EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.2
This
EMPLOYMENT AGREEMENT is made and entered into effective as of May 1, 2008 (the
“Effective Date”) by and between CRC Crystal Research Corporation (the
“Company”), and Lt. Gen. Xxxxxxx X. Xxxxxxx Xx., the undersigned individual
(“Executive”).
RECITAL
The
Company and Executive desire to enter into an Employment Agreement setting forth
the terms and conditions of Executive’s employment with the
Company.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, the Company and Executive agree as follows:
1. Employment.
(a) Term. The Company
hereby employs Executive to serve as President and to serve in such additional
or different position or positions as the Company may determine in its sole
discretion. As President, the Executive shall be an Officer of the Company. The
term of employment shall be for a period of one (1) year (“Employment Period”)
to commence on the Effective Date, and renewable at the Company’s discretion on
each anniversary.
(b) Duties and
Responsibilities. Executive will be responsible for the formation and
implementation of the Company’s Program and other duties as agreed upon with the
Company’s Board of Directors. The Executive shall report to the Chief Executive
Officer
(c) Location. The initial
principal location at which Executive shall perform services for the Company
shall be at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxx, Xxxxxxx 00000. Until such time as a
corporate office is established and a full compensation level has been reached,
employee shall have the right to telecommute and will not be required to
establish full time residence at the corporate headquarters
location.
2. Compensation.
(a) Base Salary.
Executive shall be paid a base salary (“Base Salary”) at the annual rate of
$130,000, payable twice monthly consistent with Company’s payroll practices. The
annual Base Salary shall be reviewed on an annual basis by the Board of
Directors or Compensation Committee to determine if such Base Salary should be
increased in recognition of services to the company.
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(b) Payment. Payment of
all compensation to Executive hereunder shall be made in accordance with the
relevant Company policies in effect from time to time, including normal payroll
practices, and shall be subject to all applicable employment and withholding
taxes. It is understood and agreed to, by both the Executive and the Company,
that payment of the agreed to salary will not commence until the Company has
received funding or revenues sufficient to support the payment of salaries to
employees. Additionally, the Executive and the Company agree that should cash
shortfalls preclude payment of the Executive’s salary that any unpaid salary
shall be accrued. All accrued unpaid salary will be converted quarterly
into options to acquire shares of the Common Stock of the Company pursuant to
the terms of our 2008 Stock Plan.
(c) Bonus. Executive
shall also be entitled to a one-time bonus of $15,000 upon receipt of funding
sufficient to support payment to employees, as set forth under Section 2(b)
above, subject to the discretion of the Board of Directors. Other bonus payments
shall be determined at the sole discretion of the Board of
Directors.
3. Other Employment
Benefits.
(a) Business Expenses.
Upon submission of itemized expense statements in the manner specified by the
Company, Executive shall be entitled to reimbursement for reasonable travel and
other reasonable business expenses duly incurred by Executive in the performance
of his duties under this Agreement. Until the Company has received funding or
revenues sufficient to support the payment all expenses need to be
pre-approved. Executive shall be reimbursed for reasonable moving
expenses and temporary lodging should he be required to relocate to Mesa,
AZ.
(b) Benefit Plans.
Executive shall be entitled to participate in the Company’s medical and dental
plans, life and disability insurance plans and retirement plans pursuant to
their terms and conditions and once implemented by the Company. It is understood
by the Executive that no Benefit Plan currently exists but that the Executive
shall immediately be entitled
to Benefits once a Plan is executed and in force. There is no accrual of
benefits prior to execution and implementation of Plan. Executive shall be
entitled to participate in any other benefit plan offered by the Company to its
employees during the term of this Agreement (other than stock option or stock
incentive plans, which are governed by Section 3(d) below). Nothing in this
Agreement shall preclude the Company or any affiliate of the Company from
terminating or amending any employee benefit plan or program from time to
time. Should the Executive decline benefits made available to other
employees he will be entitled to one-half (1/2) the company contribution paid
for or to each individual. When the company establishes Key Man life
insurance the Executive will be entitled to a coverage by Key Man life insurance
of which one-half (1/2) of the proceeds will be paid to a beneficiary of his
choice.
