AMENDED AND RESTATED EMPLOYMENT AGREEMENT OF THOMAS P. FINN
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
OF
XXXXXX X. XXXX
AMENDED
AND RESTATED AGREEMENT (“Agreement”) dated as of August 13, 2007 by and between
Advance Nanotech, Inc., a Delaware corporation (the "Company"), and Xxxxxx
Xxxx
(the "Executive").
WHEREAS,
Company and Executive previously entered into an Employment Agreement, dated
as
of February 28, 2005 (“Original Employment Agreement”);
WHEREAS,
Company and Executive desire to amend and restate the Original Employment
Agreement as provided herein;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained and the
mutual benefits herein provided, the receipt and sufficiency of which is hereby
acknowledged, the Company and Executive agree to amend, restate and supersede
the Original Employment Agreement as follows:
1. Representations
and Warranties.
The
Executive represents and warrants to the Company that Executive is not bound
by
any restrictive covenants and has no prior or other obligations or commitments
of any kind that would in any way prevent, restrict, hinder or interfere with
Executive's acceptance of continued employment or the performance of all duties
and services hereunder to the fullest extent of the Executive's ability and
knowledge. The Executive agrees to indemnify and hold harmless the Company
for
any liability the Company may incur as the result of the existence of any such
covenants, obligations or commitments.
2. Term
of Employment.
The
Company will continue to employ the Executive and the Executive accepts
continued employment by the Company on the terms and conditions herein contained
for a period (the "Employment Period") provided in paragraph 5.
3. Duties
and Functions.
(a) (1) The
Executive shall be employed as Chief Financial Officer of the Company. The
Executive shall report directly to the Chief Executive Officer of the Company
and to the Board of Directors (the “Board”) of the Company.
(2) The
Executive agrees to undertake the duties and responsibilities inherent in the
position of Chief Financial Officer of the Company. The Executive agrees to
abide by the rules, regulations, instructions, personnel practices and policies
of the Company of which the Executive has notice and any change thereof which
may be adopted at any time by the Company.
(b) During
the Employment Period, the Executive will not engage in consulting work or
any
trade or business that is a competitor of the Company or to the extent that
the
same significantly interferes with the performance of the Executive’s duties
hereunder, it being understood, however, that the Executive will be performing
assignments for, and may be an officer or director of, entities in which the
Company has an equity interest, without additional compensation unless otherwise
specifically agreed. In no event shall it be a violation of this Agreement
for
the Executive to (i) serve on corporate, civic or charitable boards or
committees or perform functions for such organizations, (ii) deliver lectures,
fulfill speaking engagements or teach at educational institutions, or (iii)
manage personal investments, so long as such activities do not significantly
interfere with the performance of the Executive's responsibilities to the
Company in accordance with this Agreement. Subject to customary business travel,
the Executive's duties ordinarily will be performed by the Executive in the
course of the Executive's regular presence during normal working hours on
business days Monday through Friday the Company’s principal executive offices at
000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000, or at such other location to which the same may be relocated
within a 40 mile radius.
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4. Compensation.
(a) Base
Salary:
As
compensation for the Executive’s services to the Company hereunder, during the
Executive's employment as Chief Financial Officer of the Company, the Company
agrees to pay the Executive a base salary at the rate of Two Hundred and Fifty
Thousand Dollars ($250,000) per annum (pro rata for periods of less than an
entire calendar year), payable in equal installments in accordance with the
Company's normal payroll schedule but in no event less often than once per
month
on substantially the same day each month. The Company may withhold from any
amounts payable under this Agreement such federal, state, local or other taxes
as shall be required to be withheld pursuant to any applicable law or
regulation..
(b) Options:
Executive shall be eligible to receive stock options/equity grants in securities
of the Company from time to time, which grants, if any, shall be at the
discretion of the Board or its designee (including, without limitation, the
Compensation Committee), provided that the Board or its designee shall consider
the granting of such compensation at least annually. The terms and conditions
governing eligibility for, entitlement to, and receipt of any options or other
form of equity in the Company shall be governed by the Company’s incentive
compensation programs, as the same may exist in writing from time to time.
Unless otherwise agreed in writing, such options, and the shares underlying
such
options, are not registered under federal, state or other securities laws,
and
shall be “restricted” within the meaning of applicable securities laws, and
legended accordingly. The Company shall have no obligation to register such
options, and shall have no obligation to register the shares underlying such
options; provided,
that
the Executive shall have registration rights with respect to the shares
underlying such options which are substantially the same as the registration
rights of any other Executive or director of the Company in respect of the
Company’s shares.
(c) Other
Expenses:
In
addition to the compensation provided for above, the Company agrees to pay
or to
reimburse the Executive in timely fashion for all reasonable, ordinary and
necessary, properly vouchered, client-related business or entertainment expenses
incurred in the performance of the Executive’s services hereunder in accordance
with Company policy in effect from time to time, provided, however, that the
amount available to the Executive for such travel, entertainment and other
expenses may require advance approval by President or Chief Executive Officer
of
the Company or such officer’s designee(s) in accordance with the Company’s
reimbursement policies, as the same may be established by the Company’s Board of
Directors from time to time. The Executive shall submit reasonable
substantiation in the form of vouchers and receipts for all expenses for which
reimbursement is sought.
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(d) Commuting:
The
Company will pay the Executive an additional Five Hundred Dollars ($500) per
month, in arrears, as a non-accountable reimbursement for commuting
expenses.
(e) Vacation:
The
Executive shall be allowed up to the greater of Four (4) weeks of paid vacation
during each calendar year or such greater amount of paid vacation as is
generally permitted by the Company to its senior executives, with no carry-over
of accrued vacation from year to year.
