EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made and entered into as of
July 15, 2000, by and between Nanopierce Technologies, Inc. (the "Corporation"),
a Nevada corporation, and Xxxxxx X. Xxxxxxxx, an individual with her principal
business address at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
(the "Executive");
1. EMPLOYMENT AND TERM.
(a) Employment. The Company hereby employs Executive and
Executive hereby accepts such employment, in the capacity of Chief
Financial Officer of the Corporation to act in accordance with the terms
and conditions hereinafter set forth.
(b) Term. Executive's employment hereunder shall be for an
initial term of two years (the "Initial Term") commencing on July 15, 2000
(the "Effective Date") and terminating on July 15, 2002, subject to the
extension or earlier expiration of the Initial Term as provided in this
Agreement. Within forty-five (45) days of July 15, 2002 the Corporation's
Board of Directors (the "Board") shall review Executive's performance
under this Agreement and, in its sole discretion, renew the Agreement for
a term of one year (a "Renewal Term") commencing on the first day
immediately following the Expiration Date (as defined below). The board
shall provide Executive written notice of its decision to renew or not
renew this Agreement at least 30 days prior to the date of this Agreement
expires under the Initial Term of any Renewal Term (the "Expiration Date").
If the Board fails to provide Executive with such written notice, within
the time period set forth above, the Agreement shall terminate on the
Expiration Date of the Initial Term or Renewal Term, as the case may be.
Whenever the word "Term" is used in this Agreement is shall refer to either
the Initial Term or the Renewal Term, as the case may be.
(c) Location of Employment. Effective upon the date of this
Agreement, and through the Initial Term the Corporation shall maintain an
office for Executive at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000, or such other location upon which the Corporation and
Executive shall mutually agree at which location Executive shall carry out
her duties.
2. DUTIES.
(a) During the period of employment as provided in Paragraph 1(b)
hereof, Executive shall serve as Chief Financial Officer of the
Corporation, and shall have all powers and duties consistent with such
position subject to the direction of the Board. Such duties shall include,
without limitation, the following:
(i) Chief Financial Officer. The primary duties and
responsibilities of the Chief Financial Officer consist of the
following: to establish overall financial practices and procedures
necessary to maintaining effective accounting control over all aspects
of the Corporation and its subsidiaries. In addition, the Chief
Financial Officer will have primary responsibility for the appropriate
management and investment of the Corporation's assets, particularly
cash, to maximize the highest possible rate of return. Additional
responsibilities will include dealing primarily with the Corporation's
independent auditors, financial institutions, particularly commercial
banks and financial analysts, the preparation, based upon information
obtained from appropriate personnel, of an annual budget, both
consolidated and unconsolidated and additional interim reports as will
permit him to maintain effective control and supervision on a
continuing basis of the Corporation's financial results or operations
and financial status, and such further responsibilities as are
delegated to Executive by the President and Chief Executive Officer
of the Corporation.
(b) Executive shall devote substantially her entire professional
time, attention and energy exclusively to the business and affairs of the
Corporation and its subsidiaries, as its business and affairs now exist and
as they hereafter may be changed, and shall not during the term of her
employment hereunder be engaged in any other business activity whether or
not such business activity is pursued for gain or profit. The foregoing
shall not be construed as preventing Executive from (a) managing her
personal investments or investing her assets in such form or manner as will
not require any significant services on her part in the operation of the
affairs of the businesses or entities in which such investments are made,
provided Executive shall not invest in any business competitive with the
Corporation and its affiliates, except those companies whose securities are
listed on a national securities exchange or quoted daily in the Over-the-
Counter Market listing of the The Wall Street Journal; or (B) preclude
Executive from continuing to serve on the board of directors of any
business corporation or any charitable organization on which she now serves
and which has been disclosed to the Corporation in writing or, subject to
the prior approval of the Board, from accepting employment to additional
board of directors, provided that such activities do not materially
interfere with the performance of Executive's duties hereunder.
