EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (“Agreement”) is entered into August 31, 2007 and effective
as of the Effective Time (as defined below), by and between NaturalNano, Inc.,
a
Nevada corporation (the “Company”), and Xxxx
X.
Xxxxxx (“Employee”).
Conditioned
on the execution of the Company's standard confidential information and
non-complete agreements, the date of any such execution or September 4, 2007,
whichever first occurs, being the "Effective Time" and
in
consideration of the mutual covenants and conditions set forth herein, and
other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Employment.
The
Company hereby employs Employee in the capacity of Chief Financial Officer
reporting to the President or Chief Executive Officer. Employee accepts such
employment and agrees to diligently, conscientiously and exclusively perform
such services as are customary to such office and as shall from time to time
be
assigned to him by the board of directors the Company or any duly formed
committee thereof or by the President. Employee’s employment will be on a
full-time business basis requiring the devotion of substantially all of his
productive business time for the efficient and successful operation of the
business of the Company.
2. Conditional
Agreement; Term.
Should
this Agreement become effective, the employment hereunder shall be for a one
year period commencing at the Effective Time, unless earlier terminated as
provided in Section 4 (the “Initial Term”). This Agreement shall be
automatically renewed for successive one-year periods upon the expiration of
the
Initial Term unless earlier terminated as provided in Section 4. The parties
expressly agree that designation of a term and renewal provisions in this
Agreement does not in any way limit the right of the parties to terminate this
Agreement at any time as hereinafter provided. Reference herein to the term
of
this Agreement shall refer both to the Initial Term and any successive term
as
the context requires.
3. Compensation
and Benefits
3.1 Salary.
For the
performance of Employee’s duties hereunder, and commencing at the Effective
Time, the Company shall pay Employee a salary (the “Base Compensation”) at the
annualized rate of $140,000, payable in accordance with the normal payroll
practices of the Company. Prior to the end of the Initial Term and any renewal
term, Employee’s Base Compensation shall be reviewed, taking into account the
performance of Employee, the financial condition of the Company, and such other
information as the Company shall determine is appropriate. Based upon such
review, the Company
may
increase (but not decrease) Employee’s Base Compensation, effective upon the
commencement of the immediately following renewal term. Upon the first closing
of a funding transaction following the Effective Time that provides gross
proceeds to the Company of $5 million or more, the Employee's Base Compensation
shall be increased to $155,000.
3.2 Bonuses. The
Employee will be eligible during the term of this Agreement for such additional
bonus payments as may be awarded to the Employee from time to time by the
Company.
3.3 Payment
and Withholding.
All
payments required to be made by the Company to the Employee shall be made in
accordance with the Company’s normal payroll practices and shall be subject to
the withholding of such amounts, if any, relating to tax and other payroll
deductions as the Company may reasonably determine should be withheld pursuant
to any applicable law or regulation.
3.4 Personnel
Policies and Benefits.
Unless
otherwise specified herein, the Employee’s employment is subject to the
Company’s personnel policies and procedures as they may be interpreted, adopted,
revised or deleted from time to time in the Company’s sole discretion. The
Employee will be eligible to participate on the same basis as similarly situated
employees in the Company’s benefit plans in effect from time to time during his
employment. All
matters of eligibility for coverage or benefits under any benefit plan shall
be
determined in accordance with the provisions of the plan. The Company reserves
the right to change, alter, or terminate any benefit plan in its sole
discretion.
3.5 Paid
Vacation.
Employee shall be entitled to a minimum of twenty (20) paid vacation days
annually. Such vacation days shall be earned at a rate of 1.67 days per month.
This benefit may be amended by a written policy which the Company may adopt
from
time to time with respect to similarly situated employees, but shall not be
less
than twenty days. Vacation accrual limits and annual carryover limits shall
be
governed by such applicable vacation policy for similarly situated employees
as
the Company may have adopted.
3.6 Stock
Options.
As soon
as practicable following the Effective Time, the Company shall grant to the
Employee an option to purchase up to 750,000 shares of the Company's Common
Stock at a price per share equal to the closing price on the date such grant
is
made (the "Initial Grant"). The Initial Grant shall vest as to: one third on
the
first anniversary of the Effective Time; one third on the second anniversary
of
the Effective Time; and one third on the third anniversary of the Effective
Time. The Initial Grant shall be governed pursuant to the NaturalNano, Inc.
2007
Incentive Stock Option Plan.
From
time
to time the Company may grant to Employee options under the Company’s then
current stock option plan to purchase shares of the Company’s common stock at a
stated exercise price per share ("Additional Grants"). Any Additional Grants
will vest and be exercisable in accordance with a Stock Option Agreement to
be
executed pursuant to the Company’s then current stock option plan. Employee will
participate in any stock grant program established by the Company on the same
basis as similarly situated employees.
