities
of any person, firm, partnership, corporation or other business
organization (other than the ownership of less than 5% of the securities of
any public company) engaged anywhere in the Geographic Area of
Non-Competition set forth in Section 1(g), in a business which is in
competition with (i) any of the businesses carried on by Company; (ii) any
of the businesses carried on by an Affiliated Company; or (iii) any
business which Company or any Affiliated Company anticipates entering or
anticipated entering as of the date of Employee's separation as the result
of an active research and development program (each of the foregoing being
herein sometimes referred to as a "Similar Business"). Employee shall not,
directly or indirectly, solicit or divert business from the Company, or
attempt to convert to other methods of using the same or similar products
or services provided by Company. Employee acknowledges and agrees that
conduct of any said activities by any person other than Company could
accordingly constitute competition with Company and is expressly prohibited
by this Section 13.
(b) As a separate and independent covenant, Employee agrees that during
Employee's term of employment with the Company and for a period of eighteen
(18) months thereafter, without regard to the reason for separation, he
will not in any manner, directly or indirectly (except in the course of his
employment with Company), for the purpose of conducting or engaging in any
Similar Business, call upon, solicit, advise or otherwise do, or attempt to
do, business with any clients, customers or accounts of Company or any
Affiliated Company.
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(c) As a separate and independent covenant, during the term of Employee's
employment with the Company, Employee shall promptly disclose to Company
each business opportunity of a type which, based upon its prospects and
relationship to the business of Company, Company might reasonably consider
pursuing. If Employee's employment is terminated for any reason, Company
shall have the exclusive right to participate in or undertake any such
opportunity on its own behalf without any involvement by or remuneration to
Employee.
10. Covenant Not to Solicit
Employee agrees that during the term of his employment with Company and for a
period eighteen (18) months thereafter, without regard to the reason for
separation, Employee will not, directly or indirectly: (i) attempt to hire any
officer or employee of the Company or an Affiliated Company; (ii) assist in such
hiring by any other person, (iii) encourage any such employee to terminate his
employment with Company or an Affiliated Company, (iv) encourage any customer of
Company or an Affiliated Company to terminate its relationship with, as
applicable, Company or an Affiliated Company, and/or (v) encourage any supplier
of Company or Affiliated Company to terminate its relationship with, as
applicable, Company or an Affiliated Company.
11. Remedies
(a) Employee acknowledges and agrees that Company does not have any adequate
remedy for a breach or threatened breach by Employee of any of the
provisions of Sections 7, 8, 9, or 10. Company, in addition to and not in
limitation of any other rights, remedies or damages available to company at
law or in equity, shall be entitled to a temporary and permanent injunction
in order to prevent or restrain any such breach or threatened breach by
Employee or by Employee's partners, agents, representatives, servants,
employers, employees, and/or persons directly or indirectly acting for or
with him. Employee expressly waives any security that might otherwise be
required in connection with obtaining such relief.
(b) Employee agrees that, in the event he violates Sections 7, 8, 9, or 10 of
this Agreement, he will forfeit the right to further compensation or
benefits under Sections 5 or 13 of this Agreement and will be required to
reimburse the Company for any compensation or benefits, including severance
pay, that were provided to him during any period in which he was in
violation.
12. Reasonableness of Restrictions; Survival
(a) Employee acknowledges that he has carefully read and considered the
provisions of Sections 1(g), 1(h), 7, 8, 9, and 10; and having done so,
agrees that the restrictions set forth in these paragraphs, including, but
not limited to, the time period of the restrictions, the geographical areas
of the restrictions and the scope of the restrictions set forth in Sections
1(g), 1(h), 7, 8, 9, and 10 are fair and reasonable and are reasonably
required for the protection of the compelling and legitimate business
interests of Company and its officers, directors, and other employees.
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(b) Employee acknowledges that his agreement to be subject to and abide by the
provisions of Sections 7, 8, 9, and 10 are material conditions to his
employment with the Company and the Company's willingness to enter into
this Agreement.
(c) Employee acknowledges that the restrictions and limitations set forth in
this Agreement will not prevent Employee from earning a living following
his separation from employment with the Company.