(c) Executive further agrees that during the term of her
employment under this Agreement she will engage in no business or other
activities, directly or indirectly, which are or may be competitive with or
which might place him in a competing position to that of the Corporation
and its affiliates without obtaining the prior written consent of the
Board, including, without limitation, the solicitation or acceptance of
consulting work from clients of the Corporation and its affiliates for whom
she has performed services by virtue of this Agreement or who she has met
in connection with her employment under this Agreement.
3. COMPENSATION.
(a) Base Salary. For services performed by Executive for the
Corporation pursuant to this Agreement during the year January 15, 2000
until the completion of not less than $10,000,000 in financing (the
"financing"), the Corporation shall pay Executive a base salary at the rate
of $54,600.00 per year (the "Base Salary"), upon completion of the
Financing, the Corporation shall, with the first payroll period commencing
after completion of the financing, pay Executive a base salary at a rate of
$60,000.00 per year, payable in accordance with the Corporation's normal
payroll practices but in no event less than once a month. Upon graduation
from the University of Colorado at Denver, Graduate School of Business and
the receipt of Executive's MBA, in December 2001, the Corporation shall pay
Executive a base salary at the rate of $75,000 per year. Any compensation
paid to Executive under any additional compensation or incentive plan of
the Corporation, or that may be otherwise authorized from time to time by
the Board, shall be in addition to the base salary to which Executive shall
be entitled under this Agreement.
(b) Tax Withholding. The Corporation shall provide for the
withholding of any taxes required to be withheld by federal, state and
local law with respect to any payment in cash, shares of capital stock or
other property made by or on behalf of the corporation to or for the
benefit of Executive under this Agreement or otherwise. The Corporation
may, at its option: (I) withhold such taxes from any cash payments owing to
the Corporation to Executive, including any payments owing under any other
provision of this Agreement, (ii) require Executive to pay to the
Corporation in cash such amount as may be required to satisfy such
withholding obligations or (iii) make other satisfactory arrangements with
Executive to satisfy such withholding obligations.
4. BENEFITS. In addition to the base Salary, Executive shall also be
entitled to the following:
(a) Participation in Benefit Plans. Executive shall be entitled
to participate in the various retirement, welfare, fringe benefit, group
long-term disability plans and other executive perquisite plans, programs
and arrangements of the Corporation available for senior executive level
officers of the Corporation. Executive and her dependents, at Executive's
request shall be enrolled in the Corporation's health, life, disability and
other insurance plans and programs immediately upon her commencement of
employment hereunder.
(b) Vacation and Sick Leave. Executive shall be entitled to two
weeks of vacation during each calendar year during which this Agreement is
in effect, or such greater period as the Board may approve, and to paid
holidays given by the Corporation to its domestic employees generally,
without reduction in salary or other benefits. Executive shall also be
entitled to sick leave according to the sick leave policy, which the
Corporation may adopt from time to time.
(c) Basic Stock Option. Executive shall be eligible for grants
of stock options in accordance with the Corporation's 1998 Stock Option
Plan or such other stock option plan developed by the Board.
(d) Expenses. The Corporation shall reimburse Executive, upon
proper accounting, for reasonable business expenses and disbursements
incurred by him in the course of the performance of her duties under this
Agreement and in accordance with the Corporation's policies as in effect
from time to time.
(e) Proration of Benefits. Any payments or benefits hereunder, in
any year during which Executive is employed by the Corporation for less
than the entire year shall, unless otherwise provided in the applicable
plan or arrangement, be prorated in accordance with the number of days in
such year during which Executive is employed by the Corporation.
5. INDEMNIFICATION AND INSURANCE. Executive shall be entitled to the
maximum indemnification provided by the Bylaws and the Articles of
Incorporation of the Corporation for officers and employees of the
Corporation. Executive's rights under this Paragraph shall continue
without time limit so long as she may be subject to any such liability,
whether or not the Term of employment has ended. The Corporation shall
obtain and maintain, in effect, officers and directors liability insurance
in an amount not less than $1,000,000 without time limit so long as
Executive may be subject to any such liability, whether or not the Term of
employment has ended.
6. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. Executive hereby
represents and warrants to the Corporation that (a) Executive's execution
and delivery of this Agreement and her performance of her duties and
obligations hereunder will not conflict with, or cause a default under, or
give any party a right to damages under, or to terminate, any other
agreement to which Executive is a party or by which she is bound, and (b)
there are no agreements or understandings that would make unlawful
Executive's execution or delivery of this Agreement or her employment
hereunder.
7. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The Corporation
hereby represents and warrants to Executive as follows:
(a) The Corporation is duly organized and established as a
corporation under the laws of the State of Nevada and has all requisite
power and authority to enter into this agreement and to perform its
obligations hereunder. The consummation of the transactions contemplated
by this Agreement will neither violate nor be in conflict with any
agreement or instrument to which the Corporation is a party or by which it
is bound.
(b) The execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been duly and validly authorized by
all requisite corporate action on the part of the Corporation and are
valid, legal and binding obligations of the Corporation, enforceable in
accordance with their terms except as may be limited by the laws of general
application relating to bankruptcy, insolvency, moratorium or other similar
laws relating to or affecting the enforcement or creditors' rights, and
rules of law governing specific performance, injunctive relief or other
equitable remedies.
8. TERMINATION.
(a) Cause. The Corporation may terminate Executive's employment
at any time for Cause (as defined herein), by reason of Disability (as
defined herein), or without Cause; provided, however, that for any reason
constituting Cause, Executive is given (x) reasonable notice ("Notice of
Termination for Cause") setting forth the reasons for the Corporation's
intention to terminate for Cause and the effective date of such termination
(which effective date may be the date of such notice), (y) an opportunity
for Executive, together with her counsel, to be heard before the Board
within two weeks of such notice and (z) within five (5) business days after
Executive's hearing before the Board, written notice to Executive from the
Board of its good faith determination that the reasons specified in the
Notice of Termination for Cause constitute Cause under this Paragraph 8(a),
and that Executive's employment is terminated effective as of the date
specified in the Notice of Termination for Cause. Executive's rights to
receive her salary and benefits hereunder shall not be affected during the
period between the receipt of the Notice of Termination for Cause and the
determination, if any, by the Board that the reasons specified in such
notice constituted Cause. For purposes of this Agreement, "Cause" means:
(i) Executive commits a breach of any material term of this
Agreement, or any material obligation of the Corporation, and such
breach constitutes gross negligence or willful misconduct and, if such
breach is capable of being cured, Executive Fails to cure such breach
within 30 days of notice of such breach;
(ii) Executive is convicted of, or pleads guilty or nolo
contendere to a felony;
(iii) Executive's commission of any act that would cause any
license of the Corporation or its subsidiaries or affiliates to be
revoked, suspended, or not be renewed after proper application;
(iv) gross negligence in the performance of Executive's duties
and responsibilities;
(v) refusal of Executive to follow proper and achievable written
direction of the Board, provided that this shall not be Cause if
Executive in good faith believes the direction to be illegal,
unethical or immoral and so notifies the Board;
(vi) material fraud or dishonesty with regard to the Corporation
(other than good faith expense account disputes); or
(vii) continuous refusal to attempt to perform Executive's
responsibilities and duties after written notice.
(b) Good Reason. Executive may terminate her employment at any time
for any of the following reasons (each of which is referred to herein as
"Good Reason") by giving the Corporation notice of the effective date of
such termination (which effective date may be the date of such notice):
(i) the Corporation commits a breach of any material term of
this Agreement and, if such breach is capable of being cured, the
Corporation fails to cure such breach within 30 days of receipt of
notice of such breach; or
(ii) a material change of position, duties or the assignments of
duties materially inconsistent with Executive's position as Executive
Officer of the Corporation.
