Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into with the intent that it be effective as of
November 9 2005, by and between Biophan Technologies, Inc. ("BTI"), a Nevada
corporation having its principal place of business at 000 Xxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxx Xxxxxxxxx, Xxx Xxxx 00000 ("Company") and Xxxxxx X. Xxxxxxxx
("Executive"), an individual residing at 00 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx
00000.
1. EMPLOYMENT RELATIONSHIP
1.1. Executive shall be and hereby is employed initially in the capacity
as set forth in Exhibit A, in consequence whereof Executive shall
faithfully, fully, and to the best of his ability perform and render
such services and perform such duties for Company as it shall
direct, and Executive shall devote his full business time and
efforts to such services and duties. The Executive may be permitted
to engage in other revenue generating activity, provided it does not
interfere with his employment with BTI, and further provided that
Executive provides prior written notice to the Company of his
intention to engage in other business activity, and the Company
reasonably believes that such activity will not compete with the
business of the Company.
1.2. As compensation for the performance of his duties, Executive shall
receive an annual salary in the initial amount as set forth in
Exhibit A, such salary to be paid in regular periodic installments
as the parties agree, and performance bonuses as as may be agreed
from time to time by BTI and Executive.
1.3. Executive shall be entitled to stock options as set forth in Exhibit
A. In addition to the options set forth in Exhibit A, Executive
shall also be eligible to receive additional option grants, from
time to time, pursuant to the Company's Stock Option Plan.
1.4. Executive shall be entitled to vacation time as set forth in Exhibit
A.
1.5. Executive shall be entitled to participate in all fringe benefit
programs now or hereafter made available to any other persons
employed in a similar capacity.
1.6. Company shall reimburse Executive for all travel and business
expenses incurred by him, which are reasonable and necessary for
carrying on the business of the Company, and as such are approved by
the Company. Expenses shall be reimbursed after presentation by
Executive of an itemized and documented account of such expenses in
form and substance satisfactory to the Company, and after the
Company has determined that such expenditures were reasonable,
ordinary, necessary and approved.
1.7. The initial term of this Agreement shall be two (2) years, and shall
automatically renew for subsequent one (1) year terms unless this
Agreement is otherwise terminated by either party in accordance with
Section 3.
1.8. The Company shall maintain general liability insurance and a
Directors' and Officers' policy, with coverage at least comparable
to the coverage in effect on the date this Agreement is signed by
Executive. Notwithstanding any provision herein to the contrary, it
shall not be a breach by the Company of this Agreement if the
Company changes its insurance coverage, provided that the Company
delivers to Executive prior written notice of any changes to said
insurance policies that may adversely impact Executive.
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2. COVENANTS BY EXECUTIVE
2.1. Upon execution of this Agreement, Executive shall enter into the
Company's Confidential Information, Invention and Non-Competition
Agreement, a copy of which is attached hereto as Exhibit B.
3. TERMINATION/SEVERANCE
3.1. The Executive's employment hereunder may be terminated upon the
occurrence of any of the following:
(i) the death of the Executive;
(ii) termination by Executive upon thirty (30) days' notice to BTI
("Voluntary Termination"), or thirty (30) days' notice by BTI
to Executive ("Involuntary Termination");
(iii) upon the permanent disability of Executive; the term
"permanent disability" shall mean no longer being able to
perform the essential functions of the position with
reasonable accommodation;
(iv) at the Executive's discretion, within thirty (30) days after a
Change in Control in the Company. A Change of Control shall be
deemed to have occurred if:
(1) there shall be consummated any consolidation merger or
stock-for-stock exchange involving the Company or the
securities of the Company in which the holders of voting
securities of the Company immediately prior to such
consummation own, as a group, immediately after such
consummation, voting securities of the Company (or if
the Company does not survive such transaction voting
securities of the corporation surviving such
transaction) having less than fifty percent (50%) of the
total voting power in an election of directors of the
Company (or such other surviving corporation), excluding
securities received by any members of such group which
represent disproportionate percentage increases in their
shareholdings vis-a-vis the other members of such group.
