EXHIBIT 10.2
EMPLOYMENT AGREEMENT
1. EMPLOYMENT AGREEMENT, effective as of 15 November, 2005 (the "Start Date")
between Implantable Vision, Inc, a Utah Corporation (the "COMPANY") residing at
00000 Xxxxxx Xx., Xxxxx Xxxxxxx, XX 00000 and Igor Valyunin, an individual
residing at 0000 Xxxxx Xxxx Xx., Xxxx 000, Xxxxxxxxx, XX 00000 (the "EMPLOYEE"),
hereby defines the terms under which the EMPLOYEE shall provide his business
management services on behalf of COMPANY.
2. BACKGROUND. The COMPANY currently is developing its proprietary business
model to commercialize phakic refractive lenses and other ophthalmic products
and/or services. The COMPANY acknowledges the need to establish a qualified
team, with expertise including but not limited to project management, sales,
clinical, marketing and business planning and implementation. The EMPLOYEE also
acknowledges that the COMPANY is in its early stages and from time to time may
be asked and/or required to perform services outside of its designated roles.
The COMPANY hereby believes that the EMPLOYEE meets its criteria.
3. DUTIES AND RESPONSIBILITIES. During the term of this Agreement, EMPLOYEE
shall serve as the Chief Scientific Officer of the COMPANY reporting directly to
the Chief Executive Officer or the President of the COMPANY, and he shall
perform such duties, and have such powers, authority, functions, duties and
responsibilities for the COMPANY as are reasonably assigned to him by the Chief
Executive Officer, the President and/or the Board of Directors of the COMPANY
and as are consistent with the duties, responsibilities, and activities of a
Chief Scientific Officer of the COMPANY. To the extent that the COMPANY becomes
a division or subsidiary of another entity, EMPLOYEE shall report directly to,
and have such powers, authority, functions, duties and responsibilities as are
reasonably assigned to him by, the Chief Executive Officer, President or
comparable officer of such division or subsidiary.
4. TERM OF THE AGREEMENT. The Term of this Agreement shall be three (3) years
from the Start Date.
5. CASH COMPENSATION. EMPLOYEE shall initially earn cash fees at the rate of one
hundred twenty thousand dollars ($120,000.00) per year. Compensation will be
paid on the 1st and 15th of each month.
5.1. EXPENSES. COMPANY will pay or reimburse EMPLOYEE for business expenses
for travel, lodging and meals which EMPLOYEE incurs in performing
services hereunder and which (i) COMPANY authorizes in writing prior
to the time such expenses are incurred or (ii) if not so authorized in
writing, COMPANY, in its sole discretion, determines to be reasonable
under the circumstances. COMPANY will pay or reimburse EMPLOYEE for
all such expenses promptly (within 30 days) after EMPLOYEE furnishes
COMPANY with receipts or other evidence showing the amount of each
such expense.
5.2. CONVERSION TO EQUITY. At any time, EMPLOYEE can request to receive
Compensation in common stock of COMPANY with COMPANY's written
approval. Compensation will be paid according a warrant package
currently offered by COMPANY and must be stated by an amendment to
this Agreement or by a separate written agreement between COMPANY and
EMPLOYEE.
5.3. INSURANCE. The EMPLOYEE agrees that the COMPANY may at any time and
for the COMPANY's own benefit, apply for and take out life, health,
accident, and/or other insurance covering the EMPLOYEE either
independently or together with others in any amount which the COMPANY
deems to be in its best interests and the COMPANY may maintain any
existing insurance policies on the life of the EMPLOYEE owned by the
COMPANY. The COMPANY shall own all rights in any such insurance
policies and in the cash values and proceeds thereof
IVI Employment Agreement Page 2 of 7
and, except as otherwise provided, the EMPLOYEE shall not have any
right, title or interest therein. The EMPLOYEE agrees to assist the
COMPANY at the COMPANY's expense in obtaining any such insurance by,
among other things, submitting to the customary examinations and
correctly preparing, signing and delivering such applications and
other documents as may be required by insurers.