(c) Change in Control. Executive may, at her option, terminate her
employment upon a "Change in Control." For purposes of this Agreement,
"Change of Control" shall mean:
(i) the obtaining by any party of fifty percent (50%) of more of
the voting shares of the Corporation pursuant to a "tender offer" for
such shares as provided under Rule 14d-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any subsequent comparable federal rule or regulation governing tender
offers; or
(ii) individuals who were members of the Board immediately prior
to any particular meeting of the Corporation's shareholders which
involves a contest for the election of directors fail to constitute a
majority of the members of the Board following such election; or
(iii) the Corporation's executing an agreement concerning the
sale of substantially all of its assets to a purchaser which is not a
subsidiary; or
(iv) the Corporation's adoption of a plan of dissolution or
liquidation;
(v) the Corporation's executing an agreement concerning a merger
of consolidation involving the Corporation in which the Corporation is
not the surviving corporation or if, immediately following such merger
or consolidation, less than fifty percent (50%) of the surviving
corporation's outstanding voting stock is held by persons who are
stockholders of the Corporation immediately prior to such merger of
consolidation.
(d) Executive's Rights to Terminate. Executive may, at her option,
terminate her employment hereunder for any reason upon 60 days' prior
written notice to the Corporation.
(e) Death. This Agreement shall terminate automatically upon
Executive's death.
(f) Disability. The term "Disability" as used in connection with
termination of the employment of Executive shall mean the inability of
Executive to substantially perform her material duties hereunder due to
physical or mental disablement which continues for a period of six (6)
consecutive months, during the term of employment (during which six (6)
month period Executive's salary and benefits shall continue) as determined
by an independent qualified physician mutually acceptable to the
Corporation and Executive (or her personal representative).
Notwithstanding the above, in the event of Disability, Executive shall be
entitled to participate in and be covered by the Corporation's group health
plan until Executive is able to obtain health insurance on substantially
the same terms and conditions as provided in the Corporation's group health
plan; provided, however, that if the Corporation's group health plan does
not allow Executive and her dependents to continue coverage, then the
Corporation and Executive agree to negotiate a mutually satisfactory
alternative to provide Executive with the benefits intended by this
Paragraph 8(f).
(g) Without Cause. The Corporation may, at its option, terminate
Executive's employment without Cause at any time upon written notice to
Executive.
(h) Date of Termination. For purposes of this Agreement, the term
"Date of Termination" shall mean the date that any party gives notice,
through action or otherwise, that it intends to terminate this Agreement
pursuant to the terms hereof or the date, if any, specified by the
terminating party in such notice as the effective date of termination;
provided, however, with respect to termination for Cause, the Date of
Termination shall be the date of receipt by Executive of written notice
form the Board as required by Paragraph 8(a) hereof. In addition, where
Executive gives notice to terminate this Agreement and the effective date
of termination is other than the date the Corporation receives notice of
termination, the Corporation reserves the right to accelerate the
Termination Date to the date Executive notified the Corporation of her
intent to terminate this Agreement.
9. OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(a) Without cause or for Good Reason. If the Corporation shall
terminate Executive's employment without Cause or if Executive shall
terminate her employment for Good Reason, this Agreement shall terminate
without further obligation to Executive hereunder, other that the
obligation (i) to continue to pay Executive in accordance with the
Corporation's normal payroll payment procedures her Base Salary from the
Date of Termination at the rate in effect on the Date of Termination
through the next anniversary of the Effective Date; and (ii) to continue to
provide Executive with the benefits set forth in Paragraph 4(a) through the
next anniversary of the Effective Date.
