Exhibit 10.5
EMPLOYMENT CONTRACT
THIS AGREEMENT made as of the 22 day of March 2000. Between NANOWORLD PROJECTS
CORPORATION, a corporation incorporated under the laws of the state of Delaware,
and having its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇, in the City of Bothell, State of Washington ("Employer") and ▇▇▇▇
▇▇▇▇▇▇▇▇, of __________________ ("Employee");
WHEREAS the Employer desires to obtain the benefit of the services of the
Employee, and the Employee desires to render such services on the terms and
conditions set forth.
IN CONSIDERATION of the promises and other good and valuable consideration
set forth, the parties agree as follows:
1. EMPLOYMENT
1.1 Commencing April 1st, 2000, the Employer hereby agrees to employ the
Employee, subject to the terms of this agreement, in the capacity of Chief
of Chemistry, responsible for advising the Employer with respect to
research and development related to the field of chemistry, and the
exploitation and improvement of intellectual property owned by the Employer
or its subsidiaries, or co-venturers, and the acquisition of new
intellectual property for the Employer. The Employee's duties may be
reasonably modified at the Company's discretion from time to time. In
fulfillment of these responsibilities, the Employee shall perform such
duties and exercise such specific responsibilities as are assigned from
time to time by the Board of Directors or Officers of the Employer. In
carrying out these duties and responsibilities, the Employee shall comply
with all written policies, procedures, rules and regulations, as are
announced by the Employer from time to time and carry out said duties in
and responsibilities in a diligent, faithful and honest manner.
1.2 The Employee will devote full time, attention, and energies to the business
of the Company, and, during this employment, will not engage in any other
business activity, regardless of whether such activity is pursued for
profit, gain, or other pecuniary advantage, save and except with the
written permission of the Employer. Employee is not prohibited from making
personal investments in any other businesses provided those investments do
not require active involvement in the operation of said companies.
1.3 The parties agree that there are no statements or representations, oral or
otherwise, express or implied, with respect to the employment opportunity
offered to the Employee, which form part of this agreement, other than
those which are set forth expressly in this agreement. This agreement
supersedes any prior representations, statements or agreements with respect
to the subject matter hereof and the employment opportunity offered to the
Employee. The parties agree that any such prior representations,
statements or agreements, if made, were not material to the execution of
this agreement, or to the decisions of either party to enter into this
agreement.
2. Compensation
2.1 As full compensation for all services provided herein, the Employer shall
pay or cause to be paid, to the Employee, and the Employee shall accept a
salary, at an annual rate of $65,000.00 (U.S.D.) commencing April 1st, 2000
to be paid in regular installments in accordance with the Employer's usual
paying practices, but not less frequently than monthly.
2.2 Such payments shall be subject to such deductions by the Employer as the
Employer is from time to time required to make pursuant to law, government
regulation or order or by agreement with, or consent of, the Employee.
2.3 The Employer is in the process of arranging an employee and consultant
incentive program, which shall include provisions respecting the granting
of options to acquire common stock of the Employer from the Employer
("Incentive Program"). The Employee shall have the right to participate in
the Incentive Program, once initiated on reasonable terms as the parties
may agree. For greater clarity, the parties agree that the Employee shall
not be denied participation in the incentive plan once initiated by the
Employer. The Employer understands that participation by the Employee in
the Incentive Program is a material inducement to the Employee to enter
this agreement.
3. Expenses
3.1 It is understood and agreed that the Employee will incur expenses in
connection with his duties under this agreement. Therefore, the Employer
agrees to reimburse the Employee for all reasonable expenses provided the
Employee provides to the Employer an itemized written account and receipts
acceptable to the Employer within thirty days after they have been
incurred. The Employee will not be reimbursed for any item in excess of
$1,000.00 U.S. dollars unless approved in advance by the Employer.
4. Vacation
4.1 The Employee shall be entitled to vacations in the amount of 3 weeks per
annum, and in addition to the period of December 23rd to January 5th, June
24th, and such other statutory holidays as are provided for by law.