(f) Medical
and Dental Insurance:
(i) As
promptly as practicable and, in any event, within 45 days of the date of this
Agreement, the Company, at its expense, subject to availability, shall
establish, and shall thereafter maintain insurance plans to provide the
Executive and the Executive’s spouse and the Executive’s children of age 25 or
younger with medical (including such customary items as preventive care,
diagnostic services, hospital care, physician charges, emergency care,
maternity, infertility/sterilization, organ transplants, extended care services,
mental health and substance abuse, miscellaneous items and prescription drugs)
and dental insurance. Subject to availability, it is contemplated that the
medical insurance shall be on a Preferred Provider Organization (PPO) basis,
with a small annual deductible and payment of 100% of the allowed benefit amount
after payment of a small copay (approximately $25-$50 in most cases) for
in-network matters, and a small annual deductible and payment of approximately
60-80% of the allowed benefit amount for out-of-network matters, with no
requirement to select a primary care physician or obtain a referral to see
a
specialist. Notwithstanding the foregoing, coverage shall be subject to
customary required physicals to the extent required by the plan provider and
to
customary determinations of insurability by providers. Subject to availability,
it is contemplated that the dental insurance shall be on a Passive Preferred
Provider Organization basis, with a small annual deductible, with no office
visit copay and an annual benefit maximum of $2000 or less, with insurance
reimbursements ranging up to approximately 100% for preventive, up to
approximately 80% for basic procedures, and up to approximately 50% for major
procedures. Furthermore, in no event during the term of this Agreement shall
the
Company be required to pay premiums per month for such medical and dental
coverage of the Executive and the Executive’s family group in excess of One
Hundred Fifty Percent (150%) of the premiums paid by the Company at the
inception of such coverage pursuant to this Agreement. By way of example, if
the
Company paid One Dollar ($1.00) in premiums at the outset, it would not be
obligated to pay more than One Dollar and Fifty Cents ($1.50) in premiums per
month during this term of this Agreement.
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(ii) During
any period from the commencement date of the term of employment under this
Agreement in which the medical and dental plans have not yet been established
or
are not being maintained by the Company, the Company shall reimburse the
Executive for the monthly premiums paid by the Executive for comparable
coverage, up to $1200.00 per month and no more.
(g) Other
Compensation: The
Company agrees to issue the Executive 350,000 options for common stock in the
Company with: a cashless exercise provision; a strike price of $0.25; and a
vesting schedule of 87,500 options per quarter commencing August 13, 2007.
The
terms and conditions governing eligibility for, entitlement to, and receipt
of
any options or other form of equity in the Company shall be governed by the
Company’s incentive compensation programs, as the same may exist in writing from
time to time. Such options, and the shares underlying such options, are not
registered under federal, state or other securities laws, and shall be
“restricted” within the meaning of applicable securities laws, and legended
accordingly. The Company shall have no obligation to register such options,
and
shall have no obligation to register the shares underlying such options;
provided, that the Executive shall have registration rights with respect to
the
shares underlying such options which are substantially the same as the
registration rights of any other Executive or director of the Company in respect
of the Company’s shares. Additionally, the Company agrees to issue the Executive
650,000 restricted common stock shares which will become vested quarterly
pro-rata over two years commencing on August 13, 2007.
(h) Other
Company Benefits:
In
addition to the Executive’s compensation provided by the foregoing, the
Executive shall be entitled to participate in the other benefit programs, if
any, available generally to executives of the Company generally pursuant to
Company programs, including, by way of illustration, personal leave, paid
holidays, sick leave, bonus, profit-sharing, stock option plans, retirement,
401K, disability, dental, vision, group sickness, accident, life or health
insurance programs of the Company which may now or, if not terminated, shall
hereafter be in effect, or in any other or additional such programs which may
be
established by the Company, as and to the extent any such programs are or may
from time to time be in effect, as determined by the Company and
the
terms hereof, subject to the applicable terms and conditions of the benefit
plans in effect at that time.
5. Employment
Period; Termination.
(a) Commencement.
The
Executive's employment shall commence on August 13, 2007 (the “Commencement
Date”), and shall continue thereafter unabated until terminated by either party
pursuant to the terms of this Agreement.
(b) Employment
Period.
The
Employment Period shall commence on the Commencement Date and shall continue
until terminated upon the earlier to occur of the following events: (i) the
close of business on the Second (2nd) anniversary of the Commencement Date
(the
“Initial Term”) or (ii) the death or permanent disability (as defined in
Paragraph 5 (h)) of the Executive, provided,
however,
that,
on the Second (2nd) anniversary of the Commencement Date, and on every
subsequent annual anniversary, and unless either party has given the other
party
written notice at least ninety (90) days prior to the such anniversary date,
the
term of this Agreement and the Employment Period shall be renewed for a term
ending one (1) year subsequent to such date, unless sooner terminated as
provided herein (the “Renewal Term”)may be renewed by mutual agreement of the
parties (any such renewal period being hereinafter referred to as a “Renewal
Term”). The Initial Term plus any Renewal Terms shall be included in the
“Employment Period.”
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(c) Termination
By Executive Without Good Reason.
Notwithstanding the provisions of paragraphs 5(a) and (b) above, the Executive
may terminate the employment relationship at any time pursuant to this paragraph
5(c) for any reason or no reason by giving the Company written notice at least
one hundred eighty (180) days prior to the effective date of termination. The
Company, at its election, may (i) require Executive to continue to perform
the
Executive’s duties hereunder for the full one hundred eighty (180) day notice
period, or (ii) terminate Executive’s employment at any time during such one
hundred eighty (180) day notice period. An election by the Company to terminate
Executive’s employment at any time during such one hundred eighty (180) day
notice period shall not be deemed to be a termination of Executive’s employment
by the Company without Cause or a termination of Executive’s employment by the
Company for Cause, but shall be treated as a Termination by Executive Without
Good Reason. If the Executive's employment is terminated by the Company pursuant
to this paragraph 5(c) before the one hundred eighty (180) day notice period
has
expired without cause, the Executive shall continue to receive the Executive’s
base salary and bonus, and the Company shall continue medical and dental
benefits for the Executive and the Executive’s family, by paying the premium for
health insurance continuation coverage under COBRA for the Executive and the
Executive’s eligible family to the extent the Executive elects COBRA coverage
(or continue to contribute the employer portion of the premium normally paid
by
the Company for its current employees), for a period of time (the “Severance
Period”) which shall be determined as set forth in the next sentence. The
Severance Period under those circumstances shall consist of the unexpired
balance of the one hundred eighty day notice period pursuant to this paragraph
5(c). The
sum,
if any, payable to the Executive in respect of the Severance Period shall be
payable in equal monthly installments on the Fifteenth (15th)
day of
each month in the Severance Period. All other compensation and benefits paid
by
the Company to the Executive shall cease upon the Executive’s last day of
employment, except such benefits as may be required to be extended under
applicable state or Federal law. The Executive acknowledges and agrees that
the
non-compete restrictions set forth in Section 7 of this Employment Agreement
will remain in full force and effect for the six (6) month period after the
termination of the Executive’s employment. Furthermore, the obligations imposed
on Executive with respect to confidentiality, non-disclosure and assignment
of
rights to inventions or developments in this Agreement or any other agreement
executed by the parties shall continue, notwithstanding the termination of
the
employment relationship between the parties.