(b) Voluntary. If Executive terminates her employment for other than
Good Reason (a "Voluntary Termination"), this Agreement shall terminate
without further obligation to Executive hereunder, other than the
obligation (i) to continue to pay Executive in accordance with the
Corporation's normal payroll payment procedures her Base Salary through
the Date of Termination at the rate in effect on the Date Termination; and
(ii) to continue to provide Executive with benefits of the type described
in Paragraph 4(a) through the day preceding the Date of Termination.
(c) Cause. If Executive's employment shall be terminated by the
Corporation for "Cause" the Corporation shall continue to pay Executive her
Base Salary through the Date of Termination at the rate in effect upon the
Date of Termination. Thereafter, the Corporation shall have no further
obligation to Executive.
(d) Death. If Executive's employment is terminated by reason of
Executive's death, the corporation shall pay to Executive's heirs or
estate, the Base Salary at the rate in effect on the day preceding death
through the next anniversary of the Effective Date, in one lump sum,
payable within sixty days of the date of death.
(e) Disability. If Executive's employment is terminated by reason of
Disability, the Corporation shall (i) continue in accordance with the
Corporation's normal payroll payment procedures to pay Executive her Base
Salary form the Date of Termination at the rate in effect on the Date of
Termination, through the next anniversary of the Effective Date; provided,
however, that if an event or condition is determined to be the cause of
Disability, by an independent qualified physician acceptable to Executive
and the Corporation, and such event or condition occurs at any time in the
last six months of the Term, then the Corporation shall continue to pay
Executive her Base Salary in accordance with the Corporation's normal
payroll procedures for a period of Six (6) months beyond the Term; and
(ii) continue to provide Executive with benefits of the type described in
Paragraph 4(a) through the next anniversary of the Effective Date;
provided, however, that if the Corporation's group health plan does not
allow Executive and her dependents to continue coverage, then the
Corporation and Executive agree to negotiate a mutually satisfactory
alternative to provide Executive with the benefits intended by this
Paragraph 9(e).
(f) Change of Control. If Executive terminates her employment within
90 days following a Change of Control, the Corporation shall (i) continue
in accordance with the Corporation's normal payroll payment procedures to
pay Executive her Base Salary at the rate in effect on the Date of
Termination through the next anniversary of the Effective Date; and (ii)
continue to provide Executive with benefits of the type described in
Paragraph 4(a) through the day preceding the Date of Termination.
10. NON-COMPETITION. Executive acknowledges and recognizes the highly
competitive nature of the Corporation and its affiliates and Executive
accordingly covenants and agrees, that at all times for a period of twelve
(12) consecutive months subsequent to the end of the Term or the Date of
Termination, whichever occurs earlier, as follows:
(a) Executive will not directly or indirectly own, manage, operate,
finance, join control or participate in the ownership, management,
organization , financing or control of, or be connected as an officer,
director, employee, partner, principal, agent, representative, consultant
or otherwise with any business or enterprise engaged in a business the same
as or substantially similar to the business of the Corporation and its
affiliates except as a holder of fewer that 5% of the outstanding shares or
other equity interests of a company whose shares or other equity interests
are registered under Section 12 of the Exchange Act.
(b) Executive will not directly or indirectly induce any employee of
the Corporation or any of its affiliates to engage in any activity in which
Executive is prohibited from engaging by subparagraph (a) above or to
terminate their employment with the corporation or any of its affiliates,
and will not directly or indirectly employ or offer employment to any
person who was employed by the Corporation or any of its affiliates unless
such person shall have been terminated without cause or ceased to be
employed by any such entity for a period of at least 12 months.
(c) Executive will not use or permit her name to be used in
connection with any business or enterprise engaged in the business the same
as or similar to Corporation or its affiliates or any other business
engaged in by Corporation or any of its affiliates.
(d) Executive will not use the name of the Corporation or any name
similar thereto, but nothing in this clause shall be deemed, by
implication, to authorize or permit use of such name after expiration of
such period.
