Exhibit 10.1
ALTAIR EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
November 10, 2004, by and between Altair Nanomaterials, Inc. a Nevada
corporation (the "Company"), and Xxxxxxx Xxxxxxxxx (the "Employee").
RECITALS
A. The Company is a wholly-owned subsidiary of Altair US Holdings
Inc., a Nevada corporation ("Holdings"). US Holdings Inc. is a wholly owned
subsidiary of Altair Nanotechnologies Inc. (the "Parent"; together with the
Company, Holdings and all consolidated subsidiaries of the Parent (the
"Consolidated Company"). The Company holds substantially all of the operating
assets of the Parent and its consolidated subsidiaries.
B. The Company desires to retain Employee as an employee of the
Company subject to the terms and conditions of this Agreement.
C. Employee desires to continue his employment with the Company
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of this Agreement and of the
covenants and conditions contained in this Agreement, the parties hereto agree
as follows:
1. Employment; Location. The Company hereby employs Employee, and Employee
hereby accepts such employment, in Washoe County in the State of Nevada or in
such other location as may be mutually agreed between Employee and the Company.
2. Term. The Company agrees to employ Employee, and Employee agrees to
accept employment with the Company, for the eighteen (18) month period beginning
on the date first set forth above, unless this Agreement is sooner terminated
pursuant to the terms of this Agreement. In the event this Agreement expires
Employee's employment with the Company will continue beyond such period, but in
such circumstances Sections 8, 9 and 10 of this Agreement will continue to
apply, however the remainder of this agreement will not apply.
3. Duties. Employee's duties shall include such duties specifically
assigned or delegated to Employee by the Board of Directors of the Company, the
Board of Directors of the Parent (either such Board of Directors, the "Board")
and such other duties as are typically performed by an employee with the same
position as Employee. Employee acknowledges that the Board may change, increase
or decrease Employee's title, position and/or duties from time to time its
discretion. Employee shall diligently execute his or her duties and shall devote
his full time skills and efforts to such duties during ordinary working hours.
Employee shall faithfully adhere to, execute and fulfill all lawful policies
established from time to time by the Company.
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4. Compensation and Benefits. The Company shall pay Employee, and Employee
accepts as full compensation for all services to be rendered to the Company, the
following compensation and benefits:
4.1 Base Salary. During the initial term of this Agreement, the Company
shall pay Employee an annual base salary of One Hundred Twenty Five Thousand
Dollars ($125,000.00) per year, ("Base Salary"), payable in accordance with the
Company's normal payroll practices. Such Base Salary shall be reviewed annually,
and shall be subject to such annual increases, if any, as determined by the
Compensation Committee of the Board.
4.2 Additional Benefits. Employee shall be eligible to participate in
the Company's employee benefit plans for employees, and in future employee
benefit plans if and when any such plans may be adopted, including, without
limitation, bonus plans, pension or profit sharing plans, incentive stock plans,
and those plans covering life, disability, health, and dental insurance in
accordance with the rules established in the discretion of the Board for
individual participation in any such plans as may be in effect from time to
time.
4.4 Vacation, Sick Leave, and Holidays. Beginning on the date hereof,
Employee shall be entitled to vacation, sick leave and holidays at full pay in
accordance with the Company's policy. Employee shall not be paid for any unused
sick leave for which he has been credited.
4.5 Deductions. The Company shall have the right to deduct from the
compensation due to Employee hereunder any and all sums required for social
security and withholding taxes and for any other federal, state or local tax or
charge which may be hereafter enacted or required by law as a charge on
compensation of Employee.
5. Business Expenses. The Company shall promptly reimburse Employee for
all reasonable out-of-pocket entertainment and business expenses he incurs in
fulfilling his duties hereunder, in accordance with the general policy of the
Consolidated Company in effect from time to time, provided that Employee
furnishes to the Company adequate records and other documentary evidence
required by the general policy of the Consolidated Company and all federal and
state statutes and regulations issued by the appropriate taxing authorities for
the substantiation of each such business expense as a deduction on the federal
or state income tax returns of the Company.
