EXECUTIVE EMPLOYMENT AGREEMENT Dated as of April 19, 2021 Between NANO INNOVATIONS INC. (the “Company”) and (the “Executive”)
Exhibit 10.13
EXECUTIVE EMPLOYMENT AGREEMENT
Dated as of April 19, 2021
Between
NANO INNOVATIONS INC.
(the “Company”)
and
R. Xxxxxxx Xxxxxx
(the “Executive”)
NANO INNOVATIONS INC.
TABLE OF CONTENTS
| RECITALS | 1 |
| ARTICLE 1 –TERM | 1 |
| Section 1.1 Indefinite Term | 1 |
| ARTICLE 2 - TITLE, SERVICES, REPORTING AND DUTIES | 1 |
| Section 2.1 Title and Services | 1 |
| Section 2.2 Conditions | 2 |
| Section 2.3 Subsidiaries | 2 |
| Section 2.4 Duties | 2 |
| ARTICLE 3 - PLACE OF EMPLOYMENT | 3 |
| Section 3.1 Calgary Based | 3 |
| ARTICLE 4 - COMPENSATION AND BENEFITS | 3 |
| Section 4.1 Base Salary | 3 |
| Section 4.2 Increase in Base Salary | 3 |
| Section 4.3 Performance Bonuses | 4 |
| Section 4.4 Payment of Compensation and Status as a Taxable Employee | 4 |
| ARTICLE 5 - ANNUAL VACATION | 4 |
| Section 5.1 Period | 4 |
| ARTICLE 6 - EXPENSES | 5 |
| Section 6.1 Reimbursement of Expenses | 5 |
| ARTICLE 7 - TERMINATION | 5 |
| Section 7.1 Definitions | 5 |
| Section 7.2 Termination by the Company for Just Cause | 5 |
| Section 7.3 Voluntary Termination by the Executive | 6 |
| Section 7.4 Death of the Executive | 6 |
| Section 7.5 No Payments in Certain Events | 6 |
| Section 7.6 Payments in the Event of Termination by Company Without Just Cause | 6 |
| Section 7.7 Payments in the Event of Termination upon a Change of Control | 7 |
| Section 7.8 Executive to Provide Release and Resignation | 8 |
| Section 7.9 Manner of Payment | 8 |
| Section 7.10 Return of Assets and Documents | 8 |
| ARTICLE 8 - CONFIDENTIALITY | 8 |
| Section 8.1 Confidential Information | 8 |
| ARTICLE 9 - NON-COMPETITION AND NON-SOLICITATION | 10 |
| Section 9.1 Non-Competition and Payments for Enforcement by the Company during Restricted Period | 10 |
| Section 9.2 Non-Solicitation | 11 |
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| ARTICLE 10 - OWNERSHIP OF INTELLECTUAL PROPERTY | 11 |
| Section 10.1 Definitions | 11 |
| Section 10.2 Exclusive Property | 12 |
| Section 10.3 Work for Hire | 12 |
| Section 10.4 Disclosure | 12 |
| Section 10.5 Assignment | 12 |
| Section 10.6 Moral Rights | 12 |
| Section 10.7 Further Assistance | 12 |
| Section 10.8 Representations and Warranties | 12 |
| ARTICLE 11 - ARBITRATION | 13 |
| Section 11.1 Matters for Arbitration | 13 |
| Section 11.2 Notice | 13 |
| Section 11.3 Appointments | 13 |
| Section 11.4 Award | 14 |
| ARTICLE 12 - OTHER PROVISIONS | 14 |
| Section 12.1 Waivers and Amendments | 14 |
| Section 12.2 Entire Agreement | 14 |
| Section 12.3 No Representation or Claims | 14 |
| Section 12.4 Governing Law | 14 |
| Section 12.5 Notices | 14 |
| Section 12.6 Assignment | 15 |
| Section 12.7 Survival | 15 |
| Section 12.8 Severability | 15 |
| Section 12.9 Independent Legal Advice | 15 |
| Section 12.10 Enurement | 15 |
| Section 12.11 Further Assurances | 16 |
| Section 12.12 Personal Information | 16 |
| Section 12.13 Captions | 16 |
| Section 12.14 Counterparts | 16 |
NANO INNOVATIONS INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is dated as of the 18th day of April, 2021, between
NANO INNOVATIONS INC., a company incorporated
pursuant to the laws of
the Province of British Columbia, Canada with a registered office at #000,
0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxx, X0X 0X0
(the “Company”)
and
R. Xxxxxxx Xxxxxx, with an address at 000 – 00 Xxxxxx X.X., Xxxxxxx,
Alberta, Canada, T2M 1S3
(the “Executive”)
RECITALS
A. The Company is in the energy storage business and is in the process of acquiring AdvEn Industries Inc. to pursue opportunities in the energy storage business and related IP.
B. The Executive is intended to be the Chief Financial Officer of the Company.
C. The Company and the Executive wish to enter into this Agreement pursuant to which the Executive will be employed as the Chief Financial Officer of the Company on the terms and conditions set forth in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the mutual covenants and provisos herein contained, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1–TERM
Section 1.1 Indefinite Term
The term of the Executive’s employment by the Company under this Agreement is indefinite and has commenced on May 3, 2021, and shall thereafter continue unless and until such employment is earlier terminated by either party as hereinafter provided. For purpose of this Agreement, the Effective Date is deemed to be April 19, 2021, including for the purpose of calculating payments under sections
7.6 and 7.7 of this Agreement.