(e) Executive will not make any statement or take any action intended
to impair the goodwill or the business reputation of the Corporation or any
of is affiliates, or to be otherwise detrimental to the interests of the
Corporation or any of its affiliates, including any action or statement
intended, directly or indirectly, to benefit a competitor of the
Corporation or any of its affiliates, except as may be required by
applicable law or by a local, state or federal regulatory agency.
(f) Executive will not (a) disclose any customer lists or any part
thereof to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever; (b) assist in obtaining any of the
Corporation's customers for any other similar business; (c) encourage any
customer to terminate, change or modify its relationship with the
Corporation; or (d) solicit or divert or attempt to solicit or divert
the Corporation's customers.
(g) The Corporation shall have the right, subject to applicable law,
to inform any other third party that the Corporation reasonably believes
to be, or to be contemplating participating with Executive or receiving
from Executive properties of the Corporation in violation of this Agreement
and of the rights of the Corporation hereunder, and that participation by
any such third party with Executive in activities in violation of this
Paragraph 10 may give rise to claims by the Corporation against such third
party;
(h) Executive and the Corporation agree that in light of the
specialized nature of the industry and the national-customer base of the
Corporation's business, that the restrictions set forth in this Paragraph
10 shall apply to Executive within the territory of the United States of
America. It is expressly understood and agreed that although Executive and
the Corporation consider the restriction contained in the Paragraph 10 to
be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against
Executive, the provisions of this Agreement shall not be rendered void but
shall be deemed amended to apply as to such maximum time and territory and
to such maximum intent as such court may judicially determine or indicate
to be enforceable. Alternatively, if any court of competent jurisdiction
finds that any restriction contained in this Agreement is unenforceable,
and such restriction cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other
restrictions contained herein; provided, however that the provisions of
this Paragraph 10 shall not apply if Executive is terminated without Cause
or Executive terminates for Good Reason.
(i) The failure of Executive to abide by the provisions of this
Paragraph 10 shall be deemed a material breach of this Agreement. The
primary purpose of the covenant not to compete is the Corporation's
legitimate interest in protecting its economic welfare and business
goodwill. The Corporation and the Executive further agree that this
covenant shall in no way be construed as a mere limitation on
competition nor shall it be construed as a restraint on Executive's
right to engage in a common calling.
11. PROPRIETARY INFORMATION. Executive agrees that at all times during
the Term of this Agreement and after Executive is no longer employed by
the Corporation, Executive shall not use for her personal benefit, or
disclose, communicate or divulge to, or use for the direct or indirect
benefit on any person, firm, association or company other than the
Corporation, any Proprietary Information. "Proprietary Information" means
information relating to the properties, prospects, products, services or
operations of the Corporation or any direct or indirect affiliate thereof
that is not generally known, is proprietary to the Corporation or such
affiliate and is made known to Executive or learned or acquired by
Executive while in the employ of the Corporation, including, by way of
illustration, but not limitation, information concerning trade secrets,
processes, structures, formulae, data and know-how, improvements,
inventions, product concepts, techniques, marketing plans, strategies,
forecasts, customer lists and information about the Corporation's employees
and/or consultants (including, without limitation, the compensation, job
responsibility and job performance of such employees and/or consultants).
However, Proprietary Information shall not include (i) at the time of
disclosure to Executive such information that was in the public domain or
later entered the public domain other than as result of a beach of an
obligation herein; or (ii) subsequent to disclosure to Executive, Executive
received such information form a third party under no obligation to
maintain such information in confidence, and the third party came into
possession of such information other than as a result of a breach of an
obligation herein. All materials or articles of information of any kind
furnished to Executive by the Corporation or developed by Executive in the
course of her employment thereunder are and shall remain the sole property
of the Corporation; and if the Corporation requests the return of such
information at any time during, upon or after the termination of
Executive's employment hereunder, Executive shall immediately deliver the
same to the Corporation.