(d) If any of the provisions of Sections 7, 8, 9 and/or 10 shall be held to be
invalid or unenforceable, the remaining provisions thereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts have not been included therein. If any provision of
Sections 7, 8, 9, and 10 relating to the time period, the geographical
areas of restriction and/or the scope of restrictions shall be declared by
a court of competent jurisdiction to exceed the maximum time period, areas
and/or scope such court deems reasonable and enforceable, the time period,
geographical areas of restriction and/or scope of restriction deemed
reasonable and enforceable by the court shall become and thereafter be the
maximum time period, geographical areas or scope under this Agreement.
(e) Sections 7, 8, 9, 10, 11, 12, 13 and 15 shall survive the termination of
this Agreement.
13. Termination for Just Cause, Voluntary Termination
(a) Company may terminate this Agreement with Just Cause by giving written
notice to Employee, and Company may direct Employee to cease activities
related to the Agreement and vacate the premises of Company immediately.
Just Cause shall exist if Employee:
(1) is convicted of or pleads nolo contendere to a felony;
(2) materially breaches this Agreement, provided, however, that any
breach of Sections 7, 8, 9 and/or 10 shall be deemed to be material; or
(3) engages in conduct constituting gross negligence that materially
injures the Company or conduct that constitutes a gross disregard of his
duties as set forth in Sections 1(d), 2 and 4 of this Agreement.
For purposes of this Section 13(a) only, any action, or failure to act,
shall not be considered "gross negligence" or "gross disregard" if it is
done by Employee in good faith and with reasonable belief that his action
or omission was in the best interest of the Company. Company shall provide
written notice of its intention to immediately terminate hereunder for Just
Cause, provided that in the case of termination under clauses (3) or (4)
above, Company shall give thirty (30) days' written notice of its intention
to terminate this Agreement, which notice shall state with particularity
the acts and or reasons upon which Company bases such termination, during
which 30-day period Employee shall have the opportunity to cure. If
Employee is terminated for Just Cause, he shall not be entitled to receive
any of the payments or benefits described in Section 14. Employee shall
nevertheless be bound by the covenants of Sections 7, 8, 9, and 10.
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(b) Employee may terminate his employment by giving one hundred twenty (120)
days' advance written notice to Company. Upon receipt of such one hundred
twenty (120) days' written notice from Employee, Company may, at its sole
discretion, elect to terminate Employee's employment at any time thereafter
prior to the Employee's designated last day of employment, and Company
shall continue Employee's Base Salary for the remainder of such period or
such shorter period as is mutually agreed upon. If Employee terminates his
employment or is terminated after he provides notice under this Section
13(b), Employee shall not be entitled to receive any of the payments or
benefits described in Section 14, but he shall nevertheless be bound by the
covenants of Sections 7, 8, 9, and 10.
14. Termination Without Just Cause
(a) If Company terminates Employee's employment at any time during the term of
this Agreement without Just Cause (as Just Cause is defined in Section
13(a) above) or upon expiration of the Basic term or any renewal term,
Company shall provide written notice of its intention to terminate
hereunder, and, provided Employee adheres to the covenants set forth in
Sections 7, 8, 9, and 10, timely executes a general release of claims in a
form satisfactory to Company and agrees to reasonably cooperate with the
Company, Company will pay Employee, by regular payroll, an amount based on
his Base Salary as of the date of termination, less applicable taxes, as
severance pay for the greater of (i) the unexpired portion of the Basic
Term or any renewal term, or (ii) eighteen (18) months (the "Severance
Period"). The first payment shall be made on the first regular payday
occurring after Employee's execution and delivery of the general release of
claims. In the event that the Company's working capital position (as
determined in accordance with Generally Accepted Accounting Procedures) is
less than Three Million Dollars ($3,000,000) at the time of termination,
Employee shall only be entitled to a Severance Period of nine (9) months.
(b) From the date of termination until the expiration of the Severance Period,
and subject to Employee's fulfillment of the obligations set forth in
Section 14(a) and subject to restrictions imposed under applicable tax and
other laws and applicable plan provisions, Company shall pay the cost of
continuing Employee's medical, dental, vision, and prescription drug
benefits under the Consolidated Omnibus Budget Reconciliation Act
("COBRA"). The benefits provided by the preceding sentence shall be
secondary and supplemental to any like benefits provided by a new employer.
No other employee benefits, such as retirement, pension, 401k, savings,
stock options or the like, or any other benefits, shall be continued during
the Severance Period.
Whether or not Employee is entitled to receive, or actually receives, the
payments and benefits described in this Section 14, Employee shall be bound by
the covenants of Sections 7, 8, 9, and 10 provided the Company is not in default
under this Agreement.