ARTICLE 2- TITLE, SERVICES, REPORTING AND DUTIES
Section 2.1 Title and Services
(1) The Executive will continue to perform the duties and responsibilities normally and reasonably associated with the office of the Chief Financial Officer which will include, without limitation, those services set out in Schedule “A” (collectively, the “Services”).
(2) The Executive shall be employed to provide the Services on a full-time basis.
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(3) The Executive agrees that the Executive’s duties and responsibilities may be modified as mutually agreed to by the Parties, each acting reasonably.
(4) The Executive will report to the board of directors of the Company (the “Board”), and will undertake and perform the Services until such time that the Company elects a Chief Executive Officer. Upon the appointment of the Chief Executive Officer, the Executive shall report to the Chief Executive Officer.
Section 2.2 Conditions
The Executive’s employment under this Agreement is generally conditional upon the Executive maintaining any required regulatory approvals for his involvement as a public company officer with any stock exchange, securities commission or like authority; and, if applicable, maintaining, in good standing, his professional qualification.
Section 2.3 Subsidiaries
The Executive will perform the Services on behalf of the Company and its subsidiaries. Accordingly, in this Agreement, the term “the Company” means the Company and all of its subsidiaries.
[In the event that the Company is acquired (either directly or through a series of transactions) by a publicly traded company (a “Pubco”) in connection with a going public transaction (a “Going Public Transaction”), the Company will be deemed to include the Pubco or any successor organizations.]
Section 2.4 Duties
(1) The Executive acknowledges that, as a senior officer of the Company, the Executive will owe a fiduciary duty to the Company.
(2) The Executive will also:
| (a) | devote full-time effort and attention to the business and affairs of the Company; |
| (b) | perform the Services in a competent and efficient manner and in a manner consistent with the Executive’s fiduciary obligations to the Company as an executive officer thereof and in compliance with all reasonable Company policies of which the Executive is made aware, and will carry out all lawful instructions and directions from time to time given to the Executive in relation to the performance of the Services; |
| (c) | use all commercially reasonable efforts to promote the interests and goodwill of the Company; |
| (d) | comply with all Company policies and codes of business ethics, as adopted by the Board from time to time, including the Company’s confidentiality and xxxxxxx xxxxxxx policies; |
| (e) | in the event of a Going Public Transaction, act as the Chief Financial Officer or an equivalent officer of Pubco, as requested by the Board; and |
| (f) | not undertake any other business or occupation or become a director or officer, employee or agent of any other company, firm, society or person without prior written approval of the Board of Directors, which such approval shall not be unreasonably withheld, and with the exception of the current advisor, director, and officer roles as described in Schedule “B” |
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(3) The Executive warrants that the Executive shall perform the Services and conduct his other activities in a manner which is lawful and reputable and which is designed to bring good repute to the Company, the Company’s business interests and the Executive. In particular, and in this regard, the Executive specifically agrees to provide the Services in a sound and professional manner consistent with performance quality standards of the industry and otherwise in accordance with the terms of this Agreement. In the event that the Board of Directors has a reasonable concern that the Services as performed by the Executive are being conducted in a way contrary to law or are reasonably likely to bring disrepute to the business interests or to the Company’s or the Executive’s reputation, the Company may require that the Executive make such alterations in the Executive’s activities, as the Board of Directors may reasonably require in its sole and absolute discretion to the extent necessary to address such reasonable concerns.
(4) The Executive will not knowingly breach, and will take all reasonable steps to inform himself about compliance with, all Canadian and foreign laws, whether federal, provincial or state, applicable to the Executive’s respective duties and obligations hereunder. In particular, the Executive acknowledges the application of securities laws and his status as an “insider” as defined by such laws in connection with the trading in the Company’s stock and dealing with its confidential information.
ARTICLE 3- PLACE OF EMPLOYMENT
Section 3.1 Calgary Based
The Executive will provide Services based from the Company’s Calgary office, or such other location as reasonably requested and required in Calgary, including but not limited to the Executive’s home office, but understands some travel may be necessary to where the Company currently or may in the future conduct business to the extent reasonably required to perform the Services.
ARTICLE 4- COMPENSATION AND BENEFITS
Section 4.1 Base Salary
The Executive shall receive an annual base salary of C$180,000 as it may be adjusted from time to time in accordance with this Agreement (the “Base Salary”). All such Base Salary will be due and payable by the Company to the Executive pro rata on a semi-monthly basis in arrears, net of applicable statutory deductions, in a manner consistent with the general payroll practice of the Company, or at such other time and in such other manner as the Executive and the Company may agree, from time to time. The Company and Executive agree that upon the completion of a Going Public Transaction or a or any future debt and/or equity financing of $10 million or greater, the Executive’s Base Salary shall automatically increase to C$230,000 on the closing date of such financing or Going Public Transaction.
Section 4.2 Increase in Base Salary
The Company will review, at least annually, the Base Salary payable to the Executive from time to time during the continuance of this Agreement. The Company may, in its discretion, increase (but not decrease) the Base Salary depending on the Executive’s performance of the Services and having due regard to the financial circumstances of the Company.
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Section 4.3 Performance Bonuses
The Executive may receive, but is not guaranteed, an annual cash bonus based on performance targets established by the Board from time to time (the “Bonus”), provided that the setting of performance targets and the grant of any Bonus is at the sole discretion of the Board. The Company agrees that for purposes of this Agreement, the Executive may earn up to 50% of the Executive’s Base Salary in the form of a Bonus, which may also increase in accordance with an annual compensation review.