12. OWNERSHIP OF PROPRIETARY INFORMATION. Executive agrees that all
Proprietary Information shall be the sole property of the Corporation and
its assigns, and the Corporation and its assigns shall be the sole owner
of all licenses and other rights in connection with such proprietary
Information. At all times during the Term of this Agreement and after
Executive is no longer employed by the Corporation, Executive will keep
the strictest confidence and trust all Proprietary Information and will not
use or disclose such Proprietary Information, or anything relating to such
information, without the prior written consent of the Corporation, except
as many be necessary in the ordinary course of performing her duties under
this Agreement.
13. DOCUMENTS AND OTHER PROPERTY. All materials or articles of
information of any kind furnished to Executive in the course of her
employment hereunder are and shall remain the sole property of the
Corporation; and if the Corporation requests the return of such information
at any time during, upon or after the termination of Executive's employment
hereunder, Executive shall immediately deliver the same to the Corporation.
Executive will not, without the prior written consent of the Corporation,
retain any documents, data or property, or any reproduction thereof of any
description, belonging to the Corporation or pertaining to any Proprietary
Information.
14. THIRD-PARTY INFORMATION. The Corporation from time to time receives
from third parties confidential or proprietary information subject to a
duty on the Corporation's part to maintain the confidentiality of such
information and to use it only for certain limited purposes ("Third-party
Information"). At all times, until after the later of (a) the Expiration
Date, (b) the fifth anniversary of the Date of Termination or (c) the
period of time the Corporation must maintain the Third-Party Information as
confidential, Executive will hold Third-Party Information in the strictest
confidence and will not disclose or use Third-Party Information except as
permitted by the agreement between the Corporation and such third party.
5. INTELLECTUAL PROPERTY. Any and all improvements, inventions, designs,
ideas, works of authorship, copyrightable works, discoveries, trademarks,
copyrights, trade secrets, formulae, processes, techniques, know-how, and
data, whether or not patentable (collectively "Products"), made or
conceived or reduced to practice or learned by Executive, either along or
jointly with others, during the period of Executive's employment (whether
or not during normal working hours) that are related to or useful in the
actual or anticipated business of the Corporation, or result from tasks
assigned Executive by the Corporation or result from Executive's use of
premises or equipment owned, leased, or contracted for by the Corporation
(a) during the period of this Agreement, or (b) within a period of one year
after the Date of Termination, which may be directly or indirectly useful
in, or relate to, the business of the Corporation, shall be promptly and
fully disclosed by Executive to the Board and, if such intellectual
property was made, developed or created pursuant to Executive's employment
hereunder, such intellectual property shall be the Corporation's exclusive
property as against Executive, and Executive shall promptly deliver to an
appropriate representative of the Corporation as designated by the Board
all papers, drawings, models, data and other material relating to any
invention made, developed or created by him as aforesaid. Executive shall,
at the request of the Corporation and without any payment therefor, execute
any documents necessary or advisable in the opinion of the Corporation's
counsel or direct issuance of patents or copyrights to the Corporation with
respect to such Products as are to be the Corporation's exclusive property
as against Executive or to vest in the Corporation title to such Products
as against executive. The expense of securing any such patent or copyright
shall be borne by the Corporation. Executive shall be compensated, in
accordance with the Corporation's "Creative Awards" standard policy, for
all Products created or developed by the Executive either prior to her
employment (if delivered to the Corporation) or during the term of her
Employment.
16. EQUITABLE RELIEF. Executive acknowledges that, in view of the nature
of the business in which the Corporation is engaged, the restrictions
contained in paragraphs 10 through 15, inclusive (the "Restrictions") are
reasonable and necessary in order to protect the legitimate interest of the
Corporation, and that any violation thereof would result in irreparable
injuries to the Corporation, and Executive therefor further acknowledges
that, if Executive violates, or threatens to violate, any of the
Restrictions, the Corporation shall be entitled to obtain from any court of
competent jurisdiction, without the posting of any bond or other security,
preliminary and permanent injunctive relief as well as damages and an
equitable accounting of all earnings, profits and other benefits arising
from such violation, which rights shall be cumulative and in addition to
any other rights or remedies in law or equity to which the Corporation may
be entitled.
17. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the heirs and representatives of Executive and the
successors and assigns of the Corporation. The Corporation shall require
any successor (whether direct or indirect, by purchase, merger,
reorganization, consolidation, acquisition of property or stock,
liquidation or otherwise) to all or a significant portion of its assets,
by agreement in form and substance satisfactory to Executive, expressly to
assume and agree to perform this Agreement in the same manner and to the
same extent that the Corporation would be required to perform this
Agreement if no such succession had taken place. Regardless whether such
agreement is executed, this Agreement shall be binding upon any successor
of the Corporation in accordance with the operation of law and such
successor shall be deemed the "Corporation," for purposes of this
Agreement.
18. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if delivered by hand or mailed within the continental United States by
first-class certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) if to the Board or the Corporation, to:
Nanopierce Technologies, Inc.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: President
(b) if to Executive:
Xxxxxx X. Xxxxxxxx
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Such addresses may be changed by written notice sent to the other party at
the last recorded address of that party.
19. ARBITRATION OF ALL DISPUTES.
(a) Any controversy or claim arising out of or relating to this
Agreement or the breach thereof (including the arbitrability of any
controversy or claim), shall be settled by arbitration in the City of
Denver in accordance with the laws of the State of Colorado by three
arbitrators, one of whom shall be appointed by the Corporation, one by
Executive and the third of whom shall be appointed by the first two
arbitrators. If the first two arbitrators cannot agree on the appointment
of a third arbitrator, then the third arbitrator shall be appointed by the
American Arbitration Association. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association, except
with respect to the selection of arbitrators which shall be as provided in
this paragraph 19. The cost of any arbitration proceeding hereunder shall
be borne equally by the Corporation and Executive. The award of the
arbitrators shall be binding upon the parties. Judgment upon the award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
(b) If it shall be necessary or desirable for Executive to retain
legal counsel and incur other costs and expenses in connection with the
enforcement of any or all of her rights under this Agreement, and provided
that Executive substantially prevails in the enforcement of such rights,
the Corporation shall pay (or Executive shall be entitled to recover from
the Corporation, as the case may be) Executive's reasonable attorneys' fees
and costs and expenses in connection with the enforcement of her rights
including the enforcement of any arbitration award.
20. NO ASSIGNMENT. Except as otherwise expressly provided herein, this
Agreement is not assignable by any party and no payment to be made
hereunder shall be subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or other charge.
21. EXECUTION IN COUNTERPARTS. This Agreement may be executed by parties
hereto in two or more counterparts, each of which shall be deemed to be an
original, but all such counterparts shall constitute one and the same
instrument. The facsimile signature of any party to this Agreement shall
be considered an original signature of such person.
22. JURISDICTION AND GOVERNING LAW. Jurisdiction over disputes with
regard to this Agreement shall be exclusively in the courts of the State of
Colorado, and this Agreement shall be construed and interpreted in
accordance with and governed by the laws of the State of Colorado, other
than the conflict of laws provisions of such laws.
23. SEVERABILITY. If any provision of this Agreement shall be adjudged
by any court of competent jurisdiction to be invalid or unenforceable for
any reason, such judgment shall not affect, impair or invalidate the
remainder of this Agreement.
24. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of
the parties hereof, and supersedes all other oral or written agreements or
understandings between them regarding the subject matter hereof. No
change, alteration or modification hereof may be made except in a writing,
signed by each of the parties hereto.
25. HEADINGS DESCRIPTIVE. The headings of the several paragraphs of this
Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
NANOPIERCE TECHNOLOGIES, INC.
By: ________________________________
Xxxx X. Xxxxxxxxx, President & CEO
EXECUTIVE
By: _________________________________
Xxxxxx X. Xxxxxxxx