6. Termination of Employee's Employment.
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6.1 Termination of Employment by the Company for Cause. Employee's
employment may be terminated by the Company at any time for "Cause." For
purposes of this Agreement, "Cause" shall include (i) Employee's material breach
of this Agreement, which breach cannot be cured or, if capable of being cured,
is not cured within fifteen (15) days after receipt of written notice of the
need to cure, (ii) any act of theft, embezzlement, conversion or other taking or
misuse of the property or opportunities of the Consolidated Company, (iii) any
fraudulent or criminal activities, (iv) any grossly negligent or unethical
activity, (v) any activity that causes substantial harm to the Consolidated
Company, its reputation, or to its officers, directors or employees (including,
without limitation, the illegal possession consumption of drugs for which
Employee does not have a valid prescription on Consolidated Company property or
in the course of performing services for the Consolidated Company), or (vi)
habitual neglect of or deliberate or intentional refusal to perform his duties
and obligations under this Agreement. A determination of whether Employee's
actions justify termination for Cause and the date on which such termination is
effective shall be made in good faith by the Board. A termination of Employee's
employment pursuant to this Section 6.1 shall be effective as of the effective
date of the notice by the Board to Employee that it has made the required
determination, or as of such subsequent date, if any, as is specified in such
notice. 2
6.2 Termination by the Company Without Cause. Upon not less than 15
day's prior written notice, the Company may terminate Employee's employment
under this Agreement without Cause. A termination of Employee's employment
pursuant to this Section 7 shall be effective as of the later of (i) 15 days
after the effective date of the notice to Employee that the Company has elected
to terminate his employment without Cause pursuant to this Section 6.2, or (ii)
as of such subsequent date, if any, as is specified in such notice
6.3 Termination By the Employee For Good Reason. Employee may terminate
his employment under this Agreement at any time for Good Reason, provided
Employee has delivered a written notice to the Board of Directors that briefly
describes the facts underlying Employee's belief that Good Reason exists and the
Company has failed to cure such situation within 15 days after the effective
date of such notice. For purposes of this Agreement, Good Reason shall mean and
consist of:
(a) a material breach by the Company of any of its obligations,
duties, agreements, representations or warranties under this Agreement; or
(b) without Employee's prior written consent, the transfer or
relocation of Employee's place of employment to any place other than Washoe
County, except for reasonable travel on the business of the Company.
6.4 Termination by the Employee Without Good Reason. Upon not less than
15 day's prior written notice (which notice shall specify the effective date of
the termination), Employee may terminate his employment under this Agreement by
such notice without Good Reason.
6.5 Termination of Employment by Death. If Employee dies during the
term of employment, Employee's employment shall be terminated effective as of
the end of the calendar month during which Employee died.
6.6 Disability. The Company or Employee may terminate Employee's
employment under this Agreement if Employee shall become unable to fulfill his
duties under this Agreement for a period of ninety (90) days, as measured by the
Consolidated Company's usual business activities, by reason of any medically
determinable physical and/or mental disability determined in accordance with the
procedure in this Section 6.6. If in the opinion of the Company or Employee,
Employee is disabled for such ninety (90) day period, then the following shall
occur:
(a) the Company or Employee shall promptly so notify (by dated
written notice) the insurance company or carrier that, at that
time, insures the employees of the Company against long-term
disability (the "Company's Insurance Carrier") and request a
determination as to whether Employee is disabled pursuant to the
terms of the Company's long-term disability plan or policy; and
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(b) the matter of Employee's disability shall be resolved, and
Employee and the Company shall abide by the decision of, the
Company's Insurance Carrier.
A termination of Employee's employment pursuant to this Section 6.6 shall be
effective ninety (90) days after the date as of which it is determined, pursuant
to this Section 6.6, that Employee was disabled.
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7. Effect of Termination of Employee's Employment.
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7.1 Provisions Applicable to All Terminations. In the event the
Employee's employment is terminated for any reason, (a) not later than 30 days
after the effective date of the termination, all cash compensation described in
this Agreement that was due through the effective date of the termination (or in
the case of a termination under Section 6.6, within 30 days of the date the
Company's Insurance Carrier makes a disability determination), but unpaid, shall
be computed and paid to Employee by the Company; and (b) Employee, or his heirs,
or estate, as the case may be, shall receive all compensation and employee
benefits accrued through the effective date of the termination, and all benefits
provided through the Company's insurance plans pursuant to the terms and
conditions of such insurance plans.