Stock Options
The Executive will be eligible to participate in the Company’s stock option plan, as in effect from time to time, including any stock option plan of Pubco in the event of a Going Public Transaction (the “Stock Option Plan”). All grants of stock options made to the Executive will be made in accordance with and subject to the terms of the Stock Option Plan (including after applicable blackout periods) and subject to approval of the Board and any stock exchange on which the Company’s shares (or Pubco’s shares) are traded. The grant of any stock options will be made at the discretion of the Board in accordance with the terms of the Stock Option Plan. The Executive acknowledges that the Board will entitled to impose reasonable vesting conditions in connection with any grant of options. The Company and the Executive agree for purposes of this Agreement that the options granted to the Executive shall be based upon such grant amount which is consistent with an allocation typically granted to Chief Financial Officers of a Company in a similar business and stage plus twenty percent (20%) to reflect the Executive’s commitment to the business at this early stage.
Group Insurance and Health Benefits
The Executive will be eligible to participate in, and the Company will pay the premiums in respect of, any group medical and dental insurance, health, extended health, life, long-term disability, and accidental death and dismemberment insurance and pension plans applicable to the executives of the Company from time to time (together, the “Benefits”). Entitlement to the Benefits under any plan shall be determined by the plan carrier in accordance with the terms and conditions of such plan.
Section 4.4 Payment of Compensation and Status as a Taxable Employee
It is hereby also acknowledged and agreed that the Executive will be classified as a taxable employee of the Company for all purposes, such that all compensation which is provided by the Company to the Executive under this Agreement, or otherwise, will be calculated and payable on a net basis for which all required statutory taxes will first be deducted by the Company and remitted on behalf of the Executive to all applicable taxation authorities in each instance.
ARTICLE 5- ANNUAL VACATION
Section 5.1 Period
The Executive will be entitled to four weeks of paid vacation during each calendar year, to be taken at a time or times that are approved by the Company, taking into account the operational requirements of the Company and the need for timely performances of the Services. The Executive will also generally be entitled to all statutory holidays, though the performance of the Services may require that the Executive work on such days, for which the Executive will not be compensated or given time in lieu thereof. Unused vacation may not be carried over for more than twelve months after the completion of each fiscal year.
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ARTICLE 6- EXPENSES
Section 6.1 Reimbursement of Expenses
The Company will reimburse the Executive for all reasonable travel and other out-of-pocket expenses incurred by the Executive directly related to the performance of the Services (collectively, the “Expenses”). The Executive will account for such Expenses in accordance with the policies and directions provided by the Company from time to time in accordance with the Company’s expense policy.
ARTICLE 7- TERMINATION
Section 7.1 Definitions
In this Agreement:
| (a) | “Just Cause” means any material breach of this agreement and any act, omission, behaviour, conduct or circumstance of the Executive that constitutes just cause for dismissal of the Executive at common law, including an act involving gross negligence, or wilful misconduct, commission of a felony, or any material omission in the performance of Services, or the doing or condoning any unlawful or manifestly improper act; and |
| (b) | “Change In Control” means either: (i) a merger or acquisition in which the Company is not the surviving entity; except for a transaction the principal purpose of which is to change the incorporating jurisdiction of the Company; (ii) the sale, transfer or other disposition of all or substantially all of the assets of the Company; or (iii) any other corporate reorganization or business combination in which 50% or more of the outstanding voting stock of the Company is transferred, or exchanged through merger, to different holders in a single transaction of the Company or in a series of related transactions completing within 12 months. For the purposes of this Agreement, Change of Control” does not include a Going Public Transaction. |
| (c) | “Constructive Dismissal” includes, but shall not be limited to a demotion in either title or within the Company organizational structure or a change in the duties of the Executive, any changes in the fundamental terms of this Agreement without the consent of the Executive and to the detriment of the Executive. |
| (d) | “Effective Date of Termination” means the date on which this Agreement has been terminated in accordance with the terms set forth herein. |
Section 7.2 Termination by the Company for Just Cause
The Company may terminate the employment of the Executive under this Agreement summarily, without any notice or any payment in lieu of notice, for Just Cause.
(1) The Executive acknowledges that the Company’s stock option plan may provide for immediate termination of any unexercised Stock Option, even if vested, upon dismissal for Just Cause.
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Section 7.3 Voluntary Termination by the Executive
The Executive may terminate the Executive’s employment under this Agreement for any reason by providing not less than 30 calendar days’ notice in writing to the Company; provided, however, that the Company may waive or abridge any notice period specified in such notice in its sole and absolute discretion, on the condition that the Company pays the Executive a pro-rated amount of his Base Salary for the portion of the notice period that is waived or abridged, and that any bonuses which would have been paid or stock options which would have vested during the notice period that is waived or abridged, are paid to or vested in the Executive.
Section 7.4 Death of the Executive
The employment of the Executive will terminate upon the death or determination of the permanent disability of the Executive which renders performance of the Services contemplated hereby impossible. For further certainty, “permanent disability” means a mental or physical disability that has been certified as permanent by a qualified practicing physician, and which has caused the Executive to be substantially incapable of providing the Services to the Company for six consecutive months or a cumulative period of twelve months over a period of thirty-six consecutive months.