The
salary, bonus (if any) and health insurance benefits to be provided under this
paragraph 5(c) are sometimes hereinafter referred to as "Termination
Compensation." The Executive shall not be entitled to any Termination
Compensation pursuant to this paragraph 5(c) unless the Executive executes
and
delivers to the Company after a notice of termination a release in form and
substance reasonably satisfactory to the Company by which the Executive releases
the Company from any obligations and liabilities of any type whatsoever under
this Agreement, except for the Company's obligations with respect to the
Termination Compensation, which release shall not affect the Executive’s right
to indemnification, if any, for actions taken within the scope of the
Executive’s employment or the Executive’s rights in respect of the Executive’s
vested stock options, if any. The parties hereto acknowledge that the
Termination Compensation to be provided under this paragraph 5(c) is to be
provided in consideration for the above-specified release. The Executive will
not be entitled to and shall not receive any other compensation or benefits
of
any type following the effective date of termination, except such benefits
as
may be required to be extended under applicable state or Federal
law.
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(d) Termination
by Executive for “Good Reason”.
Subject
to the provisions outlined below, at
any
time after the date Executive commences employment under this Agreement, upon
One Hundred Eighty (180) days’ written notice to the Company of the Executive’s
intent to terminate the Agreement, Executive shall have the right to terminate
the Executive’s employment under this Agreement for “Good Reason” (as defined
below). For purposes of this Agreement, “Good Reason” is defined as any one of
the following: (i) Company’s material breach of this Agreement; or (ii)
relocation of the Company’s headquarters and/or Executive’s regular work address
to a location which is more than Forty (40) miles from the current principal
address at which the Executive is required to perform the Executive’s duties
without Executive’s prior written consent; provided,
however,
that it
shall not constitute Good Reason unless Executive shall have provided the
Company with written notice of its alleged actions constituting Good Reason
(which notice shall specify in reasonable detail the particulars of such Good
Reason) and Company has not cured any such alleged Good Reason or substantially
commenced its effort to cure such breach within Seven (7) days of Company’s
receipt of such written notice and thereafter continues to pursue such cure
with
reasonable diligence. A
termination for Good Reason shall be treated for all severance purposes as
a
Termination by the Company “Without Cause,” and Executive shall entitled to
receive all of the payments and benefits identified in paragraph 5(f) on the
terms and conditions set forth in paragraph 5(f).
(e) Termination
By Company For Cause.
If the
Executive's employment is terminated for “cause," the Executive will not be
entitled to and shall not receive any compensation or benefits of any type
following the effective date of termination, except such benefits as may be
required to be extended under applicable state or Federal law. As used in this
Agreement, the term "cause" shall include but not necessarily be limited to
(i)
conviction of a felony or a crime involving moral turpitude; (ii) engagement
in
conduct which has the effect, or might reasonably be expected to have the effect
of bringing disrepute to the Company’s reputation or hold the Company or the
Executive up to public ridicule; (iii) fraud on or misappropriation of any
funds
or property of the Company, any affiliate, customer or vendor; (iv) willful
violation of any securities law, rule or regulation (other than minor traffic
violations or similar offenses); (v) personal dishonesty, or breach of fiduciary
duty which involves personal profit; (vi) gross incompetence in the performance
of the Executive’s duties under this Agreement; (vii) willful misconduct in
connection with the Executive’s duties; (viii) habitual absenteeism or
inattention to the Executive’s duties; (ix) chronic use of alcohol, drugs or
other similar substances (other than pursuant to medical prescriptions and
under
doctors’ supervision for treatment of legitimate illnesses or conditions) which
affects the Executive’s work performance; (x) willful violation of any Company
rule, regulation, procedure or policy which has, or may reasonably be expected
to have, a material adverse effect on the Company; (xi) engaging in behavior
that would constitute grounds for liability for harassment (as proscribed by
the
U.S. Equal Employment Opportunity Commission Guidelines or any other applicable
state or local regulatory body) or other egregious conduct that violates laws
governing the workplace; or (xii) material breach of any material provision
of
any employment, non-disclosure, non-competition, non-solicitation or other
similar agreement executed by the Executive for the benefit of the Company
(including, without limitation, such provisions within this Agreement) or of
any
material Company policy, all as determined by the Board, which determination
will be conclusive. Notwithstanding anything to the contrary, employment may
not
be terminated for “cause” in the event that the Executive becomes permanently
disabled as set forth in paragraph 5(h) or dies. Anything
herein to the contrary notwithstanding, the Company shall give the Executive
written notice prior to terminating the Executive's employment for “cause” under
any circumstance in which the conduct constituting “cause” is reasonably open to
cure (for instance, by way of illustration, where the “cause” does not involve a
violation of trust or otherwise adversely affect the relationship between the
Executive and the Company on a going-forward basis or involve commission of
an
act, such as a felony, or an unauthorized disclosure of confidential material,
or an act which may constitute illegal harassment under laws governing the
workplace, which can’t be undone), setting forth in reasonable detail the nature
of any alleged breach and the conduct required to cure such breach. If, and
only
if, the nature of the breach is such that the breach is reasonably open to
cure,
then the Executive shall have fourteen (14) days from the giving of such notice
within which to cure.
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The
Executive acknowledges and agrees that the non-compete restrictions set forth
in
Section 7 of this Employment Agreement will remain in full force and effect
for
the Six (6) month period subsequent to the Executive’s termination for cause.
Furthermore, the obligations imposed on Executive with respect to
confidentiality, non-disclosure and assignment of rights to inventions or
developments in this Agreement or any other agreement executed by the parties
shall continue, notwithstanding the termination of the employment relationship
between the parties.
(f) Termination
By Company Without Cause.
The
Company shall retain the right to terminate the Executive without cause or
prior
written notice, although the Company may give notice pursuant to this paragraph
5(f) in its sole discretion. If the Executive's employment is terminated by
the
Company without cause pursuant to this paragraph 5(f), the Executive shall
continue to receive the Executive’s base salary and bonus, and the Company shall
continue medical and dental benefits for the Executive and the Executive’s
family, by paying the premium for health insurance continuation coverage under
COBRA for the Executive and the Executive’s eligible family to the extent the
Executive elects COBRA coverage (or continue to contribute the employer portion
of the premium normally paid by the Company for its current employees), for
a
Severance Period which shall be determined as set forth in the next sentence.