15. Arbitration
Whenever a dispute (other than a dispute arising under Sections 7, 8, 9, and 10
of this Agreement) arises between the parties concerning this Agreement or the
employment
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relationship, including without limitation the termination thereof, the parties
shall use their best efforts to resolve the dispute by mutual agreement. If such
a dispute cannot be so resolved, it shall be submitted to final and binding
arbitration to the exclusion of all other avenues of relief, and adjudicated
pursuant to the American Arbitration Association's Rules for Employment Disputes
then in effect. In the event that the parties are unable to agree upon an
arbitrator, the AAA shall supply the names of seven (7) arbitrators from which
the Employee and the Company shall alternatively strike names, the last name
remaining shall be the designated arbitrator. The party to strike first shall be
determined by the toss of a coin. The decision of the arbitrator must be in
writing and shall be final and binding on the parties, and judgment may be
entered on the arbitrator's award in any court having jurisdiction thereof. The
expenses of the arbitration shall be borne equally by the parties, and each
party shall be responsible for his or its own attorneys' fees. For the purposes
of this Section 15, the term "dispute" means all controversies or claims
relating to terms, conditions and privileges of employment, including without
limitation claims for breach of contract, discrimination, harassment, wrongful
discharge, misrepresentation, defamation, emotional distress or any other
personal injury, or indemnification, but excluding claims for unemployment
compensation or worker's compensation.
16. Indemnification
Without limitation of any other indemnification provided by the Company's
Certificate of Incorporation or Bylaws or action of its Board of Directors,
Company agrees to indemnify Employee for all acts and omissions of Employee,
provided that Employee acted, or omitted to act, in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of Company
and consistent with Employee's Position. In furtherance of the foregoing,
Company agrees to advance to Employee upon presentation of invoices or other
documentation, reasonable expenses (including attorneys' fees, judgments, fines
and amounts paid in settlement) actually and reasonably incurred by him in
connection with such action, suit or proceeding. To the extent that such acts or
omissions are covered under Company's then-existing insurance policies for
Directors and Officers insurance, including but not limited to, employment
practices liability insurance, Employee agrees to surrender the defense of any
related dispute to Company or its designee if so elected by Company.
17. Burden and Benefit
This Agreement shall be binding upon and shall inure to the benefit of Company
and Employee and their respective heirs, personal and legal representatives,
successors and assigns.
18. Governing Law
In view of the fact that the principal office of the Company is located in
Buffalo, New York, it is understood and agreed that the construction and
interpretation of this Agreement shall at all times and in all respects be
governed by the laws of the State of New York (without giving effect to the
principles of conflict of laws).
19. Separability
The invalidity of all or any part of any section of this Agreement shall not
render invalid the remainder of this Agreement or the remainder of such section.
If any provision of this
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Agreement is too broad as to be unenforceable, it is expressly intended by the
parties hereto that such provision shall be interpreted to be only so broad as
is enforceable.
20. Section Headings
The section headings of this Agreement are for convenience of reference only and
shall not affect the construction or interpretation of any of the provisions
hereof.
21. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
22. Entire Agreement: Amendment
This Agreement contains the entire agreement and understanding by and between
Company and Employee with respect to the employment of Employee, and no
representations, promises, agreement or understanding, written or oral, not
contained herein shall be of any force or effect. No change or modification of
this Agreement shall be valid or binding unless it is in writing and signed by
the party intended to be bound. No waiver of any provision of this Agreement
shall be valid unless it is in writing and signed by the party against whom the
waiver is sought to be enforced. No valid waiver of any provision of this
Agreement at any time shall be deemed a waiver of any other provision of this
Agreement at such time or at any other time, and Company's failure at any time
to require the performance by Employee of any of the terms hereof shall in no
way affect Company's right to thereafter enforce such terms.
23. Notices
All notices or other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given
if delivered or mailed, first class mail, postage prepaid, or delivered
personally, or by courier, to the following addresses:
If Sent to Company: NanoDynamics, Inc.
000 Xxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
If Sent to Employee: At the Address Indicated
In the Records of Company
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IN WITNESS WHEREOF, Company and Employee have duly executed this Agreement
as of the day and year set forth in Section 1(a) above.
NANODYNAMICS, INC.
/s/ Xxxxx Xxxxxxxxx
----------------------------------------
By: Xxxxx Xxxxxxxxx
Its: Chairman of the Board
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
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