(2) "approved directors" shall constitute less than a
majority of the entire Board of Directors of the Company
with "approved directors" defined to mean the members of
the Board of Directors of the Company as of the date of
this Agreement and any subsequently elected members who
shall be nominated or approved by a majority of the
approved directors on the Board of the Company prior to
such election, or
(3) there shall be consummated any sale, lease, exchange or
other transfer (in one transaction or a series of
related transactions, excluding any transaction
described in subdivision (1), above), of all, or
substantially all, of the assets of the Company to a
party which is not controlled by or under common control
with the Company.
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(v) at the Executive's discretion, upon a significant change in
the Executive's job duties or responsibilities, where the
phrase "Significant Change In The Executive's Job Duties Or
Responsibilities" shall mean a material change in the type of
work Executive performs;
(vi) termination of the Executive's employment hereunder by the
Company at any time for "cause", such termination to take
effect immediately upon written notice from the Company to the
Executive.
3.2. Cause. For all purposes of this Agreement, the term "cause" shall
mean the occurrence of one or more of the following events (i) the
Executive willfully refuses to obey reasonable and lawful orders of
the CEO or the Board of Directors; (ii) the Executive has willfully
breached or habitually neglected his duty and has failed to correct
his behavior within five (5) days following receipt of written
notice of such concerns; (iii) the Executive has been convicted in a
court of law of a crime or offense which involves dishonesty or
fraud; (iv) the Executive has breached any of the Executive's
obligations pursuant to this Agreement; or (v) the Executive has
committed an intentional tort against the Company or its Executives.
3.3. Severance for Involuntary Termination; Disability or Significant
Changes in Job Responsibilities. In the event of Involuntary
Termination of the Executive, Disability or Significant Changes in
Job Responsibilities, the Company will pay the Executive (i) the
unpaid amount of the Executive's Base Salary through the date of
termination as set forth in Exhibit A hereof, as amended from time
to time; and (ii) bonus compensation, if any, assuming written goals
required by the bonus plan are met, or would likely be met if
Executive remained employed. The details of the bonus payment and
when it is earned and how it is calculated will be outlined in
separate agreement to be agreed upon by the Executive and the Board
of Directors. In addition the Executive shall have three (3) months
from the date of termination to exercise his rights to purchase
stock in the Company pursuant to any vested but unexercised option
or warrant agreement. All payments made to the Executive hereunder
will be subject to all applicable employment and withholding taxes.
3.4. Severance for Change in Control. In the event of termination of
employment of the Executive due to a Change in Control, the Company
will pay the Executive (i) the unpaid amount of the Executive's Base
Salary through the date of termination as set forth in Exhibit A, as
amended from time to time; (ii) bonus compensation, if any, assuming
written goals required by the bonus plan are met, or would likely be
met if Executive remained employed (the details of the bonus payment
and when it is earned and how it is calculated will be outlined in
separate agreement to be agreed upon by the Executive and the Board
of Directors); and (iii) a severance payment equal to six (6) months
of his then current salary, in three (3) equal installments with the
first installment due and payable within fifteen (15) days following
termination' the second installment due and payable within thirty
(30) days following termination; and the third installment due and
payable within sixty (60) days following termination. In addition,
the Executive will be immediately vested in any warrants, options,
retirement plans or agreements then in effect and the Company will
continue the Executive's medical, dental, and vision insurance for
the six (6) month period. All payments made to the Executive
hereunder will be subject to all applicable employment and
withholding taxes.
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3.5. Termination for Cause. In the event of the termination for Cause of
the Executive, all unexercised warrants and options, whether or not
vested, shall be canceled and the Executive will not be eligible for
severance payments. The Company shall pay to the Executive the
unpaid amount of the Executive's Base Salary through the date of
termination as set forth in Exhibit A.