Section 7.5 No Payments in Certain Events
Upon either:
| (a) | termination for Just Cause in accordance with Section 7.2 herein; or |
| (b) | by the voluntary termination of employment by the Executive in accordance with Section 7.3 herein, |
the Executive will be entitled to compensation earned by the Executive before the Effective Date of Termination calculated pro rata up to and including the Effective Date of Termination, reimbursement of any outstanding expenses as of the Effective Date of Termination, any outstanding Vacation pay as of the Effective Date of Termination, and will be entitled to exercise any then vested stock options at any time during 90 calendar days from the Effective Date of Termination, but will not be entitled to any severance or other payments under this Agreement or otherwise.
Section 7.6 Payments in the Event of Termination by Company Without Just Cause
The Company will, if it elects for convenience to terminate the employment of the Executive, or if there is Constructive Dismissal of the Executive, provide the Executive with the following, in accordance with Section 7.9, subsequent to the Effective Date of Termination:
| (a) | payment of the total of: |
| (i) | severance in lieu of notice equal to six months of the then Base Salary only; and |
| (A) | after three years of service increase severance in lieu of notice to 12 months of the then Base Salary; |
| (B) | After six (6) years of service increase severance in lieu of notice to 18 months of the then Base Salary; |
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| (ii) | The average of any bonuses paid to the Executive over the last two years, prorated pursuant to 7.6(a)(i); |
| (iii) | any outstanding Vacation pay as at the Effective Date of Termination; and |
| (iv) | any outstanding Expenses as at the Effective Date of Termination; |
| (b) | maintain the Executive’s then Group Benefits for the length of time determined by section 7.6(a)(i), from the Effective Date of Termination; |
| (c) | subject to the Company’s then stock option plan and the rules and policies of any regulatory authority and stock exchange having jurisdiction over the Company, allow for the Executive to then exercise any unexercised and fully vested portion of the Stock Option on the Effective Date of Termination at any time during 90 calendar days from the Effective Date of Termination. |
Section 7.7 Payments in the Event of Termination upon a Change of Control
If at any time within 12 months after the occurrence of a Change of Control either (i) the Company terminates the Executive’s employment without Just Cause, or (ii) the Executive terminates the Executive’s employment as a result of a Constructive Dismissal, the Company will undertake the following in accordance with Section 7.9 subsequent to the Effective Date of Termination:
| (a) | pay the total of: |
| (i) | severance in lieu of notice equal to twelve months of the then Base Salary only; and |
| (A) | After six (6) years of service increase severance in lieu of notice to 18 months of the then Base Salary; |
| (ii) | the average of any bonuses paid to the Executive over the last two years, prorated pursuant to 7.7(a)(i); |
| (iii) | any outstanding Vacation pay as at the Effective Date of Termination; and |
| (iv) | any outstanding Expenses as at the Effective Date of Termination; |
| (b) | maintain the Executive’s then Group Benefits for a period equal to the notice period the Executive is entitled to under section 7.7 (a)(i) and its subsections, from the Effective Date of Termination; |
| (c) | subject to the Company’s then stock option plan and the rules and policies of any regulatory authority and stock exchange having jurisdiction over the Company, allow for the Executive to then exercise any unexercised and fully vested portion of the Stock Option on the Effective Date of Termination at any time during 90 calendar days from the Effective Date of Termination. |
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Section 7.8 Executive to Provide Release and Resignation
As of the Effective Date of Termination and so soon thereafter as practicable and as a condition of receiving payments provided for under this Agreement upon termination, the Executive will execute and deliver to the Company a full and final release of the Company, in the form which shall be in a form mutually agreed upon within 15 days of the Effective Date of this Agreement, in respect of the Executive’s employment under this Agreement and otherwise against payments of amounts due the Executive hereunder. The Executive will concurrently provide a written resignation from any office held in the Company or any affiliate as of Effective Date of Termination.
Section 7.9 Manner of Payment
The Company will pay the amounts referred to in Section 7.5, Section 7.6 and Section 7.7 herein in a lump sum payment within seven business days after receipt by the Company of the executed full and final release referred to in Section 7.8 herein. Payment over time arrangements may be made by mutual agreement.
Section 7.10 Return of Assets and Documents
All documents and materials in any form or medium and including, but not limited to, files, forms, brochures, books, correspondence, memoranda, manuals and lists (including lists of customers, suppliers, products and prices), all equipment and accessories and again including, but not being limited to, leased automobiles, computers, computer disks, software products, cellular phones and personal digital assistants, all keys, building access cards, parking passes, credit cards, and other similar items pertaining to the business of the Company that may come into the possession or control of the Executive, will at all times remain the property of the Company and, on termination of the Executive’s employment for any reason, the Executive will promptly deliver to the Company all property of the Company in the possession of the Executive or directly or indirectly under the control of the Executive, and will not reproduce or copy any such property or other property of the Company.