7.2 Termination by Company With Cause or by Employee Without Good
Reason. If Employee's employment is terminated by the Company for Cause pursuant
to Section 6.1 or by Employee without Good Reason pursuant to Section 6.4, then
in such event, Employee shall not be entitled to any compensation in addition to
that set forth in Section 7.1.
7.3 Termination by Company Without Cause or by Employee for Good
Reason. If Employee's employment is terminated by the Company without Cause
pursuant to Section 6.2 or by Employee for Good Reason pursuant to Section 6.3,
then, in addition to complying with the requirements of Section 7.1, the Company
shall continue to pay, when due in accordance with Section 4.1, to or for the
benefit of Employee or, if applicable, his heirs or estate, as their rights may
be, one hundred percent (100%) of any and all payments of annual base salary and
the Employees COBRA premiums through the period ending on the nine (9) month
anniversary of the effective date of the termination of Employee's service.
7.4 Return of Company Property. Upon the termination or end of the
employment of Employee with the Consolidated Company or at any time upon the
request of the Company, Employee shall provide to the Consolidated Company all
property belonging to the Consolidated Company, including, but not limited to,
keys, card passes, credit cards, electronic equipment, cellular telephones, and
Consolidated Company automobiles.
8. Covenant Not to Compete
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8.1 Covenant. Employee hereby agrees that, while he is employed by the
Consolidated Company and during a period of 12 months following the termination
of his employment with the Consolidated Company, Employee will not directly or
indirectly compete (as defined in Section 8.2 below) with the Consolidated
Company or its affiliates in any geographic area in which the Consolidated
Company or its affiliates now do business or in which the Consolidated Company
does business as of the effective date of the termination of the Employee's
employment. It is the intention of the Company and Employee that this provision
be interpreted to only prevent actual competitive harm to the Consolidated
Company and not otherwise hinder or restrict Employee in his efforts to find
continued employment in his field of training and expertise.
8.2 Direct and Indirect Competition. As used herein, the phrase
"directly or indirectly compete" shall include owning, managing, operating or
controlling, or participating in the ownership, management, operation or control
of, or being connected with or having any interest in, as a stockholder,
director, officer, employee, agent, consultant, assistant, advisor, sole
proprietor, partner or otherwise, any Competing Business (as defined below). For
purposes of this Agreement, a "Competing Business" shall be any business or
enterprise other than the Consolidated Company that is engaged in the
Centrifugal Jig Business or the Nanomaterials Business, both of which are
defined below. This prohibition, however, shall not apply to ownership of less
than five percent (5%) of the voting stock in companies whose stock is traded on
a national securities exchange or in the over-the-counter market.
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(a) For purpose of this Agreement, the "Centrifugal Jig
Business" includes the development, construction, marketing, use or modification
of a device designed to separate mineral particles using technology that
combines standard jig technology, including (a) use of a mechanism that keeps
particles in suspension in order to eliminate interparticle friction and allow
differential settling according to the variation in the net specific gravities
of various particles, and (b) rotation of the jig or jig-like device, the screen
or other parts of the jig or jig-like device in order to subject the various
mineral particles to centrifugal forces.
(b) For purposes of this Agreement the "Nanomaterials
Business" means the development, marketing, use, modification or exploitation of
any technology or process for the production of pigments, metals, nanomaterials
or other materials from titanium containing ores and other feed materials for
use in any application presently being explored, considered or developed by the
Consolidated Company, including, without limitation, the production of titanium
dioxide pigments, the production of titanium metals, the production of lanthanum
based pharmaceutical products or pharmaceutical delivery devices.
8.3 Nonsolicitation. Employee hereby agrees that, while he is employed
by the Company pursuant to this Agreement, and, during a period of 24 months
following the termination of his employment with the Company, he will not,
directly or indirectly, through an affiliate or otherwise, for his account or
the account of any other person, (a) solicit business substantially similar to
the Nanomaterials Business or the Centrifugal Jig Business from any person that
at the time of termination is or was a customer of a Consolidated Company,
whether or not he had personal contact with such person during and by reason of
employment with a Consolidated Company; (ii) in any manner induce or attempt to
induce any employee of a Consolidated Company to terminate his or her employment
with a Consolidated Company; or (iii) materially and adversely interfere with
the relationship between a Consolidated Company and any employee, contractor,
supplier, customer or shareholder of a Consolidated Company.