3.6. Voluntary Termination. In the event of the Voluntary Termination of
the Executive, all unvested warrants and options shall be canceled,
and the Executive shall have three (3) months from the date of
termination to exercise his rights with respect to any unexercised
but vested options. The Executive will not be eligible for severance
payments. The Company shall pay to the Executive the unpaid amount
of the Executive's Base Salary through the date of termination as
set forth in Exhibit A.
3.7. The provisions of this Section 3 shall survive termination of this
Agreement for any reason.
4. MISCELLANEOUS PROVISIONS
4.1. Executive hereby represents and warrants that he is free to make
this Agreement, and the making hereof and/or performance hereunder
by him will not violate the legal and/or equitable rights of any
third party.
4.2. This Agreement and the Employee Confidential Information, Invention
and Non-Competition Agreement embody the entire understanding of the
parties, and there are no promises, terms, covenants, conditions or
obligations or other written, expressed or implied agreements other
than those contained herein. No change or modification of this
Agreement shall be valid unless the same shall be in writing and
signed by both parties hereto.
4.3. The waiver by either party hereto of a breach of any provision of
this Agreement shall not operate as or be construed as a waiver of
any subsequent breach of this Agreement.
4.4. The employment by Company or Executive is being effected because of
Executive's special capabilities and qualifications, and all of his
rights, benefits and duties hereunder are, therefore, not assignable
or transferable in any manner.
4.5. Except as set forth in the Employee Confidential Information,
Invention and Non-Competition Agreement, any controversy, claim, or
dispute arising out of or relating to this Agreement, or breach of
any provision of this Agreement, shall be settled by arbitration,
and, in connection therewith, the Company and Executive hereto agree
that:
A. Either Executive or Company may initiate arbitration of a
claim by giving written notice to the other party
("Arbitration Notice").
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B. Within ten (10) days after the date on which the Arbitration
Notice is given, Executive and Company shall agree upon a
single arbitrator or, if they fail to do so for any reason, at
any time after the expiration of such ten (10) day period,
either party may request the American Arbitration Association
to designate an arbitrator. Any arbitration proceeding shall
be held in the County of Monroe, the State of New York.
C. The arbitrator shall promptly consider the facts in dispute
and resolve the same in accordance with the Rules of the
Arbitration Association (or any successor organization if the
American Arbitration Association no longer exists). The
decision of the arbitrator shall be final, conclusive, and
binding upon Company and Executive.
D. The fees and expenses of the arbitrator in any such proceeding
(including the fees and expenses of any person retained by the
arbitrator) and the fees and expenses of counsel for Executive
and Company shall be borne by the respective parties as
follows:
(i) The party that did not initiate such proceeding shall
bear the portion of such fees and expenses represented
by the fraction having a numerator equal to the net
dollar amount of any recovery actually awarded to the
initiating party by the arbitrator in such proceeding
and having a denominator equal to the maximum aggregate
dollar amount originally sought to be recovered by the
initiating party in connection with the claim being
arbitrated; and
(ii) The initiating party shall bear the remaining portion of
such fees and expenses.
In the event that multiple claims shall be involved in any such
proceeding, the fees and expenses of such proceeding shall be
allocated as provided above based upon the outcome of the claim
having the largest dollar amount originally sought to be recovered.
E. The arbitrator shall have the power to grant injunctive relief
and other provisional remedies and to issue such orders as may
be deemed necessary in connection therewith.
4.6. If any provision of this Agreement is unenforceable, the remaining
provisions shall, to the extent possible, be carried into effect,
taking into account the general purposes and spirit of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
day and year first above written.
COMPANY EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxx, CEO Xxxxxx X. Xxxxxxxx
EXHIBIT A
Position/Job Title:
Vice President, Treasurer, Chief Financial Officer and Secretary
Annual Salary:
$ 180,000, payable bi-weekly.