ARTICLE 8- CONFIDENTIALITY
Section 8.1 Confidential Information
(1) The Executive acknowledges that:
| (a) | the Executive may, during the course of employment with the Company, acquire information which is confidential in nature or of great value to the Company and its subsidiaries including, without limitation: |
{1} matters or subjects concerning the Company’s budgets, business plans, capital and operating cost estimates, computer programs, corporate assets, cost and pricing data, customer listings, employees, finances, financial reports, licensees, licensors, market projections, marketing strategies, opportunities, products or devices, future projects or products, projects or products under consideration, product release schedules, relationships with third parties, sales forecasts, sales histories, suppliers, vendors, and any other matter relating to the business, financial affairs, operations, products, projects, facilities, or services of the Company, whether in the form of correspondence, data, files, information, notes, records, or any other form, including copies or excerpts thereof;
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{2} any knowledge or information, regardless of form, that is proprietary to or maintained in confidence by the Company, including any knowledge or information relating to algorithms, analyses, chemical formulae, chemical materials, concepts, data, diagrams, designs, discoveries, drawings, equipment, flow charts, engineering, functionality, ideas, improvements, interactive elements, interfaces, inventions, know- how, manufacturing, models, outlines, patents, patent applications, plans, practices, procedures, processes, processing conditions (temperature, pressure, duration and others), research and development projects and findings, scripts, specifications, studies, systems, technical techniques, technology, trade secrets, treatments, working papers, and any other matter relating to the creations, intellectual properties, inventions, or technologies of the Company that is (i) disclosed by the Company or directly on its behalf through any means of communication (whether electronic, written, oral, aural or visual) or personal inspection, to the Executive or (ii) in any way otherwise directly accessed by the Executive whether in the form of correspondence, data, files, information, notes, records, or any other form, including copies or excerpts thereof;
{3} anything (whether tangible or intangible) which is labeled “Confidential” or is identified at the time of such disclosure or access as being confidential;
{4} any knowledge or information described above which the Company obtains from a third party and which the Company treats as proprietary or confidential information; and
{5} anything (whether tangible or intangible) that is a derivative of the Confidential Information or that is created or compiled by the Executive and is, in whole or in part, based upon or contains any portion of the Confidential Information.
(collectively, the “Confidential Information”);
| (b) | the disclosure of any Confidential Information to any competitor, customer, client or supplier of the Company, any unauthorized personnel of the Company, or any third party would be highly detrimental to the best interests of the Company; and |
| (c) | the right to maintain the confidentiality of Confidential Information, and the right to preserve the Company’s goodwill, constitute proprietary rights which the Company is entitled to protect. |
(2) The Executive will, while employed with the Company and at all times thereafter:
| (a) | hold all Confidential Information that the Executive acquires in trust for the sole benefit of the Company and in strictest confidence; |
| (b) | protect all Confidential Information from disclosure and will not take any action that could reasonably be expected to result in any Confidential Information losing its character as Confidential Information, and will take all reasonable lawful action necessary to prevent any Confidential Information from losing its status as Confidential Information; and |
| (c) | neither, except as required in the course of performing duties and responsibilities under this Agreement, directly or indirectly use, publish, disseminate or otherwise disclose any Confidential Information to any unauthorized personnel of the Company or to any third party, nor use Confidential Information for any purpose other than the purposes of the Company, without the prior written consent of the Company, which consent may be withheld in the Company’s sole and absolute discretion. |
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(3) Notwithstanding the foregoing, Confidential Information shall not include any information which:
| (a) | is or becomes public knowledge through no fault of the Executive; or |
| (b) | is independently developed by the Executive outside the scope of his employment duties to the Corporation; or |
| (c) | is disclosed by the Corporation to another person or entity without any restriction on its use or disclosure; or |
| (d) | is or becomes lawfully available to the Executive on an unrestricted basis from a source other than the Corporation. |
(4) The restrictions on the Executive’s use or disclosure of all Confidential Information, as set forth in this Article 8, shall continue following the expiration or termination of the Executive’s employment with the Company regardless of the reasons for or manner of such termination.
(5) Notwithstanding Section 8.1(2) herein, the Executive may, if and solely to the extent required by lawful subpoena or other lawful process, disclose Confidential Information but, to the extent possible, shall first notify the Company of each such requirement so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement. The Executive will co- operate fully with the Company at the expense of the Company in seeking any such protective order.
ARTICLE 9- NON-COMPETITION AND NON-SOLICITATION
Section 9.1 Non-Competition and Payments for Enforcement by the Company during Restricted Period
(1) The Executive acknowledges that the Executive’s Services under this Agreement are of such a nature which give the Executive value to the Company; the loss of which cannot adequately be compensated in damages or by an action at law. In addition to, and not in limitation of any other restrictive covenant which may be binding on the Executive, the Executive shall not anywhere in Canada, for a period equal to the length of time determined by severance in lieu of notice, after the termination of this Agreement (the “Restricted Period” herein) for any reason in any manner whatsoever:
| (a) | carry on, engage in, or be concerned with or interested in; or |
| (b) | permit the Executive’s name or any part thereof to in any manner whatsoever to be used or connected with any business that is, or any interest in any business that is, or involves to any material degree, a business competitive to the Business of the Company. |
| (c) | For the purposes of this Agreement, the “Business of the Company” means: |
A high-end materials technology developer for the energy storage market.
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(2) The Executive agrees that:
| (a) | all restrictions contained in Section 9.1 herein are reasonable and valid in the circumstances and all defences to the strict enforcement thereof by the Company are hereby waived by the Executive; |
| (b) | the remedy available to the Company at law for any breach by him of Section 9.1 herein will be inadequate and that the Company, on any application to a Court, shall be entitled to temporary and permanent injunctive relief against the Executive without the necessity of proving actual damage to the Company; and |
| (c) | if the foregoing covenant is found to be unreasonable to any extent by a court of competent jurisdiction adjudicating upon the validity of the covenant, whether as to the scope of the restriction, the area of the restriction or the duration of the restriction, then such restriction shall be reduced to that which is in fact declared reasonable by such court, or a subsequent court of competent jurisdiction, requested to make such a declaration. |
Section 9.2 Non-Solicitation
The Executive hereby agrees that the Executive will not, during the period commencing on the Effective Date hereof and ending one year following the termination or expiration of this Agreement for any reason, be a party to or abet any solicitation of employees, customers, clients, referral services, consultants or suppliers of the Company or any of its subsidiaries, to transfer business from the Company or any of its subsidiaries to any other person, or seek in any way to persuade or entice any employee of the Company or any of its subsidiaries to leave that employment or to be a party to or abet any such action.