5.4. TAX WITHHOLDING. The COMPANY may withhold from any amounts payable
under this Agreement such federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
6. CONFIDENTIALITY; INVENTIONS. The EMPLOYEE shall respect and agrees not to use
in any way for his benefit or the benefit of others, except as directed by the
COMPANY, confidential and proprietary information relating to the technologies,
strategies and business practices and information of the COMPANY and/or its
affiliates, which has commercial value to the COMPANY and/or its affiliates and
which the COMPANY and/or its affiliates treats as confidential ("Confidential
Information"). By way of illustration, but not limitation, Confidential
Information includes (a) all ideas, discoveries, inventions, improvements, trade
secrets, formulas, know-how, works of authorship or other intellectual property,
(b) all inventions and other material produced or compiled by the COMPANY in
performing services under this agreement, (c) information labeled "Confidential"
or "Proprietary" or similarly identified by the COMPANY as confidential, (d)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, (e) information concerning supplies, vendors and
customers, including without limitation, past, present and prospective customer
lists, and (f) information regarding the skills and compensation of employees of
the COMPANY. Confidential Information shall not include any information that (i)
is or becomes generally known or available to the public through no fault of you
or your representatives, agents or affiliates, (ii) is known and reduced to
tangible form by you prior to the time it is disclosed to you, (iii) is legally
acquired from a third party who has the right to disclose the information.
EMPLOYEE acknowledges the confidential and proprietary character of the
Confidential Information and agrees not to use, reproduce or disclose in any
form all or any part of the Confidential Information without the prior written
consent of the COMPANY in each instance, except as may be required in the
ordinary course of performing services under this agreement, or as may be
compelled by legal process. Upon termination of this agreement for any reason,
including expiration of the term, the EMPLOYEE agrees to cease using and return
to the COMPANY all whole or partial copies and derivatives of the Confidential
Information (including without limitation material compiled by you pursuant to
this agreement), whether in your possession or under your direct or indirect
control, if requested in writing within thirty (30) days of the EMPLOYEE's date
of termination from the COMPANY.
EMPLOYEE confirms that all confidential information is and shall remain the
exclusive property of the COMPANY. All memoranda, notes, reports, software,
sketches, photographs, drawings, plans, business records, papers or other
documents or computer-stored or disk-stored information kept or made by EMPLOYEE
relating to the business of the COMPANY shall be and will remain the sole and
exclusive property of the COMPANY and shall be promptly delivered and returned
to the COMPANY immediately upon the termination of his employment with the
COMPANY.
EMPLOYEE shall make full and prompt disclosure to the COMPANY of all inventions,
improvements, ideas, concepts, discoveries, methods, developments, software and
works of authorship, whether or not copyrightable, trademarkable or licensable,
which are created, made, conceived or reduced to practice by EMPLOYEE for the
COMPANY during his services with the COMPANY, whether or not during normal
working
IVI Employment Agreement Page 3 of 7
hours or on the premises of the COMPANY (the "Developments"). All Developments
shall be the sole property of the COMPANY, and EMPLOYEE hereby assigns to the
COMPANY, without further compensation, all of his rights, title and interests in
and to the Developments and any and all related patents, patent applications,
copyrights, copyright applications, trademarks and tradenames in the United
States and elsewhere.
EMPLOYEE shall assist the COMPANY in obtaining, maintaining and enforcing
patent, copyright and other forms of legal protection for intellectual property
in any country. Upon the request of the COMPANY, EMPLOYEE shall sign all
applications, assignments, instruments and papers and perform all acts necessary
or desired by the COMPANY in order to protect its rights and interests in any
Developments.
This Section shall survive the termination of this agreement for any reason,
including but not limited to expiration of the term of this agreement.
7. RESTRICTION ON COMPETITION. The EMPLOYEE shall not, without the prior written
consent of the COMPANY, directly or indirectly, for himself or for any other
person, whether as a proprietor, partner, EMPLOYEE, agent, consultant, director,
officer, shareholder or participant in any business entity other than the
COMPANY, engage in the business of developing, marketing or distributing
products that in any way infringe on claims made in issued or pending patents
from the COMPANY anywhere in the world during the term of this Agreement and for
two (2) year following the termination of this Agreement.