Stock Options:
Executive shall receive a non-qualified option to purchase up to 600,000
common shares with an exercise price equal to the Fair Market Value of the
common stock on the first day of his employment. The Option may be
exercised:
(a) with respect to all or any part of 100,000 of the Shares covered
hereby at any time on or after the date of grant,
(b) with respect to all or any part of 100,000 of the Shares covered
hereby at any time on or after June 1, 2006,
(c) with respect to all or any part of 100,000 of the Shares covered
hereby at any time on or after December 1, 2006,
(d) with respect to all or any part of 100,000 of the Shares covered
hereby at any time on or after June 1, 2007,
(e) with respect to all or any part of 100,000 the Shares covered hereby
at any time on or after December 1, 2007,
(f) with respect to all or any part of 100,000 the Shares covered hereby
at any time on or after June 1, 2008.
The option shall expire ten (10) years from the date of grant.
Healthcare Plan:
Executive will receive the Company's full health care plan, including
dental and vision.
Paid Vacation:
Four (4) weeks
Paid Holidays:
Eleven (11) paid holidays according to the Company's standard holiday
schedule.
EXHIBIT B
Employee Confidential Information, Invention and Non-Competition Agreement
For good and valuable consideration, including my employment by Biophan
Technologies, Inc. (the "Company") or its successors and assigns, and any of its
present or future subsidiaries, or organizations controlled by, controlling, or
under common control with it, I agree as follows:
1. That the Company operates in a competitive environment, and that its success
is due in part to the competitive advantage afforded it by its unique and
proprietary trade secrets and other confidential information relating to
biomedical research and technology development as well as other business
processes and product technologies, in which the Company has invested (and plans
to continue investing) great time, effort, skill and expense. I understand that
the Company would be unwilling to employ and compensate me, but for the
restrictions of this Agreement. I acknowledge that my employment by the Company
may include inventing, discovering, initiating, or contributing to Confidential
or Proprietary Information as an integral part thereof.
2. At all times before and after the termination of my service (for any reason
by the Company or by me), I will keep all Confidential Information (as defined
below) in strict confidence and secrecy, and not disclose such Confidential
Information to anyone, and not use the Confidential Information in any way
outside of my assigned responsibilities for the Company, except as expressly
pre-authorized by the Company in writing. "Confidential Information" means
information or an idea that: (a) a competitor may secure a significant
competitive advantage over the Company by using; (b) the Company has not
disclosed to others outside the Company without restriction; (c) the Company
considers Confidential; (d) is not available in some form to others outside the
Company; or (e) the Executive did not know the information before becoming
employed.
3. During the period of my service with the Company, and for a period of one (1)
year after the termination of such service, I agree not to compete with the
Company, solicit any clients of the Company or otherwise engage, assist, or
participate directly or indirectly in the same business or businesses as that or
those conducted by the Company, involving the same or similar products or
services in any jurisdiction in which the Company is doing business. In
addition, I agree not to engage, directly or indirectly, as an owner, promoter,
consultant, officer, director, employee or substantial stockholder or have any
material investment or other substantial equity interest in any business entity
that so competes with the Company. I agree that this restriction is reasonable
in time and scope and will not unduly restrict me from earning a livelihood.
4. For a period of one (1) year following termination of my service with the
Company, I agree that I shall not: (a) persuade or attempt to persuade any
employee of the Company to leave the employ of the Company; (b) solicit any
client of the Company with respect to any products of the type offered by the
Company; (c) provide any services to any client of the Company of the type
offered by the Company; or (d) assist, directly or indirectly, any other party
in soliciting any client of the Company with respect to any products or
providing any services to any client of the Company of the type offered by the
Company. I agree that this restriction is reasonable in time and scope and will
not unduly restrict me from earning a livelihood.