(c) Vacation. Executive
shall be entitled to three (3) weeks of vacation each year of full employment,
exclusive of legal holidays, as long as the scheduling of Executive’s vacation
does not interfere with the Company’s normal business
operations.
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(d) Stock
Options. Executive shall be entitled to options to acquire 200,000 shares of the
Common Stock of the Company pursuant to the terms of our 2008 Stock Plan.
Issuance of the options shall be in accordance with all applicable securities
laws and the other terms and conditions of our 2008 Stock Incentive Plan and the
stock option agreement to be executed between the Company and Executive (the
“Stock Option Agreement”). Regardless of reason for employment termination
the stock option entitlements provided as compensation or bonus will not expire
for a period of five years.
(e) No
Other Benefits. Executive understands and acknowledges that the compensation
specified in Sections 2 and 3 of this Agreement shall be in lieu of any and all
other compensation, benefits and plans.
4. Executive’s Business
Activities. Executive shall devote the substantial portion of his entire
business time, attention and energy exclusively to the business and affairs of
the Company and its affiliates, as its business and affairs now exist and as
they hereafter may be changed. (Executive may serve as a member of the Board of
Directors of other organizations that do not compete with the Company, and may
participate in other professional, civic, governmental organizations and
activities that do not materially affect his ability to carry out his duties
hereunder.)
5. Termination of
Employment.
(a) For Cause.
Notwithstanding anything herein to the contrary, the Company may terminate
Executive’s employment hereunder for cause for any one of the following reasons:
(1) conviction of a felony, any act involving moral turpitude, or a misdemeanor
where imprisonment is imposed; (2) commission of any act of theft, fraud,
dishonesty, or falsification of any employment or Company records; (3) improper
disclosure of the Company’s confidential or proprietary information; (4) any
action by the Executive which has a detrimental effect on the Company’s
reputation or business; (5) Executive’s failure or inability to perform any
reasonable assigned duties after written notice from the Company of, and a
reasonable opportunity to cure, such failure or inability; (6) any breach of
this Agreement, which breach is not cured within ten (10) days following written
notice of such breach; (7) a course of conduct amounting to gross incompetence;
(8) chronic and unexcused absenteeism; (9) unlawful appropriation of a corporate
opportunity; or (10) misconduct in connection with the performance of any of
Executive’s duties, including, without limitation, misappropriation of funds or
property of the Company, securing or attempting to secure personally any profit
in connection with any transaction entered into on behalf of the Company,
misrepresentation to the Company, or any violation of law or regulations on
Company premises or to which the Company is subject. Upon termination of
Executive’s employment with the Company for cause, the Company shall be under no
further obligation to Executive, except to pay all accrued but unpaid base
salary and accrued vacation to the date of termination thereof.
(b) Without Cause. The
Company may terminate Executive’s employment hereunder at any time without
cause, provided, however, that Executive shall be entitled to severance pay in
the amount of four (4) weeks of Base Salary in addition to accrued but unpaid
Base Salary and accrued vacation, less deductions required by law, but if, and
only if, Executive executes a valid and comprehensive release of any and all
claims that the Executive may have against the Company in a form provided by the
Company and Executive executes such form within seven (7) days of
tender.
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(c) Resignation. Upon
termination of employment, Executive shall be deemed to have resigned from the
Board of Directors of the Company if he is a director. With the approval of
the Board the Executive may remain as Director.
(d) Cooperation. After
notice of termination, Executive shall cooperate with the Company, as reasonably
requested by the Company, to effect a transition of Executive’s responsibilities
and to ensure that the Company is aware of all matters being handled by
Executive.
6. Disability of
Executive. The Company may terminate this Agreement without liability if
Executive shall be permanently prevented from properly performing his essential
duties hereunder with reasonable accommodation by reason of illness or other
physical or mental incapacity for a period of more than one hundred twenty 120
consecutive days. Upon such termination, Executive shall be entitled to all
accrued but unpaid Base Salary and vacation.