8. TERMINATION TERMS. The COMPANY may terminative this Agreement at any time for
any reason upon payment to the EMPLOYEE of any outstanding accrued amounts owed
the EMPLOYEE plus the balance of compensation due to the End Date as defined by
this Agreement. The COMPANY may also terminate the EMPLOYEE for cause upon
delivering to him a written notice specifying such cause. If the COMPANY
exercises such right, the COMPANY shall be obligated to pay the EMPLOYEE any
outstanding accrued amounts owed the EMPLOYEE at the time of termination. As
used herein, the term "cause" shall mean:
8.1. Misappropriating any funds or any material property of the COMPANY as
determined by an United States court of law;
8.2. Obtaining or attempting to obtain any personal profit from any
transaction, other than as contemplated by this Agreement, in which
the EMPLOYEE has an interest which is adverse to the interest of the
COMPANY unless the COMPANY shall first give its consent to such
transaction;
8.3. Any breach of this Agreement, provided that such breach shall have
continued for a period of thirty (30) days following notice thereof;
8.4. Failure to perform the duties contemplated by this Agreement, provided
that such failure to perform shall have continued for a period of
thirty (30) days following notice thereof;
8.5. Conviction of a felony in an United States court of law;
8.6. The death of the EMPLOYEE or his disability for a period of three (3)
consecutive months.
9. SUCCESSORS. This Agreement is personal to the EMPLOYEE and, without the prior
written consent of the COMPANY, shall not be assignable by the EMPLOYEE
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the EMPLOYEE's legal
representatives.
This Agreement shall inure to the benefit of and be binding upon the COMPANY and
its successors. The
IVI Employment Agreement Page 4 of 7
COMPANY shall require any successor to all or substantially all of the business
and/or assets of the COMPANY, whether direct or indirect, by purchase, merger,
consolidation, acquisition of stock, or otherwise, expressly to assume and agree
to perform this Agreement in the same manner and to the same extent as the
COMPANY would be required to perform if no such succession had taken place.
10. REPRESENTATIONS AND WARRANTIES. EMPLOYEE represents and warrants to COMPANY
that EMPLOYEE:
10.1. has responded accurately and honestly to requests for professional
background and credentials;
10.2. has made no misrepresentations, whether express or by omission, of
material fact regarding your professional history or credentials; and
10.3. shall immediately notify the COMPANY if there is any material change
in the status of representations made to the COMPANY.
10.4. acknowledges that the COMPANY has relied on the accuracy of the
foregoing representations, warranties and acknowledgements in entering
into this agreement.
10.5. agrees to perform all services in accordance with the policies,
procedures and rules established by the COMPANY and will comply with
all laws, rules and regulations that are generally applicable to the
COMPANY or its subsidiaries and their respective employees, directors
and officers.
10.6. will devote his best efforts to the performance of his duties and
responsibilities on behalf of the COMPANY. Best Efforts need to be
determined by the Management Board procedures. This agreement does not
preclude EMPLOYEE from working for a company on other products deemed
not to be in competition with the products or technology offered by
COMPANY.
10.7. agrees to provide COMPANY with reasonable notice of any new company
and/or product with which he is working and with information regarding
any potential conflicts during the term of this Agreement.
10.8. agrees not to support (by way of investment or otherwise) any
activity that may be competitive with the business of the COMPANY as
it is defined at the signing of this agreement or similarly pose a
conflict of interest with that business.
10.9. has full power and lawful authority to perform under this Agreement
on the terms and conditions herein set forth.
11. GENERAL PROVISIONS.
11.1. This Agreement, combined with the Attachments, constitutes the full
understanding between the parties with reference to the subject matter
hereof, and no statements or agreements by or between the parties,
whether orally or in writing, except as provided for elsewhere in this
Section 9, made prior to or at the signing hereof, shall vary or
modify the written terms of this Agreement. Neither party shall claim
any amendment, modification, or release from any provisions of this
Agreement by mutual agreement, acknowledgment, or otherwise, unless
such mutual agreement is in writing, signed by the other party, and
specifically states that it is an amendment to this Agreement. The
terms of the recitals set forth above are incorporated by reference
and made a part of this Agreement.