The Severance Period shall consist of the lesser of one hundred eighty days
from
the earlier to occur of the date (i) notice of termination is given pursuant
to
this paragraph 5(f) or (ii) the date on which employment actually terminates
pursuant to this paragraph 5(f). The Executive acknowledges and agrees that
the
non-compete restrictions set forth in Section 7 of this Employment Agreement
will remain in full force and effect for the greater of the Severance Period
or
the Six (6) month period subsequent to the Executive’s termination. The sum, if
any, payable to the Executive in respect of the Severance Period shall be
payable in equal monthly installments on the Fifteenth (15th)
day of
each month in the Severance Period. Furthermore, the obligations imposed on
Executive with respect to confidentiality, non-disclosure and assignment of
rights to inventions or developments in this Agreement or any other agreement
executed by the parties shall continue, notwithstanding the termination of
the
employment relationship between the parties.
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The
salary, bonus (if any) and health insurance benefits to be provided under this
paragraph 5(f) are sometimes hereinafter referred to as "Termination
Compensation." The Executive shall not be entitled to any Termination
Compensation unless the Executive executes and delivers to the Company after
a
notice of termination a release in form and substance reasonably satisfactory
to
the Company by which the Executive releases the Company from any obligations
and
liabilities of any type whatsoever under this Agreement, except for the
Company's obligations with respect to the Termination Compensation, which
release shall not affect the Executive’s right to indemnification, if any, for
actions taken within the scope of the Executive’s employment or the Executive’s
rights in respect of the Executive’s vested stock options, if any. The parties
hereto acknowledge that the Termination Compensation to be provided under this
paragraph 5(f) is to be provided in consideration for the above-specified
release. The Executive will not be entitled to and shall not receive any other
compensation or benefits of any type following the effective date of
termination, except such benefits as may be required to be extended under
applicable state or Federal law.
(g) Termination
By Virtue of A Change In Control.
The
Executive may elect in writing to declare that he has been terminated as a
result of a Change in Control (as hereafter defined), at which time the
Executive shall be entitled to: (i) a lump sum severance payment equal to his
base salary earned over the preceding twelve-month period; and (ii) a sum
sufficient to pay for the continuation of his medical and dental insurance
with
all of his then current benefits for a like twelve-month period. For the purpose
of this provision, the term “Change in Control” includes: (i) a buy-out of the
Company whereby more than 50% in the aggregate of the ownership interests of
the
Company becomes beneficially owned by persons not now holding an ownership
interest; (ii) the liquidation or dissolution of the Company; or (iii) the
sale
or other disposition of all or substantially all of the Company’s
assets.
(h) Termination
for Executive’s Permanent Disability.
To the
extent permissible under applicable law, in the event the Executive becomes
permanently disabled during employment with the Company, the Company may
terminate this Agreement by giving thirty (30) days notice to the Executive
of
its intent to terminate, and unless the Executive resumes performance of the
duties set forth in Paragraph 3 within five (5) days of the date of the notice
and continues performance for the remainder of the notice period, this Agreement
shall terminate at the end of the thirty (30) day period. "Permanently disabled"
for the purposes of this Agreement means the inability, due to physical or
mental ill health, to perform the essential functions of Executive's job, with
a
reasonable accommodation, for ninety (90) days during any one employment year
irrespective of whether such days are consecutive. In the event of any dispute
under this paragraph 5(h), the Executive shall submit to a physical examination
by a licensed physician mutually satisfactory to the Company and the Executive,
the cost of such examination to be paid by the Company, and the determination
of
such physician shall be determinative.
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If
the
Executive's employment is terminated by the Company for Executive’s permanent
disability in accordance with this section, the Executive shall continue to
receive the Executive’s base salary and bonus, and the Company shall continue
medical and dental benefits for the Executive and the Executive’s family, by
paying the premium for health insurance continuation coverage under COBRA for
the Executive and the Executive’s eligible family to the extent the Executive
elects COBRA coverage (or continue to contribute the employer portion of the
premium normally paid by the Company for its current employees), for the
applicable Severance Period. The Severance Period shall consist of one hundred
eighty (180) days from the date on which employment actually terminates pursuant
to this paragraph 5(h). Notwithstanding the foregoing, the Executive shall
only
become eligible for a Severance Period if the Executive is terminated for
permanent disability in accordance with this paragraph 5(h) at any time after
Six (6) months from the date the Executive commenced employment under this
Agreement. The Executive acknowledges and agrees that the non-compete
restrictions set forth in Section 7 of this Employment Agreement will remain
in
full force and effect for the Severance Period. The sum, if any, payable to
the
Executive in respect of the Severance Period shall be payable in equal monthly
installments on the Fifteenth (15th)
day of
each month in the Severance Period. Furthermore, the obligations imposed on
Executive with respect to confidentiality, non-disclosure and assignment of
rights to inventions or developments in this Agreement or any other agreement
executed by the parties shall continue, notwithstanding the termination of
the
employment relationship between the parties.
The
salary, bonus (if any) and health insurance benefits to be provided under this
Section 5(h) are sometimes hereinafter referred to as "Termination
Compensation." The Executive shall not be entitled to any Termination
Compensation unless the Executive executes and delivers to the Company after
a
notice of termination a release in form and substance reasonably satisfactory
to
the Company by which the Executive releases the Company from any obligations
and
liabilities of any type whatsoever under this Agreement, except for the
Company's obligations with respect to the Termination Compensation, which
release shall not affect the Executive’s right to indemnification, if any, for
actions taken within the scope of the Executive’s employment or the Executive’s
rights in respect of the Executive’s vested stock options, if any. The parties
hereto acknowledge that the Termination Compensation to be provided under this
Section 5(h) is to be provided in consideration for the above-specified release.
The Executive will not be entitled to and shall not receive any other
compensation or benefits of any type following the effective date of
termination, except such benefits as may be required to be extended under
applicable state or Federal law.
(i) Termination
Due To Executive’s Death.
This
Agreement will terminate immediately upon the Executive's death and the Company
shall not have any further liability or obligation to the Executive, the
Executive’s executors, heirs, assigns or any other person claiming under or
through the Executive’s estate, except as set forth in this paragraph
5(i).
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The
Company shall pay any accrued but unpaid salary or bonuses through the date
of
termination to Executive’s estate. If the Executive's employment is terminated
by the Company for Executive’s death in accordance with this section, the
Executive’s estate shall continue to receive the Executive’s base salary and
bonus, and the Company shall continue medical and dental benefits for the
Executive’s family, by paying the premium for health insurance continuation
coverage under COBRA for the Executive’s eligible family to the extent the
Executive’s estate elects COBRA coverage (or continue to contribute the employer
portion of the premium normally paid by the Company for its current employees),
for the Severance Period. The Severance Period shall consist of one hundred
eighty (180) days from the date on which employment actually terminates pursuant
to this paragraph 5(i). Notwithstanding the foregoing, the Executive’s estate
and the Executive’s family shall only become eligible for the compensation and
benefits of a Severance Period if the Executive is terminated for death in
accordance with this Section at any time after Six (6) months from the date
the
Executive commenced employment under this Agreement. The sum, if any, payable
to
the Executive’s estate in respect of the Severance Period shall be payable in
equal monthly installments on the Fifteenth (15th)
day of
each month in the Severance Period. Furthermore, the obligations imposed on
Executive with respect to assignment of rights to inventions or developments
in
this Agreement or any other agreement executed by the parties shall continue,
notwithstanding the termination of the employment relationship between the
parties.