7. Death of Executive.
In the event of the death of Executive during the Employment Period, the
Company’s obligations hereunder shall automatically cease and terminate;
provided, however, that within 15 days the Company shall pay to Executive’s
heirs or personal representatives Executive’s Base Salary and accrued vacation
accrued to the date of death.
8. Confidential Information and
Invention Assignments. Executive is simultaneously executing a
Confidential Information and Invention Assignment Agreement (the “Confidential
Information and Invention Assignment Agreement”). The obligations under the
Confidential Information and Invention Assignment Agreement shall survive
termination of this Agreement for any reason.
9. Exclusive Employment.
During employment with the Company, Executive will not do anything to compete
with the Company’s present or contemplated business, nor will he plan or
organize any competitive business activity. Executive will not enter into any
agreement which conflicts with his duties or obligations to the Company.
Executive will not during his employment or within one (1) year after it ends,
without the Company’s express written consent, directly or indirectly, solicit
or encourage any employee, agent, independent contractor, supplier, customer,
consultant or any other person or company to terminate or alter a relationship
with the Company.
10. Assignment and
Transfer. Executive’s rights and obligations under this Agreement shall
not be transferable by assignment or otherwise, and any purported assignment,
transfer or delegation thereof shall be void. This Agreement shall inure to the
benefit of, and be binding upon and enforceable by, any purchaser of
substantially all of Company’s assets, any corporate successor to Company or any
assignee thereof.
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11. No Inconsistent
Obligations. Executive is aware of no obligations, legal or otherwise,
inconsistent with the terms of this Agreement or with his undertaking employment
with the Company. Executive will not disclose to the Company, or use, or induce
the Company to use, any proprietary information or trade secrets of others.
Executive represents and warrants that he or she has returned all property and
confidential information belonging to all prior employers.
12. Miscellaneous.
(a)
Attorneys’
Fees. Should either party hereto, or any heir, personal representative,
successor or assign of either party hereto, resort to legal proceedings in
connection with this Agreement or Executive’s employment with the Company, the
party or parties prevailing in such legal proceedings shall be entitled, in
addition to such other relief as may be granted, to recover its or their
reasonable attorneys’ fees and costs in such legal proceedings from the
non-prevailing party or parties; provided, however, that nothing herein is
intended to affect the provisions of Section 12(l).
(b) Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Arizona without regard to conflict of law principles.
(c) Entire Agreement.
Except with respect to the 2008 Stock Incentive Plan and Stock Option Agreement
referenced in Section 3(d), this Agreement, together with the attached exhibits
and the Confidential Information and Invention Assignment Agreement, contains
the entire agreement and understanding between the parties hereto and supersedes
any prior or contemporaneous written or oral agreements, representations and
warranties between them respecting the subject matter hereof.
(d) Amendment. This
Agreement may be amended only by a writing signed by Executive and by a duly
authorized representative of the Company.
(e) Severability. If any
term, provision, covenant or condition of this Agreement, or the application
thereof to any person, place or circumstance, shall be held to be invalid,
unenforceable or void, the remainder of this Agreement and such term, provision,
covenant or condition as applied to other persons, places and circumstances
shall remain in full force and effect.
(f) Construction. The
headings and captions of this Agreement are provided for convenience only and
are intended to have no effect in construing or interpreting this Agreement. The
language in all parts of this Agreement shall be in all cases construed
according to its fair meaning and not strictly for or against the Company or
Executive.
(g) Rights Cumulative.
The rights and remedies provided by this Agreement are cumulative, and the
exercise of any right or remedy by either party hereto (or by its successor),
whether pursuant to this Agreement, to any other agreement, or to law, shall not
preclude or waive its right to exercise any or all other rights and
remedies.