11.2. This Agreement, and the rights of the parties under this Agreement,
may not be sold, assigned or otherwise transferred without the prior
written consent of the other parties, said approval not to be
IVI Employment Agreement Page 5 of 7
unreasonably withheld. This Agreement is binding upon the parties'
heirs, successors and assigns. The duties and obligations of the
EMPLOYEE under this letter, being personal, may not be delegated or
assigned.
11.3. This Agreement shall be construed and enforced in accordance with the
laws of the State of Ohio. The parties hereby consent to the exclusive
personal jurisdiction and venue of the federal courts located in
Cleveland, Ohio and the state courts located in such District for any
proceeding, claims or disputes arising out of or in connection with
this agreement, and further consent that any process, notice of motion
or other application to the court or a judge thereof may be served
outside of the State of Ohio as permitted under the laws of the State
of Ohio.
11.4. In the unlikely event of a dispute between the COMPANY and the
EMPLOYEE resulting from the relationship with the COMPANY defined by
this Agreement or from the termination of this Agreement by the
COMPANY (other than matters involving the disclosure of any
confidential information or breach of any agreements for which the
COMPANY may seek and obtain injunctive relief), the parties each agree
to submit the dispute to final and binding arbitration in Cleveland,
Ohio in accordance with the then-applicable rules for the resolution
of employment disputes, as the exclusive remedy for such controversy,
claim or dispute. This means that there will be no court or jury trial
of disputes between us concerning the business relationship defined by
this Agreement or the termination of this Agreement by the COMPANY.
11.5. All notices or other communications required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by fax or email, with date and
time of transmittal recorded therein, or by registered or certified
mail, postage prepaid or via national or international courier,
addressed as to the party entitled to notice at the address set forth
on the books and record of the COMPANY, or such other address as is
subsequently provided from such party to the other party.
11.6. If any provision of this Agreement is unenforceable or illegal by any
court of competent jurisdiction or an arbitrator, the remainder of the
Agreement shall remain in full force and effect. If any one or more of
the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to duration, geographical scope,
activity or subject, such provision shall be construed by limiting and
reducing it so as to be enforceable to the extent compatible with the
applicable law.
11.7. This Agreement may be executed in two or more counterparts, each of
which, whether photocopy, facsimile or ink, shall be deemed an
original, but all of which together shall constitute one instrument.
No modification or amendment of this Agreement will be effective
unless it is in writing and signed by both the COMPANY and the
EMPLOYEE.
11.8. No delay or failure of any party to exercise any right under this
Agreement shall waive such right.
11.9. The COMPANY and EMPLOYEE agree that facsimile transmissions,
including this Agreement, directed to the other parties and exhibiting
the time of the sending, shall be deemed to the original, binding, and
an enforceable agreement, contract or document.
IVI Employment Agreement Page 6 of 7
Contact addresses and phone numbers are:
COMPANY:
Implantable Vision, Inc.
00000 Xxxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
Phone: 0.000.000.0000
Fax: 0.000.000.0000
EMPLOYEE:
Igor Valyunin
0000 Xxxxx Xxxx Xx.
Xxxx 000
Xxxxxxxxx, XX 00000
or to such other address as the addressee shall have designated by
notice to the other party given in accordance with this Section. Any
notice or other communication shall be deemed to have been duly given
if personally delivered or mailed via registered or certified mail,
postage prepaid return receipt requested.
IVI Employment Agreement Page 7 of 7
In Witness Whereof, the parties have duly executed this Agreement as of the
date of latest signature below to be effective November 15, 2005.
FOR: COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx
Secretary
Implantable Vision, Inc.
Date of Signature:
---------------
FOR: EMPLOYEE
By: /s/ Igor Valyunin
----------------------------------
Igor Valyunin
Date of Signature:
---------------