8.4 Enforceability. If any of the provisions of this Section 8 is held
unenforceable, the remaining provisions shall nevertheless remain enforceable,
and the court making such determination shall modify, among other things, the
scope, duration, or geographic area of this Section to preserve the
enforceability hereof to the maximum extent then permitted by law. In addition,
the enforceability of this Section is also subject to the injunctive and other
equitable powers of a court as described in Section 12 below.
8.5 Jurisdiction. For the sole purpose of enforcement of the Company's
rights under this Section 8, the Company and Employee intend to and hereby
confer jurisdiction to enforce the restrictions set forth in this Section 8 (the
"Restrictions") upon the courts of any jurisdiction within the geographical
scope of the Restrictions. If the courts of any one or more of such
jurisdictions hold the Restrictions unenforceable by reason of the breadth of
such scope or otherwise, it is the intention of the Company and Employee that
such determination not bar or in any way affect any Consolidated Company' rights
to the relief provided above in the courts of any other jurisdiction within the
geographical scope of the Restrictions, as to breaches of such covenants in such
other respective jurisdictions, such covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants. In the event of any litigation between the parties under this Section
8, the court shall award reasonable attorneys fees to the prevailing party.
9. Confidential Information
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9.1 Definition. The term "Confidential Information" shall mean and
include any information, including a formula, pattern, compilation, program,
source code, device, method, technique, or process, that (i) derives independent
economic value, actual or potential, from not being generally known to, and not
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being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and (ii) that is the subject of
efforts that are reasonable under the circumstance to maintain its secrecy.
Information that may be included in Confidential Information includes matters of
a technical nature (including know-how, computer programs, software, patented as
unpatented technology, source-code, accounting methods, and documentation),
matters of a business nature (such as information about contract forms, costs,
profits, employees, promotional methods, markets, market or marketing plans,
sales, and client accounts), plans for further development, and any other
information meeting the definition of Confidential Information set forth above.
Confidential Information includes all proprietary information and know-how of
the Consolidated Company, whether or not patented, related to the function,
development, use, marketing, operation or modification of any process owned,
developed or purchased by the Consolidated Company related to the production of
pigments, metals, nanomaterials or other materials from titanium containing ores
and other feed materials for use in any application presently being explored,
considered or developed by the Consolidated Company, including, without
limitation, the production of titanium dioxide pigments, the production of
titanium metals and the production of pharmaceutical products or pharmaceutical
delivery devices. Confidential information may also include any such information
developed by Employee for the Consolidated Company while an employee of the
Consolidated Company. "Confidential Information" does not include (i)
information that is in the public domain at the time the information is acquired
by Employee, or (ii) information that later becomes public through no act or
omission of Employee or other person subject to a duty to keep such information
confidential.
9.2 Nondisclosure and Non-Use of Confidential Information. Employee
agrees that all files, records (including electronic or digitals records),
documents, and the like relating to such Confidential Information, whether
prepared by him or otherwise coming into his possession, shall remain the
exclusive property of the Consolidated Company, and Employee hereby agrees to
promptly disclose such Confidential Information to the Consolidated Company upon
request and hereby assigns to the Consolidated Company any rights which he may
acquire in any Confidential Information. Employee further agrees not to disclose
or use any Confidential Information and to use his best efforts to prevent the
disclosure or use of any Confidential Information either during the term of his
employment or consultancy or at any time thereafter, except as may be necessary
in the ordinary course of performing his duties under this Agreement. Upon
termination of Employee's employment or consultancy with the Consolidated
Company for any reason, Employee shall promptly deliver to the Consolidated
Company all materials, documents, data, equipment, and other physical property
of any nature containing or pertaining to any Confidential Information, and
Employee shall not take from the Consolidated Company's premises any such
material or equipment or any reproduction thereof without the written consent of
the Consolidated Company.