ARTICLE 10- OWNERSHIP OF INTELLECTUAL PROPERTY
Section 10.1 Definitions
In this Agreement, “Inventions” means, collectively, all:
| (a) | discoveries, inventions, ideas, suggestions, reports, documents, designs, technology, methodologies, compilations, concepts, procedures, processes, products, protocols, treatments, methods, tests, improvements, work product and computer programs (including all source code, object code, compilers, libraries and developer tools, and any manuals, descriptions, data files, resource files and other such materials relating thereto) (collectively the “Materials”), and |
| (b) | each and every part of the foregoing, that are conceived, developed, reduced to practice or otherwise made by the Executive either alone or with others or, in any way, relate to the present or proposed programs, services, products or business of the Company, or to tasks assigned to the Executive in connection with the Executive’s duties or in connection with any research or development carried on or planned by the Company, where such Inventions are conceived, developed, reduced to practice or otherwise made during the Executive’s employment or during regular working hours and whether or not the Executive is specifically instructed to conceive, develop, reduce to practice or otherwise make same. |
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Section 10.2 Exclusive Property
The Executive agrees that all Inventions, and any and all services and products which embody, emulate or employ any such Invention, shall be the sole property of the Company and all copyrights, patents, patent rights, trademarks, service marks, reproduction rights and all other proprietary title, rights and interest in and to each such Invention, whether or not registrable (collectively, the “Intellectual Property Rights”), shall belong exclusively to the Company.
Section 10.3 Work for Hire
For purposes of all applicable copyright laws to the extent, if any, that such laws are applicable to any such Invention or any such service or product, it shall be considered a work made for hire and the Company shall be considered the author thereof, including without limitation under the pertinent laws and regulations of the United States, including but not limited to all provisions of Title 17 of the United States Code, as amended from time to time.
Section 10.4 Disclosure
The Executive will promptly disclose to the Company, or any persons designated by it, all Inventions and all such services or products.
Section 10.5 Assignment
The Executive hereby assigns and further agrees to, from time to time as such Inventions arise, assign to the Company or its nominee (or their respective successors or assigns) all of the Executive’s right, title and interest in and to the Inventions and the Intellectual Property Rights without further payment by the Company.
Section 10.6 Moral Rights
The Executive hereby waives and further agrees to, from time to time as such Inventions arise, waive for the benefit of the Company and its successors or assigns all the Executive’s moral rights in respect of the Inventions.
Section 10.7 Further Assistance
The Executive agrees to assist the Company in every proper way (but at the Company’s expense) to obtain and, from time to time, at the Company’s expense, enforce the Intellectual Property Rights and to the Inventions in any and all countries, and to that end will execute all documents for use in applying for, obtaining and enforcing the Intellectual Property Rights in and to such Inventions as the Company may desire, together with any assignments of such Inventions to the Company or persons designated by it. The Executive’s obligation to assist the Company in obtaining and enforcing such Intellectual Property Rights in any and all countries shall continue beyond the termination of this Agreement for a period of two (2) years.
Section 10.8 Representations and Warranties
The Executive hereby represents and warrants that as of the Effective Date of this Agreement and during the term of this Agreement, the Executive is subject to no contractual or other restriction or obligation that will in any manner limit the Executive’s obligations under this Agreement or activities on behalf of the Company. The Executive hereby represents and warrants to the Company that the Executive has no continuing obligations to any person (a) with respect to any Invention or (b) that require the Executive not to disclose the same.
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ARTICLE 11- ARBITRATION
Section 11.1 Matters for Arbitration
Except for matters of indemnity or in the case of urgency to prevent material harm to a substantive right or asset, the Parties agree that all questions or matters in dispute with respect to this Agreement shall be submitted to arbitration pursuant to the terms hereof. This provision shall not prejudice a Party from seeking a Court order or assistance to garnish or secure sums or to seek summary remedy for such matters as counsel may consider amenable to summary proceedings.
Section 11.2 Notice
It shall be a condition precedent to the right of any Party to submit any matter to arbitration pursuant to the provisions hereof that any Party intending to refer any matter to arbitration shall have given not less than five business days’ prior written notice of its intention to do so to the other Party together with particulars of the matter in dispute. On the expiration of such five business days the Party who gave such notice may proceed to refer the dispute to arbitration as provided for herein. Except for matters of indemnity or in the case of urgency to prevent material harm to a substantive right or asset, the Parties agree that all questions or matters in dispute with respect to this Agreement shall be submitted to arbitration pursuant to the terms hereof. This provision shall not prejudice a Party from seeking a Court order or assistance to garnish or secure sums or to seek summary remedy for such matters as counsel may consider amenable to summary proceedings.