3.7 Reimbursement
of Expenses.
Employee shall be eligible to be reimbursed for all reasonable business
expenses, including but not limited to expenses for cellular
telephone,
BlackBerry, travel, meals and entertainment, incurred by Employee in connection
with and reasonably related to the furtherance of the Company’s business in
accordance with the Company’s policy.
In
addition, Employee will be eligible to be reimbursed for reasonable home office
expenses provided Employee receives prior approval before incurring such
expenses.
Employee shall submit expense reports and receipts documenting the expenses
incurred in accordance with Company policy.
4. Termination
4.1 Termination
Events.
The
employment of the Employee and the Term of this Agreement will terminate upon
the occurrence of any of the following events (“the Termination
Event”):
(a) The
Employee’s Death;
(b) The
Employee’s “Disability”, defined, subject to applicable state and federal law,
as termination by the Company because the Employee is unable to perform the
essential functions of Employee’s position (with reasonable accommodation as
such term is defined in the Americans with Disabilities Act).
(c) Employee
is discharged by the Company for “Cause”. As used in this Agreement, the term
“Cause” shall mean a determination by the Company that:
(i) Employee
has engaged in theft, dishonesty, or falsification or in conduct constituting
a felony
or
a misdemeanor involving dishonesty or moral turpitude; or
(ii) Employee
has failed substantially to perform his duties with the Company (other than
any
such failure resulting from the Employee’s absence due to approved or legally
protected leave) after written demand of no less than ten (10) days for
substantial performance is requested by the Company, which demand specifically
identifies the manner in which it is claimed Employee has not substantially
performed his duties, or
(iii) Employee
is engaged, or has engaged, in conduct which has, or would reasonably be
expected to have, a material adverse effect on the Company; or
(iv)
Employee
has materially breached this Agreement, any other agreement between the Employee
and the Company, or Employee’s duty of loyalty to the Company.
In
the
event a failure or breach under (ii) or (iv) above is based on completed actions
that cannot be undone, and therefore not, in the opinion of the Company, capable
of cure, Employee may be terminated immediately provided it pays the Employee
for the cure period. No termination shall be effected for Cause unless Employee
has been provided with a written notice that states with reasonable specificity
the acts or omissions which form the basis of the Company’s decision.
(d) Employee
is terminated by the Company “without Cause”, which the Company may do upon its
election, regardless of whether it also has the option to terminate for Cause,
upon written notice, which notice shall specify the date of such
termination.
(e) Employee
terminates his employment due to “Good Reason”, which shall mean that any of the
following has occurred (i) a material default by the Company in the performance
of any of its obligations hereunder, which default remains uncured by the
Company for a period of thirty (30) days following receipt of written notice
thereof to the Company from Employee; (ii) without the Employee’s consent, a
requirement imposed by the Company that the employee relocate his office to
a
location more than fifty (50) miles from his current office location;
(iii)
without the Employee’s consent, a reduction in salary imposed by the Company; or
(iv) without the Employee’s consent, a material diminution in the Employee’s
title or duties; provided however, that any actions taken by the Company to
accommodate a disability of the Employee or pursuant to the Family and Medical
Leave Act shall not be a Good Reason for purposes of this Agreement. The
Employee may elect to terminate for Good Reason within thirty (30) days of
the
Employee’s becoming aware of the existence of Good Reason, so long as the
Company has not previously notified the Employee of its decision to terminate
his employment.
(f) Employee
terminates his employment without Good Reason, which Employee may do at any
time
with at least 30 days advance notice.
(g) If
at any
time during the course of this Agreement the parties by mutual consent decide
to
terminate this Agreement, they shall do so by separate agreement setting forth
the terms and condition of such termination.
4.2 Effects
of Termination
(a) Upon
termination of Employee’s employment hereunder for any reason the Company will
pay Employee all amounts owed to Employee through the date of Termination and
any amounts earned by Employee as of the date of Termination but due to be
paid
Employee at a future date shall be paid when otherwise due, in accordance with
applicable law. Notwithstanding any provision herein to the contrary, if the
Employee is terminated for Cause he shall only be entitled to receive salary
and
vacation pay accrued up to and including the date of termination. Upon
termination,
the entitlement of the Employee or his Estate to benefits, or to continuation
or
conversion rights, under any Company sponsored benefit plan shall be determined
in accordance with applicable law and the provisions of such plan.