10. Inventions
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10.1 Disclosure of Inventions. Employee hereby agrees that if he
conceives, learns, makes or first reduces to practice, either alone or jointly
with others, any "Employment Invention" (as defined in Section 10.3 below)
during his employment by the Consolidated Company, either as an employee or as a
consultant, he will promptly disclose such Employment Invention to the
Consolidated Company or to any person designated by it.
10.2 Ownership, Assignment, Assistance, and Power of Attorney. All
Employment Inventions (as defined in Section 10.3 below) shall be the sole and
exclusive property of the Consolidated Company, and the Consolidated Company
shall have the right to use and to apply for patents, copyrights, or other
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statutory or common law protection for such Employment Inventions in any
country. Employee hereby assigns to the Consolidated Company any rights which he
may acquire in such Employment Inventions. Furthermore, Employee agrees to
assist the Consolidated Company in every proper way at the Consolidated
Company's expense to obtain patents, copyrights, and other statutory common law
protections for such Employment Inventions in any country and to enforce such
rights from time to time. Specifically, Employee agrees to execute all documents
as the Consolidated Company may desire for use in applying for and in obtaining
or enforcing such patents, copyrights, and other statutory or common law
protections together with any assignments thereof to the Consolidated Company or
to any person designated by the Company. Employee's obligations under this
Section 10 shall continue beyond the termination of this Agreement, but the
Consolidated Company shall compensate Employee at a rate agreed upon by Employee
and the Consolidated Company pursuant to negotiations in good faith after such
termination for the time, which Employee actually spends at the Consolidated
Company's request in rendering such assistance.
10.3 Employment Inventions. The definition of Employment Invention as
used in this Section 10 is as follows:
"Employment Invention" means any invention or part thereof conceived,
developed, reduced to practice, or created by an employee which is:
(a) conceived, developed, reduced to practice, or created by the
employee:
(i) within the scope of his employment;
(ii) on his employer's time; or
(iii) with the aid, assistance, or use of any of his employer's
property, equipment, facilities, supplies, resources, or
intellectual property;
(b) the result of any work, services, or duties performed
by an employee for his employer;
(c) related to the industry or trade of the employer; or
(d) related to the current or demonstrably anticipated
business, research, or development of the employer.
10.4 Exclusion of Prior Inventions. Exhibit A attached hereto is a
complete list by Employee of all inventions which Employee has conceived,
learned, made or first reduced to practice, either alone or jointly with others,
prior to or during his employment with the Company and which he desires to
exclude from the operation of this Agreement. If no inventions are listed on
this Exhibit A, Employee represents that he has made no such inventions at the
time of signing this Agreement. The Company hereby acknowledges and agrees that,
for all purposes of this Agreement, none of the inventions listed on Exhibit A
shall be treated as Employment Inventions hereunder.
10.5 Inventions of Third Parties. Employee shall not disclose to the
Consolidated Company, use in the course of his employment, or incorporate into
the Consolidated Company's products or processes any confidential or proprietary
information or inventions that belong to a third party, unless the Consolidated
Company has received authorization from such third party.
11. No Conflicts. Employee hereby represents that his performance of all
the terms of this Agreement and his work as an employee of the Company does not
breach any oral or written agreement which he has made prior to his employment
with the Company.
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12. Equitable Remedies. Employee acknowledges and agrees that the breach or
threatened breach by him of certain provisions of this Agreement, including
without limitation Sections 8, 9, and 10 above, would cause irreparable harm to
the Consolidated Company for which damages at law would be an inadequate remedy.
Accordingly, Employee hereby agrees that in any such instance the Company shall
be entitled to seek (without prior mediation or arbitration) injunctive or other
equitable relief in any state or federal court within or without the State of
Nevada in addition to any other remedy to which it may be entitled. Employee
hereby submits to the jurisdiction of any courts within the City of Reno in the
State of Nevada and agrees not to assert such venue is inconvenient.
13. Assignment. This Agreement is for the unique personal services of
Employee and is not assignable or delegable in whole or in part by Employee
without the consent of the Board. This Agreement may not be assigned or
delegated in whole or in part by the Company without the written consent of the
Employee; provided, however, this Agreement may be assigned by the Company
without Employee's prior written consent if such assignment is made to an entity
acquiring substantially all of the business or assets of the Company.