Section 11.3 Appointments
The Party desiring arbitration shall propose three arbitrators to the other Party. The other Party may choose one of these arbitrators to act as single arbitrator or propose alternatives. In case the parties cannot agree on a single arbitrator within 5 business days, the Party desiring arbitration shall appoint one arbitrator, and shall notify the other Party of such appointment, and the other Party shall, within five business days after receiving such notice, appoint an arbitrator, and the two arbitrators so named, before proceeding to act, shall, within five business days of the appointment of the last appointed arbitrator, unanimously agree on the appointment of a third arbitrator, to act with them and be chairperson of the arbitration herein provided for. If the other Party shall fail to appoint an arbitrator within five business days after receiving notice of the appointment of the first arbitrator, and if the two arbitrators appointed by the Parties shall be unable to agree on the appointment of the chairperson, the chairperson shall be appointed in accordance with the provisions of the British Columbia Arbitration Act, SBC 2020, c2 (the “Arbitration Act”). Except as specifically otherwise provided in this section, the arbitration herein provided for shall be conducted in accordance with such Arbitration Act. The chairperson, or in the case where only one arbitrator is appointed, the single arbitrator, shall fix a time and place for the purpose of hearing the evidence and representations of the Parties, and the chairperson shall preside over the arbitration and determine all questions of procedure not provided for by the Arbitration Act or this section. After hearing any evidence and representations that the Parties may submit, the single arbitrator, or the arbitrators, as the case may be, shall make an award and reduce the same to writing, and deliver one copy thereof to each of the Parties. The expense of the arbitration shall be paid as specified in the award.
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Section 11.4 Award
The Parties agree that the award of a majority of the arbitrators, or in the case of a single arbitrator, of such arbitrator, shall be final and binding upon each of them, except on questions of law, in which case such questions shall be appealable to the British Columbia Court of Appeal.
ARTICLE 12- OTHER PROVISIONS
Section 12.1 Waivers and Amendments
This Agreement may be amended, modified, superseded, cancelled, renewed or extended, only by a written agreement between the Parties. Failure or delay by either Party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition.
Section 12.2 Entire Agreement
This Agreement constitutes the entire understanding and agreement of the parties hereto concerning the subject matter hereof and supersedes all prior or contemporaneous written or oral understandings or agreements of the parties, and there are no other agreements or understandings between the parties.
Section 12.3 No Representation or Claims
The Executive agrees that the Executive has not been induced to enter into this Agreement by reason of any statement, representation, understanding or promise not expressly set out in this Agreement. The Executive has no claim against the Company arising from any Services provided by the Executive to the Company in any capacity prior to the effective date of this Agreement.
Section 12.4 Governing Law
The situs of this Agreement is Vancouver, British Columbia, Canada, and for all purposes this Agreement will be governed exclusively by and construed and enforced in accordance with the laws prevailing in the Province of British Columbia, Canada, and the federal laws of Canada applicable thereto. Notwithstanding the foregoing, any matters appurtenant hereto which are covered by United States securities and/or intellectual property laws shall be governed by and construed and enforced in accordance therewith.
Section 12.5 Notices
Any notice or other communication or writing required or permitted to be given under this Agreement or for the purposes of this Agreement will be in writing and will be sufficiently given if delivered personally, or if feasible transmitted by facsimile transmission (with original to follow by mail) or other form of recorded communication, tested prior to transmission, to:
| (a) | if to the Company: |
NANO INNOVATIONS INC.
c/o Suite 307
0000 Xxxx Xxxxxx Xxxxxx
Vancouver, BC V6G 2S3
Attention: Xxxx Xxxxxxxxx
E-mail: xxxx@xxxxxxxxxxxxx.xxx or xxxx@xxxxxxxxxx.xxx
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NANO INNOVATIONS INC.
| (b) | if to the Executive: |
R. XXXXXXX XXXXXX
000 – 00 Xxxxxx X.X.
Calgary, AB, T2M 1S3
E-mail: xxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
or to such other address as the Party to whom such notice is to be given will have last notified the Party giving the same in the manner provided in this section. Any notice so delivered will be deemed to have been given and received on the day it is so delivered at such address; provided that such day is not a Business Day (as herein defined) then the notice will be deemed to have been given and received on the Business Day next following the day it is so delivered. Any notice so transmitted by facsimile transmission, email or other form of recorded communication will be deemed to have been given and received on the day of its confirmed transmission (as confirmed by the transmitting medium), provided that if such day is not a Business Day then the notice will be deemed to have been given and received on the Business Day next following such day. “Business Day” means any day that is not a Saturday, Sunday or civic or statutory holiday in the Province of British Columbia, Canada.
Section 12.6 Assignment
The Executive may not assign this Agreement or any right or obligation under it.
Section 12.7 Survival
The obligations of Article 7, Article 8, Article 9, and Article 10 shall survive the termination of this Agreement.
Section 12.8 Severability
If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.
Section 12.9 Independent Legal Advice
The Executive acknowledges that the Company has recommended that the Executive obtain independent legal advice with respect to this Agreement, and that the Executive has had a reasonable opportunity to do so prior to executing this Agreement.
Section 12.10 Enurement
This Agreement will enure to the benefit of and will be binding upon the Parties and their respective heirs, executors, administrators and assigns.
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NANO INNOVATIONS INC.
Section 12.11 Further Assurances
The Parties will from time to time after the execution of this Agreement make, do, execute or cause or permit to be made, done or executed, all such further and other acts, deeds, things, devices and assurances in law whatsoever as may be required to give full force and effect to this Agreement.
Section 12.12 Personal Information
The Executive acknowledges that the Company is obligated to comply with the British Columbia Personal Information Protection Act and with any other applicable legislation governing the collection, use, storage and disclosure of personal information. The Executive agrees to comply with all Company personal information protection policies and with other policies, controls and practices as they may exist, from time to time, in seeking to ensure that the Executive and the Company engage only in lawful collection, storage, use and disclosure of personal information. The Executive acknowledges that the Executive may be required by the Company to complete a TSXV form 2A (personal information) and have it notarized and delivered to the TSXV (or such other similar form as may be required by an applicable exchange).