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5. To promptly disclose to the Company all inventions, copyrightable works and
other intellectual property that I have or will conceive, create or develop
during the term of my employment. I further agree to transfer to the Company, or
its designee, all rights in the Confidential Information or in any expression of
the Confidential Information, in any invention, copyright or other intellectual
property, whether or not patented or patentable, relating to the Company's
business, made, conceived or developed by me, alone or with others, while I have
been or continue to be employed by the Company, whether or not in connection
with my assigned duties and whether or not developed with the use of Company
personnel, facilities, equipment or other resources. I hereby irrevocably assign
to the Company or its designee all patent, copyright and other ownership rights
in all such inventions, copyrightable works and other intellectual property, and
agree (before and after termination of my employment) to execute any and all
papers and documents and to provide reasonable assistance from time to time as
the Company may consider to be necessary or convenient in obtaining or
perfecting any and all of such rights for itself or its designee. If after
termination of my employment, these responsibilities are substantial in nature,
they will be compensated at prevailing consulting fee levels, and will be
coordinated with any new employment time demands. I further agree to request, in
writing, a release from the Company for any inventions or discoveries that I
wish to pursue personally and for which the Company determines that it has no
present or future interest in such invention or discovery, and that I shall take
no action contrary to the Company's interests in any such inventions or
discoveries until I receive a written response to my request. Failure to provide
a written response within three (3) months shall constitute a release by the
Company. In the event the Company is unable for any reason to secure my
signature to any lawful and necessary document required to apply for or execute
any patent applications or copyright registrations with respect to such an
invention or copyrightable work (including renewals, extensions, continuations,
divisions or continuations in part thereof), I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents, as my agents
and attorneys-in-fact to act for and on my behalf and, instead of me, to execute
and file any such application or registration and to do all their lawfully
permitted acts to further the prosecution and issuance of patents or copyright
registration thereon with the same legal force and effect as if executed by me.
6. To return to the Company all notes, records, lists, files and documentation
(in hard copy or machine readable form) supplied to me by the Company or its
business associates, or created by me in the course of or in connection with my
employment, or otherwise used, created, collected, or controlled by me while
employed by the Company, upon request by the Company, and, in any event, upon
termination of my employment. I will do this without keeping any copies
(including copies on any computer or data storage media). However, regardless of
any other provision herein, I will be allowed to retain a copy, for personal
non-business use, of any speeches, presentations, or articles prepared before or
during the course of my employment.
7. I further warrant and represent to the Company that I am not subject to any
agreement or university policy inconsistent with this Agreement regarding
inventions or discoveries set forth herein. I further agree to refrain from
engaging in any other employment or outside business interest without the prior
written consent of the Company, excluding the following interests in which I
will continue to be engaged prior to beginning this employment:
a. N/A
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b.
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c.
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Requires Acknowledgement by Officer of Company ____/____/20___
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8. This Agreement shall benefit and may be enforced by the Company, its
successors or assigns, and shall bind me and any successors in interest, and may
not be changed in whole or in part except in a writing signed by an authorized
officer of the Company and me.
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This Agreement is governed by internal New York law. Any litigation commenced by
a party and relating to this Agreement or its subject matter shall be within the
exclusive jurisdiction of the courts of the State of New York, Monroe County, or
if the jurisdiction prerequisites exist at the time, the Federal Courts of New
York with venue to be in the Western District of New York, and the parties
hereby waive any right in such litigation to object to personal jurisdiction and
venue. The Company shall be entitled to preliminary, temporary and permanent
injunctive relief to restrain any violation of this Agreement by me, in addition
to damages and other remedies.
The Company may notify anyone subsequently employing or retaining me or
evidencing any intention to employ or retain me as to the existence and
provisions of this Agreement. No waiver of any provision of this Agreement (or
any similar agreement with any other person) shall constitute or imply any
continuing, other or further waiver, and the Company shall be free to reinstate
the waived term at any time and to enforce all other provisions of this
Agreement at its sole discretion. This is the entire agreement concerning its
subject matter. I understand that my employment with the Company may be
terminated by either me or the Company at any time in accordance with the terms
of my Employment Agreement, to which this document is attached.
Having read and understood this Agreement, I have willingly and voluntarily
executed and unconditionally delivered this Agreement to the Company, effective
as of the 9th day of November, 2005.
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
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Signature
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