14. Waiver or Modification. Any waiver, modification, or amendment of any
provision of this Agreement shall be effective only if in writing in a document
that specifically refers to this Agreement and such document is signed by the
parties hereto.
15. Entire Agreement. This Agreement constitutes the full and complete
understanding and agreement of the parties hereto with respect to the subject
matter covered herein and supersedes all prior oral or written understandings
and agreements with respect thereto.
16. Severability. If any provision of this Agreement is found to be
unenforceable by a court of competent jurisdiction, the remaining provisions
shall nevertheless remain in full force and effect.
17. Attorneys' Fees. Should either Company or Employee default in any of
the covenants contained in this Agreement, or in the event a dispute shall arise
as to the meaning of any term of this Agreement, the defaulting or nonprevailing
party shall pay all costs and expenses, including reasonable attorneys' fees,
that may arise or accrue from enforcing this Agreement, securing an
interpretation of any provision of this Agreement, or in pursuing any remedy
provided by applicable law whether such remedy is pursued or interpretation is
sought by the filing of a lawsuit, an appeal, or otherwise.
18. Confidentiality. Each of the parties acknowledges that the common stock
of the Parent is registered under the Securities Exchange Act of 1934, as
amended, and a result, the Company may be required to, and hereby has
authorization to, file this Agreement or any amendment hereto with the
Securities and Exchange Commission without requesting confidential treatment for
any portion hereof.
19. Notices. Any notice required hereunder to be given by either party
shall be in writing and shall be delivered personally or sent by certified or
registered mail, postage prepaid, or by private courier, with written
verification of delivery, or by facsimile or other electronic transmission to
the other party to the address or facsimile number set forth below or to such
other address or facsimile number as either party may designate from time to
time according to this provision. A notice delivered personally or by facsimile
or electronic transmission shall be effective upon receipt. A notice delivered
by mail or by private courier shall be effective on the third day after the day
of mailing:
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(a) To Employee at: Xxxxxxx Xxxxxxxxx
0000 Xxxx Xxxxx Xxxxxxx
Xxxx, Xxxxxx 00000
(b) To the Company at: Altair Nanotechnologies Inc.
000 Xxxxxx Xxx
Xxxx, Xxxxxx 00000
Facsimile No: (000) 000-0000
20. Disputes; Governing Law; Arbitration
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(a) Except as provided in Section 12, any dispute concerning the
interpretation or construction of this Agreement or his employment or service
with Company, shall be resolved by confidential mediation or binding arbitration
in Reno, Nevada. The parties shall first attempt mediation with a neutral
mediator agreed upon by the parties. If mediation is unsuccessful or if the
parties are unable to agree upon a mediator, the dispute shall be submitted to
arbitration pursuant to the procedures of the American Arbitration Association
("AAA") or other procedures agreed to by the parties. All arbitration
proceedings shall be conducted by a neutral arbitrator mutually agreed upon by
the parties from a list provided by AAA. The decision of the arbitrator shall be
final and binding on all parties. The costs of mediation and arbitration shall
be borne equally by the parties.
(b) This Agreement shall be construed in accordance with and
governed by the statutes and common law of the State of Nevada. To the extent
this Agreement expressly permits any dispute to be resolved other than through
arbitration or mediation, the exclusive venue for any such action shall be the
state and federal courts located in Salt Lake City, Utah, and the parties each
hereby submit to the jurisdiction of such courts for purposes of this Agreement.
21. Counterparts; Facsimile. This Agreement may be executed in multiple
counterparts, all of which taken together shall form a single Agreement. A
facsimile copy of this Agreement or any counterpart thereto shall be valid as an
original.
[intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, Employee has signed this Altair Executive
Employment Agreement personally and the Company has caused this Agreement to be
executed by its duly authorized representative.
COMPANY:
ALTAIR NANOMATERIALS INC.
a Nevada corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxxx Xxxxxxxxx,
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Xxxxxxx Xxxxxxxxx,
an individual
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EXHIBIT A
PRIOR INVENTIONS
[None]
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