Section 12.13 Captions
The headings, captions, article, section and subsection numbers appearing in this Agreement are inserted for convenience of reference only and shall in no way define, limit, construe or describe the scope or intent of this Agreement nor in any way affect this Agreement.
Section 12.14 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
<SIGNATURE PAGE FOLLOWS>
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NANO INNOVATIONS INC.
IN WITNESS WHEREOF the Parties have executed this agreement as of the date inserted on page one with intended effect from the Effective Date.
| Name: | ArniJohannson | |
| Title: |
| Signed, Sealed and Delivered by R. Xxxxxxx Xxxxxx | ) | |
| ) | ||
| (Signature) | ) | |
| ) | ||
| ) | /s/ R. XXXXXXX XXXXXX | |
| Name (please print) | ) | R. XXXXXXX XXXXXX |
| ) | ||
| 000 - 00 Xxxxxx XX | ) | |
| Address | ) | |
| ) | ||
| Calgary, AB | ) | |
| City, Pr nee I | ) | |
| ) | ||
| Retired | ) | |
| Occupation | ) |
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NANO INNOVATIONS INC.
Schedule “A” – CFO Services - DRAFT
The Executive’s title shall be Chief Financial Officer.
As a senior officer and executive of Nano Innovations Inc., the Executive shall report directly to the Chief Executive Officer and/or the Board.
The Executive is accountable for the administrative, financial, and risk management operations of the company, to include the development of a financial and operational strategy, metrics tied to that strategy, and the ongoing development and monitoring of control systems designed to preserve company assets and report accurate financial results. Principal accountabilities are:
Planning
| 1. | Assist in formulating the company’s future direction and supporting tactical initiatives |
| 2. | Monitor and direct the implementation of strategic business plans |
| 3. | Develop financial and tax strategies |
| 4. | Manage the capital request and budgeting processes |
| 5. | Develop performance measures that support the company’s strategic direction |
Operations
| 1. | Participate in key decisions as a member of the executive management team |
| 2. | Maintain in-depth relations with all members of the management team |
| 3. | Manage the accounting, investor relations, legal, tax, treasury and management information systems (MIS) functions |
| 4. | Oversee the financial operations of subsidiary companies and foreign operations |
| 5. | Manage any third parties to which functions have been outsourced |
| 6. | Oversee the company’s transaction processing systems |
| 7. | Implement operational best practices |
| 8. | Oversee employee benefit plans, with particular emphasis on maximizing a cost-effective benefits package |
| 9. | Supervise acquisition due diligence and negotiate acquisitions |
Financial Information
| 1. | Oversee the issuance of financial information |
| 2. | Personally review and approve all filings with the applicable securities regulators |
| 3. | Report financial results to the board of directors |
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NANO INNOVATIONS INC.
Risk Management
| 1. | Understand and mitigate key elements of the company’s risk profile |
| 2. | Monitor all open legal issues involving the company, and legal issues affecting the industry | |
| 3. | Construct and monitor reliable control systems |
| 4. | Maintain appropriate insurance coverage |
| 5. | Ensure that the company complies with all legal and regulatory requirements |
| 6. | Ensure that record keeping meets the requirements of auditors and government agencies |
| 7. | Report risk issues to the audit committee of the board of directors |
| 8. | Maintain relations with external auditors and investigate their findings and recommendations |
Funding
| 1. | Monitor cash balances and cash forecasts |
| 2. | Arrange for debt and equity financing in concert with the CEO, Investment Bankers, Advisors and the Board of Directors |
| 3. | Invest funds and oversee treasury functions |
Third Parties
| 1. | Participate in conference calls with the investment community |
| 2. | Maintain banking relationships |
| 3. | Represent the company with investment bankers and investors |
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NANO INNOVATIONS INC.
Schedule “B” – Current Director, Advisor and Officer Appointments
| A. | Granite Creek Capital Inc. (Private) |
| Title: | President and Director (Officer) |
| Business: | Private holding and consulting firm owned by R. Xxxxxxx Xxxxxx (50%) and Xxxxx Xxx Xxxxxx (50%). |
| Comments: | Will become inactive during the CFO’s tenure. |
| B. | Alberta Society of Artists (Non-profit) |
| Title: | Treasurer and Director (Officer) |
| Business: | Non-profit association of professional artists with a small gallery in Calgary and a contract to deliver art content to communities across Alberta from the Alberta Foundation for the Arts. |
| Comments: | Acting as a volunteer on a two-year term. |
| X. | Xxxxx Industrial Ltd. (Private) |
| Title: | Director/Advisor (Non-Officer) |
| Business: | Manufacture of portable/modular commercial, industrial and residential units. Currently under contract with Alberta Infrastructure for portable schools. |
| Comments: | Completing a change of control share purchase by end of April. The buyers have asked me to continue to provide advice by either acting as a Director or Advisor, however it will be minimal engagement. |
| D. | Span West Building Corp. (Private) |
| Title: | Contract CFO (Non-Officer) |
| Business: | Multi-family residential developer located in Saskatoon. |
| Comments: | I will need to transition this client of The CFO Centre to a new CFO. From the date of notice my obligation will be a maximum of four days. I would like to notify them the week of April 19, 2021 and conclude the transition by May 28, 2021. |
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