The
salary, bonus (if any) and health insurance benefits to be provided under this
paragraph 5(i) are sometimes hereinafter referred to as "Termination
Compensation." The Executive’s estate and the Executive’s family shall not be
entitled to any Termination Compensation unless the Executive’s estate executes
and delivers to the Company after a notice of termination a release in form
and
substance reasonably satisfactory to the Company by which the Executive’s estate
releases the Company from any obligations and liabilities of any type whatsoever
under this Agreement, except for the Company's obligations with respect to
the
Termination Compensation, which release shall not affect the Executive’s
estate’s right to indemnification, if any, for actions taken within the scope of
the Executive’s employment or the Executive’s estate’s rights in respect of the
Executive’s vested Restricted Stock. The parties hereto acknowledge that the
Termination Compensation to be provided under this paragraph 5(i) is to be
provided in consideration for the above-specified release. The Executive’s
estate and the Executive’s family will not be entitled to and shall not receive
any other compensation or benefits of any type following the effective date
of
termination, except such benefits as may be required to be extended under
applicable state or Federal law.
(j) Termination
of Employment; Expiration of the Agreement.
(1) At
any
time after notice to terminate this Agreement has been served or received by
the
Company, the Company, without being deemed in breach of this Agreement or being
deemed to be taken steps which would constitute grounds for a different kind
of
termination under this Agreement, may require the Executive to do the following
during the applicable notice period concluding on the effective date of
termination of employment under this Agreement:
-10-
(i) work
in a
capacity consistent with the Executive’s then applicable position and status
other than that in which the Executive is employed under this Agreement but
without affecting the Executive’s fixed salary, including benefits;
and
(ii) remain
away from work and, although the Executive will continue to receive the
Executive’s salary and benefits provided for under this Agreement during such
period, and the Company will not be obliged to provide the Executive with any
work although the Company may, in its absolute discretion, assign to the
Executive during this period, from time to time, such appropriate tasks or
projects as may be carried out by the Executive away from the Company’s
offices.
(2) Upon
termination of the Executive’s employment under this Agreement, the Executive
shall do the following:
(i) forthwith
surrender to the Company, in good condition and working order (ordinary wear
and
tear excepted), all Company property in the Executive’s possession including,
without limitation, all books, papers and other documents (of whatever nature
and in whatever media) belonging to the Company or its subsidiary or associated
company or relating to the business of the Company or its subsidiary or
associated companies;
(ii) if
the
Executive is a director of the Company or of any subsidiary or associated
company, or if the Executive is an officer of any subsidiary or any associated
company, and is so requested by the Company, resign as an officer or director,
as the case may be, within forty-eight (48) hours of being so requested and,
should the Executive fail to do so within forty-eight (48) hours of being so
requested, the Executive irrevocably authorizes the Company to appoint an agent
in the Executive’s name and on the Executive’s behalf to execute and deliver any
documents and to take any and all actions reasonably deemed by the Company
to be
necessary or appropriate to give effect to such resignation(s) by the Executive;
and
(iii) immediately
repay all outstanding debts or loans due to the Company and/or any subsidiary
or
associated company, the Company being expressly authorized, for purposes of
clarity, to deduct the same from any wages or other payment due or which may
become due to the Executive a sum in repayment of all or any part of any such
debts or loans.
(3) Termination
of this Agreement as a consequence of the expiration of the Employment Period
(whether at the end of the initial term or any renewal term) shall not
constitute a termination by the Executive or by the Company, with or without
cause, and Executive shall not be entitled to severance or other continuation
benefits whatsoever (other than as may be required by law) where the Agreement
expires by its own terms. If the Agreement expires at the end of the Initial
Term or any Renewal Term after proper advance notice by either party of the
Company’s or the Executive’s intent not to renew, the Agreement shall expire and
Executive shall not be entitled to any Termination Compensation or severance
of
any kind, except as required by law.
-11-
6. Company
Property. All
programs, files, correspondence, memoranda, notes, records, reports, documents,
software, programs, promotional materials, and other Company property, including
all copies, in whatever media the same may be prepared or retained, which come
into Executive’s possession by, through or in the course of Executive’s
employment, regardless of the source and whether created by Executive, are
the
sole and exclusive property of the Company. Executive agrees and covenants
that
Executive shall not remove or copy any such programs, files, correspondence,
memoranda, notes, records, reports, documents, software, programs, promotional
materials, and other Company property, including all copies, in whatever media
the same may be prepared or retained, or any of the information contained
therein or otherwise pertaining to the business of the Company without the
express written consent of the Company, who in all events shall be considered
to
be the owner and possessor of all such property. Executive covenants and agrees
that Executive shall in no way utilize any such information in Executive’s
possession for the gain or advantage of Executive and/or to the detriment of
the
Company. Upon termination or lapse of this Employment Agreement, or at such
earlier date as the Company may request, in any case upon written notice to
the
Executive, Executive immediately shall deliver to the Company all such programs,
files, correspondence, memoranda, notes, records, reports, documents, software,
programs, promotional materials, and other Company property, including all
copies, in whatever media the same may be prepared or retained. Notwithstanding
the foregoing, the Executive may keep, for Executive’s reference, a copy of all
memoranda, notes and documents prepared by Executive.