(b)
Upon
termination of Employee’s employment under Sections 4.1 (d) or (e), if the
Employee executes, and does not revoke, a Separation Agreement and Release
in a
form acceptable to the Company, the Company shall pay Employee, on the Company’s
regular payroll dates, commencing on the first such date that occurs at least
eight days following the Employee’s execution of the Separation Agreement and
Release, amounts equal to the then applicable Base Compensation, excluding
bonus, for a period of six (6) months; pay Employee a portion of any bonus
he
would have earned had he remained employed, prorated based on the number of
months he was employed during the calendar year for which the bonus is
calculated, and paid on the date it would have been paid had he remained
employed; and if the Employee timely elects and remains eligible for continued
coverage under COBRA, the Company will pay that portion of the COBRA premiums
it
was paying prior to the date of Termination for the period the Employee is
receiving severance under this Agreement or until the Employee is eligible
for
health care coverage under another Employer’s plan, whichever period is shorter.
(c) Following
a Termination Event, both the Employee and the Company agree not to make to
any
person, including but not limited to customers of the Company, any statement
that disparages the other or which reflects negatively upon the other in any
manner likely to be harmful to them or their business, business reputation
or
personal reputation, including but not limited to statements regarding the
Company’s financial condition, its officers, directors, shareholders, employees
and affiliates; provided that both the Employee and the Company may respond
accurately and fully to any question, inquiry or request for information when
required by legal process. The Company’s obligations under this section are
limited to the Company’s officers and directors and Company representatives with
knowledge of this provision.
(d) Following
a Termination Event, Employee shall fully cooperate with the Company in all
matters relating to the winding up of Employee’s pending work including, but not
limited to, any litigation in which the Company is involved, and the orderly
transfer of any such pending work to such other Employees as may be designated
by the Company.
5. General
Provisions
5.1 Assignment.
Neither
party may assign or delegate any of his or its rights or obligations under
this
Agreement without the prior written consent of the other party. Provided
however, the provisions of this Agreement shall inure to the benefit of, and
be
binding upon, the Company and its successors and permitted assigns and Employee
and Employee’s legal representatives, heirs, legatees, distributees, assigns and
transferees by operation of law, whether or not any such person shall have
become a party to this Agreement and have agreed in writing to join and be
bound
by the terms and conditions hereof.
5.2 Entire
Agreement.
This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof and supersedes any and all prior agreements between the
parties. The parties hereto have entered into a Proprietary Information,
Inventions, Non-Competition and Non-Solicitation Agreement with the same
Effective Date as this Agreement which
may
be amended by the parties from time to time without regard to this Agreement.
The Proprietary Information, Inventions, Non-Competition and Non-Solicitation
Agreement, contains provisions that are intended by the parties to survive
and
do survive termination or expiration of this Agreement.
5.3 Modifications.
This
Agreement may be changed or modified only by an agreement in writing signed
by
both parties hereto.
5.4 Prior
Agreements.
This
Agreement supersedes all prior written and verbal agreements with the Company
and/or its Board of Directors and shall govern all future employment
obligations.
5.5 Headings.
The
section headings contained in this Agreement are for reference purposes only
and
shall not in any way affect the meaning or interpretation of this
Agreement.
5.6 Governing
Law.
This
Agreement shall be governed by, construed and enforced in accordance with,
the
laws of the State of Delaware, and venue and jurisdiction for any disputes
hereunder shall be heard in any court of competent jurisdiction in Delaware
for
all purposes.
5.7 Severability.
If any
provision of this Agreement is held by a court of competent jurisdiction to
be
invalid, void or unenforceable, the remaining provisions shall nevertheless
continue in full force and effect.
5.8 Further
Assurances.
The
parties will execute such further instruments and take such further actions
as
may be reasonably necessary to carry out the intent of this
Agreement.
5.9 Notices.
Any
notice expressly provided for under this Agreement shall be in writing, shall
be
given either by hand delivery, by courier, or by mail and shall be deemed
sufficiently given when actually received by the party to be notified, or,
if
delivered by courier, when delivered to the party’s address as set forth below,
or when mailed, if mailed by certified or registered mail, postage prepaid,
addressed to the party’s address as set forth below. Either party may, by notice
to the other party, given in the manner provided for herein, change their
address for receiving such notices.
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If
to the Company, to the President or CEO in person or to its corporate
headquarters at the time notice is given, “Attention: President or
CEO”.
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If
to the Employee, to his in person or to his home address as listed
in
Company records at the time notice is given.
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5.10 No
Waiver.
The
failure of either party to enforce any provision of this Agreement shall not
be
construed as a waiver of that provision, nor prevent that party thereafter
from
enforcing that provision of any other provision of this Agreement.
5.11 Legal
Fees and Expenses.
In the
event of any disputes under this Agreement, each party shall be responsible
for
their own legal fees and expenses which it may incur in resolving such dispute,
unless otherwise prohibited by applicable law or a court of competent
jurisdiction.
5.12 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original, but all of which together shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the Company and Employee have executed this Agreement,
effective as of the day and year first above written.
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NaturalNano,
Inc.
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Employee:
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By:
/s/
Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
President
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/s/
Xxxx X. Xxxxxx
Xxxx
X. Xxxxxx
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