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(h) Non-waiver. No
failure or neglect of either party hereto in any instance to exercise any right,
power or privilege hereunder or under law shall constitute a waiver of any other
right, power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in a written
instrument signed by the party
to be charged and, in the case of the Company, by an officer of the Company
(other than Executive) or other person duly authorized by the
Company.
(i)
Remedy for Breach;
Attorneys’ Fees. The parties hereto agree that, in the event of breach or
threatened breach of any covenants of Executive, the damage or imminent damage
to the value and the goodwill of the Company’s business shall be inestimable,
and that therefore any remedy at law or in damages shall be inadequate.
Accordingly, the parties hereto agree that the Company shall be entitled to
injunctive relief against Executive in the event of any breach or threatened
breach of any of such provisions by Executive, in addition to any other relief
(including damages) available to the Company under this Agreement or under law.
The prevailing party in any action instituted pursuant to this Agreement shall
be entitled to recover from the other party its reasonable attorneys’ fees and
other expenses incurred in such action.
(j) Notices. Any notice,
request, consent or approval required or permitted to be given under this
Agreement or pursuant to law shall be sufficient if in writing, and if and when
sent by certified or registered mail, with postage prepaid, to Executive’s
residence (as noted in the Company’s records), or to the Company’s principal
office, as the case may be.
(k) Assistance in
Litigation. Executive shall, during and after termination of employment,
upon reasonable notice, furnish such information and proper assistance to the
Company as may reasonably be required by the Company in connection with any
litigation in which it or any of its subsidiaries or affiliates is, or may
become a party; provided, however, that such assistance following termination
shall be furnished at mutually agreeable times and for mutually agreeable
compensation.
(l) Arbitration. Any
controversy, claim or dispute arising out of or relating to this Agreement or
the employment relationship, either during the existence of the employment
relationship or afterwards, between the parties hereto, their assignees, their
affiliates, their attorneys, or agents, shall be settled by arbitration in
Phoenix, Arizona. Such arbitration shall be
conducted in accordance with the then prevailing commercial arbitration rules of
the American Arbitration Association (but the arbitration shall be in front of
an arbitrator appointed by JAMS/Endispute (“JAMS”), with the following
exceptions if in conflict: (a) one arbitrator shall be chosen by JAMS; (b) each
party to the arbitration will pay its pro rata share of the expenses and fees of
the arbitrator(s), together with other expenses of the arbitration incurred or
approved by the arbitrator(s); and (c) arbitration may proceed in the absence of
any party if written notice (pursuant to the JAMS’ rules and regulations) of the
proceedings has been given to such party. The parties agree to abide by all
decisions and awards rendered in such proceedings. Such decisions and awards
rendered by the arbitrator shall be final and conclusive and may be entered in
any court having jurisdiction thereof as a basis of judgment and of the issuance
of execution for its collection. All such controversies, claims or disputes
shall be settled in this manner in lieu of any action at law or equity; provided
however, that nothing in this subsection shall be construed as precluding the
Company from bringing an action for injunctive relief or other equitable relief
or relief under the Confidential Information and Invention Assignment Agreement.
The arbitrator shall not have the right to award punitive damages, consequential
damages, lost profits or speculative damages to either party. The parties shall
keep confidential the existence of the claim, controversy or disputes from third
parties (other than the arbitrator), and the determination thereof, unless
otherwise required by law or necessary for the business of the Company. The
arbitrator(s) shall be required to follow applicable law. IF FOR ANY REASON THIS
ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER
INVOLVING THE PARTIES HERETO.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date set forth below.
| CRC Crystal Research Corporation | EXECUTIVE: | |||
|
/s/
Xxxxx X.
Pandelisev
|
/s/
Xxxxxxx X. Xxxxxxx Xx.
|
|||
|
Name:
Xx Xxxxx X. Pandelisev
|
Name:
Lt. Gen. Xxxxxxx X. Xxxxxxx Xx.
|
|||
|
Title: Chief
Executive Officer
|
Title: President
|
|||
| Date: May 23, 2008 | Date: May 23, 2008 |
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