7. Non-Competition.
(a) The
Executive agrees and acknowledges that, in connection with the Executive’s
employment with the Company, the Executive will be provided with access to
and
become familiar with confidential and proprietary information and trade secrets
belonging to the Company. Executive further acknowledges and agrees that, given
the nature of this information and trade secrets, it is likely that such
information and trade secrets would inevitably be used or revealed, either
directly or indirectly, in any subsequent employment with a competitor of the
Company in any position comparable to the position the Executive holds with
the
Company under this Agreement. Accordingly, in consideration of the Executive’s
employment with the Company pursuant to this Agreement, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Executive
agrees that, while the Executive is in the employ of the Company and for a
period equal to the greater of the Severance Period or Six (6) Months after
the
termination of the Executive’s employment, except with the prior written
agreement of the Company (not to be unreasonably withheld) the Executive shall
not, either on the Executive’s own behalf or on behalf of any third party,
except on behalf of the Company or any affiliate of the Company, directly or
indirectly:
-12-
(1) Other
than through the Executive’s ownership of stock of the Company, if at all,
directly or indirectly, own, manage, operate, join, control, finance or
participate in the ownership, management, operation, control, or financing
of,
or be connected as a proprietor, partner, stockholder, officer, director,
principal, agent, representative, joint venturer, investor, lender, consultant
or otherwise with, or use or permit the Executive’s name to be used in
connection with, any Business. For purposes of this Agreement, the term
“Business” shall include any business or enterprise engaged directly or
indirectly in the acquisition, licensing, development, manufacturing, marketing
and distribution of microelectromechanical systems, nanotechnology, products
or
services incorporating or utilizing the same or products or services resulting
from collaborations of the Company with Universities and research institutions
to develop products or services incorporating or utilizing
microelectromechanical systems or nanotechnology, and any other business engaged
in by the Company that Executive is or has been directly involved with at any
time during the Twelve (12) month period leading up to the end of the Employment
Term. Notwithstanding the foregoing, the Executive may perform services for
a
competitive business if both of the following conditions are fulfilled: (i)
such
competitive business is also engaged in other lines of business and (ii)
Executive's services are restricted to employment in such other lines of
business. It is recognized by the Executive and the Company that the Business
is
and is expected to continue to be conducted throughout the United States and
the
world, and that more narrow geographical limitations of any nature on this
non-competition covenant (and the non-solicitation provisions set forth in
clauses (2) and (3) below) are therefore not appropriate. The foregoing
restriction shall not be construed to prohibit the ownership by Executive as
a
passive investment of not more than One percent (1%) percent of any class of
securities of any corporation which is engaged in any Business having a class
of
securities registered pursuant to the Securities Exchange Act of 1934, as
amended.
(2) Attempt
in any manner to solicit from a current client or customer of the Company at
the
time of the Executive’s termination, business of the type performed by the
Company or to persuade any client of the Company to cease to do business or
change the nature of the business or to reduce the amount of business which
any
such client has customarily done or actively contemplates doing with the
Company; or
(3) Recruit,
solicit or induce, or attempt to induce, any person or entity which, at the
time
of the termination of the Executive’s employment or at any time during the Six
(6) month period prior to such termination was an employee of the Company or
its
affiliates, to terminate such employee’s employment with, or otherwise cease
such employee’s relationship with the Company or its affiliates. As used in this
Agreement, an affiliate of the Company is any person or entity that, directly
or
indirectly, through one or more intermediaries, controls, or is controlled
by,
or is under common control with, the Company.
(b) The
parties agree that the relevant public policy aspects of covenants not to
compete have been discussed, and that every effort has been made to limit the
restrictions placed upon the Executive to those that are reasonable and
necessary to protect the Company's legitimate interests. Executive acknowledges
that, based upon the Executive’s education, experience, and training, this
non-compete provision will not prevent the Executive from earning a livelihood
and supporting himself and the Executive’s family during the relevant time
period.
-13-
(c) If
any
restriction set forth in Section 7 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or geographic area, it shall be
interpreted to extend over the maximum period of time, range of activities
or
geographic areas as to which it may be enforceable.
(d) The
restrictions contained in Section 7 are necessary for the protection of the
business and goodwill of the Company and/or its affiliates and are considered
by
the Executive to be reasonable for such purposes. The Executive agrees that
any
material breach of Section 7 will cause the Company and/or its affiliates
substantial and irrevocable damage and therefore, in the event of any such
breach, in addition to such other remedies which may be available, the Company
shall have the right to seek specific performance and injunctive relief.
(e) The
provisions of Section 7 shall survive termination or expiration of this
Agreement.
(f) The
existence of a claim, charge, or cause of action by Executive against the
Company shall not constitute a defense to the enforcement by the Company of
the
foregoing restrictive covenants.
8. Protection
of Confidential Information. The
Executive agrees that all information, whether or not in writing, with regard
to
the assets, property, business, technical or financial affairs of the Company
and that is generally understood in the industry as being confidential and/or
proprietary information (“Proprietary Information”) including, but not limited
to, ideas, concepts, inventions, improvements, processes, products, services,
designs, original works of authorship, formulas, compositions of matter,
compounds, computer software programs, Internet products and services, testing
and other data, databases, mask works, trade secrets, treatments, product
improvements, product ideas, new products, discoveries, methods, software,
uniform resource locators or proposed uniform resource locators (“URLs”), domain
names or proposed domain names, any trade names, trademarks or slogans, identity
of customers, contracts, technical and production know-how, developments,
formulae, devices, inventions, administrative procedures, source code and
financial information, is the exclusive property of the Company. The Executive
agrees to hold in a fiduciary capacity for the sole benefit of the Company
all
such Proprietary Information and any other secret, confidential or proprietary
information, knowledge, data, or trade secrets relating to the Company or any
of
its affiliates or their respective clients (the foregoing being hereinafter
referred to as "Confidential Information"), which Confidential Information
shall
have been obtained during the Executive’s employment with the Company. The
Executive agrees that the Executive will not at any time, either during the
Term
of this Agreement or after its termination, disclose to anyone any Confidential
Information, or utilize such Confidential Information for the Executive’s own
benefit, or for the benefit of third parties without written approval by the
appropriate executive officer of the Company. Executive further agrees that
all
memoranda, notes, records, data, schematics, sketches, computer programs,
prototypes, or written, photographic, magnetic or other documents or tangible
objects compiled by the Executive or made available to the Executive during
the
Employment Period concerning the property, business, technical or financial
affairs of the Company and/or its clients, including any copies of such
materials, shall be the property of the Company and shall be delivered to the
Company on the termination of the Executive’s employment, or at any other time,
upon the written request of the Company. Notwithstanding the foregoing, the
Executive may keep, for Executive’s reference, a copy of all memoranda, notes
and documents prepared by Executive.
-14-
In
the
event Executive is questioned by anyone not employed by the Company or by an
employee of or a consultant to the Company not authorized to receive such
information, in regard to any Confidential Information or any other secret
or
confidential work of the Company, or concerning any fact or circumstance
relating thereto, or in the event that Executive becomes aware of the
unauthorized use of Confidential Information by any party, whether competitive
with the Company or not, Executive will promptly
notify
the appropriate executive officer of the Company
designated to receive such notifications. Until further written notice, such
person shall be the Senior Vice President for Strategic Transactions and
Planning or, in the absence of such person, the President or Chief Executive
Officer of the Company. Notwithstanding the foregoing, the Executive may discuss
any fact or circumstances relating to any Confidential Information with
attorneys the Executive may retain in connection with this Agreement or with
the
subject matter thereof, provided that said attorneys shall agree in writing
reasonably satisfactory in form and substance to the Company to maintain the
confidentiality of such information in accordance with this Agreement and to
not
use or disclose the same except as permitted hereunder.
In
the
event that, at any time during the Executive’s employment with the Company or at
any time thereafter, Executive receives a request to disclose all or any part
of
the Confidential Information under the terms of a subpoena or order issued
by a
court or by a governmental body, Executive agrees to notify the Company
immediately of the existence, terms, and circumstances surrounding such request,
to consult with the Company on the advisability of taking legally available
steps to resist or narrow such request; and, if disclosure of such trade
secrets and other proprietary and confidential information
is
required to prevent Executive from being held in contempt or subject to other
penalty, to furnish only such portion of the trade
secrets and other proprietary and confidential information as,
in
the written opinion of counsel reasonably satisfactory to the Company, Executive
is legally compelled to disclose, and to exercise Executive’s best efforts to
obtain an order or other reliable assurance that confidential treatment will
be
accorded to the disclosed trade
secrets and other proprietary and confidential information.
The
Company covenants and agrees to reimburse the Executive for all reasonable
attorneys’ fees and expenses incurred by the Executive in complying with this
paragraph.
(b) The
parties agree that the relevant public policy aspects of confidentiality
agreements have been discussed, and that every effort has been made to limit
the
restrictions placed upon the Executive to those that are reasonable and
necessary to protect the Company's legitimate interests.
(c) If
any
restriction set forth in Section 8 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or geographic area, it shall be
interpreted to extend over the maximum period of time, range of activities
or
geographic areas as to which it may be enforceable.
-15-
(d) The
restrictions contained in Section 8 are necessary for the protection of the
business, assets and goodwill of the Company and/or its affiliates and are
considered by the Executive to be reasonable for such purposes. The Executive
agrees that any material breach of Section 8 will cause the Company and/or
its
affiliates substantial and irrevocable damage and therefore, in the event of
any
such breach, in addition to such other remedies which may be available, the
Company shall have the right to seek specific performance and injunctive relief.
(e) The
provisions of Section 8 shall survive termination or expiration of this
Agreement.
(f) The
existence of a claim, charge, or cause of action by Executive against the
Company shall not constitute a defense to the enforcement by the Company of
the
foregoing restrictive covenants.
9. Intellectual
Property.
(a) Disclosure
of Inventions; Assignment of Ownership to Company.
Executive
acknowledges and agrees that as part of Executive’s employment pursuant to this
Employment Agreement Executive is expected to make new contributions of value
to
the Company, and Executive agrees that Executive will promptly disclose in
confidence to the Company all ideas, concepts, inventions, improvements,
processes, products, designs, original works of authorship, formulas, processes,
compositions of matter, compounds, computer software programs, Internet products
and services, e-commerce products and services, e-entertainment products and
services, testing and other data, databases, mask works, trade secrets,
treatments, product improvements, product ideas, new products, discoveries,
methods, software, uniform resource locators or proposed uniform resource
locators (“URLs”), domain names or proposed domain names, any trade names,
trademarks or slogans, which may or may not be subject to or able to be
patented, copyrighted, registered, or otherwise protected by law, which relate
directly or indirectly to the Company's business or current or anticipated
research and development or the business of any of its affiliates or their
respective clients, or which were developed by the Executive through the use
of
trade secrets of the Company or material use of equipment, supplies or
facilities of the Company (the “Inventions”) that Executive makes, conceives or
first reduces to practice or creates, either alone or jointly with others,
during the period of the Executive’s employment, whether or not in the course of
the Executive’s employment, and whether or not such Inventions are patentable,
copyrightable or able to be protected as trade secrets, or otherwise able to
be
registered or protected by law. The Executive agrees that all such Inventions
shall be the sole and exclusive property of the Company and are hereby assigned
by Executive to the Company from the moment of their creation and fixation
in
tangible media. Furthermore, the Executive agrees that the Executive will,
at
the Company's request and cost, do whatever is reasonably necessary to secure
for the Company the rights thereto by patent, copyright or otherwise. Executive
acknowledges and agrees that the Executive’s obligations with respect to Company
property discussed in this paragraph shall survive the termination or expiration
of this Agreement.
-16-
(b) Work
for Hire.
Executive
acknowledges and agrees that any copyrightable works prepared by the Executive
within the scope of the Executive’s employment are “works for hire” under the
Copyright Act and that the Company will be considered the author and owner
of
such copyrightable works. The Executive agrees that the Executive will, at
the
Company's request and cost, do whatever is reasonably necessary to secure for
the Company the rights thereto. Executive acknowledges and agrees that the
Executive’s obligations with respect to Company property discussed in this
paragraph shall survive the termination or expiration of this
Agreement.
(c) Assignment
of Other Rights.
In
addition to the foregoing assignment of Inventions to the Company, Executive
hereby irrevocably transfers and assigns to the Company: (i) all worldwide
patents, patent applications, copyrights, mask works, trade secrets and other
intellectual property rights in any Invention; and (ii) any and all “Moral
Rights” (as defined below) that Executive may have in or with respect to any
Invention. Executive also hereby forever waives and agrees never to assert
any
and all Moral Rights Executive may have in or with respect to any Invention,
even after termination of the Executive’s work on behalf of the Company. “Moral
Rights” mean
any
rights to claim authorship of an Invention, to object to or prevent the
modification of any Invention, or to withdraw from circulation or control the
publication or distribution of any Invention, and any similar right, existing
under judicial or statutory law of any country in the world, or under any
treaty, regardless of whether or not such right is denominated or generally
referred to as a “moral right.”
(d) Assistance.
Executive
agrees to assist the Company in every proper way to obtain for the Company
and
enforce patents, copyrights, mask work rights, trade secret rights and other
legal protections for the Company’s Inventions in any and all countries.
Executive will execute any documents that the Company may reasonably request
for
use in obtaining or enforcing such patents, copyrights, mask work rights, trade
secrets and other legal protections. The Executive’s obligations under this
Section will continue beyond the termination of the Executive’s employment with
the Company, provided that the Company will compensate the Executive at a
reasonable rate after such termination for time or expenses actually spent
by
the Executive at the Company’s request on such assistance. Executive appoints
the Secretary of the Company as the Executive’s attorney-in-fact to execute
documents on the Executive’s behalf for this purpose.
10. Publicity.
Neither
party shall issue, without consent of the other party, which consent shall
not
be unreasonably withheld, any press release or make any public announcement
with
respect to this Agreement or the employment relationship between them
provided,
that
nothing herein shall preclude the Company from making such disclosures as may
be
reasonably necessary or appropriate in order to comply with applicable
securities laws, rules and regulations. Following the date of this Agreement
and
regardless of any dispute that may arise in the future, the Executive and the
Company jointly and mutually agree that they will not disparage, criticize
or
make statements which are negative, detrimental or injurious to the other to
any
individual, company or client, including within the Company.
-17-
11. Binding
Agreement.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their heirs, personal representatives, successors and assigns. In the event
the
Company is acquired, is a non surviving party in a merger, or transfers
substantially all of its assets, this Agreement shall not be terminated and
the
executive and the transferee or surviving company shall be bound by the
provisions of this Agreement. The parties understand that the obligations of
the
Executive are personal and may not be assigned by the Executive.
12. Entire
Agreement.
This
Agreement contains the entire understanding of the Executive and the Company
with respect to employment of the Executive and supersedes any and all prior
understandings, written or oral. This Agreement may not be amended, waived,
discharged or terminated orally, but only by an instrument in writing,
specifically identified as an amendment to this Agreement, and signed by all
parties. By entering into this Agreement, the Executive certifies and
acknowledges that the Executive has carefully read all of the provisions of
this
Agreement and that the Executive voluntarily and knowingly enters into said
Agreement.
13. Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be deemed severable from the
remainder of this Agreement, and the remaining provisions contained in this
Agreement shall be construed to preserve to the maximum permissible extent
the
intent and purposes of this Agreement.
14. Tax
Consequences.
Company
will have no obligation to any person or entity entitled to the benefits of
this
Agreement with respect to any tax obligation any such person or entity incurs
as
a result of or attributable to this Agreement, including all supplemental
agreements and employee benefits plans incorporated by reference therein, or
arising from any payments made or to be made under this Agreement or
thereunder.
15. Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of New York applicable to contracts negotiated, executed
and to be performed wholly within the State of New York, without giving effect
to the principles of conflicts of law or choice of law thereof.
16. Submission
to Jurisdiction.
Each of
the parties hereto hereby irrevocably and unconditionally submits to the
exclusive jurisdiction of the State and Federal Courts sitting in New York,
New
York for purposes of any suit, action or other proceeding arising out of this
Agreement and agrees not to commence any action, suit or proceedings relating
hereto except in such courts. Each of the parties hereto agrees that service
of
any process, summons, notice or document by U.S. registered mail at its address
set forth herein shall be effective service of process for any action, suit
or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement, which
is
brought by or against it, in such courts, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
-18-
17. Notices.
Any
notice provided for in this Agreement shall be provided in writing. Properly
addressed notices shall be effective from the date of service, if served
personally on the party to whom notice is to be given, on the date of delivery
if delivered to the appropriate address by in-person delivery or courier or
by
an overnight courier (including, without limitation, Federal Express, UPS and
Express Mail), or on the fifth (5th)
day
after mailing via the U.S. Postal Service, if mailed by First Class mail,
postage prepaid. Notices shall be properly addressed to the parties at their
respective addresses or to such other address as either party may later specify
by notice to the other.
18. Indemnification.
(a) The
Company shall indemnify and hold harmless the Executive to the fullest extent
permitted by law from and against any and all claims, damages, expenses
(including reasonable attorneys' fees), judgments, penalties, fines,
settlements, and all other liabilities incurred or paid by the Executive in
connection with the investigation, defense, prosecution, settlement or appeal
of
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and to which the Executive was or
is a
party or is threatened to be made a party by reason of the fact that the
Executive is or was an officer, employee or agent of the Company, or by reason
of anything done or not done by the Executive in any such capacity or
capacities, provided that the Executive acted in good faith, in a manner that
was not grossly negligent and did not constitute willful misconduct and in
a
manner the Executive reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the Executive's conduct was
unlawful. The Company also shall pay any and all reasonable expenses (including
attorney's fees) incurred by the Executive as a result of the Executive being
called as a witness in connection with any matter involving the Company and/or
any of its officers or directors (other than an action or suit by the Company
against the Executive).
(b) The
Company shall pay any reasonable expenses (including attorneys' fees),
judgments, penalties, fines, settlements, and other liabilities incurred by
the
Executive in investigating, defending, settling or appealing any action, suit
or
proceeding described in this Section 18 (other than an action or proceeding
by
the Company against the Executive) in advance of the final disposition of such
action, suit or proceeding. The Company shall promptly pay the amount of such
expenses to the Executive, but in no event later than ten (10) days following
the Executive's delivery to the Company of a written request for an advance
pursuant to this Section 18, together with a reasonable accounting of such
expenses.
(c) The
Executive hereby undertakes and agrees to repay to the Company any advances
made
pursuant to this Section 18 if and to the extent that it shall ultimately be
agreed by the parties or determined by a court that the Executive is not
entitled to be indemnified by the Company for such amounts.
(d) The
Company shall make the advances contemplated by this Section 18 regardless
of
the Executive's financial ability to make repayment, and regardless of whether
indemnification of the Indemnitee by the Company will ultimately be required.
Any advances and undertakings to repay pursuant to this Section 18 shall be
unsecured and interest-free.
-19-
19. Miscellaneous.
(a) No
delay
or omission by either party to this Agreement in exercising any right of such
party under this Agreement shall operate as a waiver of that or any other right
by such party. A waiver or consent given by a party to this Agreement on any
one
occasion shall be effective only in that instance and shall not be construed
as
a bar or waiver of any right on any other occasion.
(b) The
captions of the sections of this Agreement are for convenience of reference
only
and in no way define, limit or affect the scope or substance of any section
of
this Agreement.
(c) The
language in all parts of this Agreement will be construed, in all cases,
according to its fair meaning, and not for or against either party hereto.
The
parties acknowledge that each party and its counsel have reviewed and revised
this Agreement and that the normal rule of construction to the effect that
any
ambiguities are to be resolved against the drafting party will not be employed
in the interpretation of this Agreement.
20. Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall
be
deemed an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. Facsimile signatures shall be treated as if
the
same were original signatures.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly
executed and delivered by its authorized officers or individually, as of the
date first written above.
| ADVANCE NANOTECH, INC. | ||
| |
|
|
| By: | ||
|
Name: Xxxx Xxxxxxxxx |
||
| Officer’s Title: CEO | ||
| EXECUTIVE: | ||
| |
|
|
|
Name:
Xxxxxx Xxxx
|
||
-20-