5. Assignment of Intellectual Property Created by the Employee
5.1 The Employer and Employee agree that in consideration of the transaction
giving rise to this agreement and the Employment provided hereunder, the
Employee hereby assigns to the Employer all interest in any intellectual
property created by the Employee, including additions, alterations,
improvements and modifications to existing or acquired property of the
Employer ("Created Property").
5.2 The parties agree that the Employee shall be entitled to no compensation in
addition to the consideration herein provided for the creation of Created
Property relating to the business of the Employer, including nano-
technology, nano-particles, and assembly of nano-particles (the "Core
Technology")
5.3 The Employer shall be able to waive its assignment of any Created Property
in which case the Employee shall be free to exploit such Created Property
at his sole discretion.
5.4 The parties shall negotiate a separate agreement providing for reasonable
compensation for Created Property other than Core Technology that the
Employer may elect to exploit, which shall provide that the Employee shall
receive not less than 3% of any net profits accruing to the Employer from
the exploitation of such property, unless the parties otherwise agree.
6. Confidential Materials and Information
6.1 The Employee acknowledges that in the course of employment with the
Employer, the Employee will acquire and be exposed to information about
certain matters which are confidential to the Employer and not known to the
public, or the scientific community, or to competitors (the "Confidential
and Proprietary Materials and Information"), and which Confidential and
Proprietary Materials and Information are the exclusive property of the
Employer, and includes:
(a) confidential methods of operation, which includes all information
relating to the Employer's intellectual property owned by subsidiaries
of the Employer, unique marketing programs, unique products, unique
methods, unique service systems, unique security information and
systems, and trade secrets;
(b) all information regarding the Employer's existing customers and
client, including customer lists, contracts, prices, invoices,
computer printouts, and other similar information;
(c) all information concerning the Employer's potential customers and
clients, including mailing lists, prospect cards, and other similar
information; any information about the business of the Employer that
is not known to the public or competitors, or any other information
which gives the Employer an opportunity to obtain an advantage over
competitors who do not know of such information;
(d) financial information, including the Employer's costs, sales, income,
profits and other similar information; business opportunities,
including all ventures considered by the Employer, whether or not such
ventures are pursued;
(e) personnel information, including the names of employees and applicable
remuneration and benefit policies, and computer programs and
procedures relating to the Employer's business, including related data
input procedures or techniques, and similar information;
(f) intellectual property assigned to the Employer pursuant to paragraph
5.1 herein.
6.2 The Employee acknowledges that the Confidential and Proprietary Materials
and Information referred to herein could be used to the detriment of the
Employer. Accordingly, throughout the time of the Employee's employment
with the Employer, the Employee undertakes not to disclose to any third
party and to treat in strict confidence all Confidential and Proprietary
Materials and Information, except where disclosure is made with the prior
written permission of an Officer of the Employer, or required by law.
Further, after the termination of the Employee's employment with the
Employer, regardless of how that termination should occur, the Employee
undertakes, without time limitation, not to disclose to any third party and
to treat in strict confidence all Confidential and Proprietary Materials
and Information, except where disclosure is made with the prior written
permission of the President of the Employer, or required by law. For
greater clarity, the parties agree that the Employee is under no
restriction with respect to information relating to the Employer or its
business affairs that are generally known to the public, or scientific
community. The Employer undertakes to provide a list of persons to whom
the Employee is authorized to disclose Confidential and Proprietary
Materials and Information, and to update or alter that list from time to
time. Any list provided pursuant to this undertaking shall constitute
written permission if signed by the President of the Employer.
6.3 The Employee understands and agrees that the restrictions and covenants
contained in paragraph 6.2 constitute a material inducement to the Employer
to enter into this agreement and to employ the Employee, and that the
Employer would not enter into this agreement absent such inducement. The
Employee agrees that such restrictions and covenants shall be construed
independent of any other provision of this agreement, and the existence of
any claim or cause of action by the Employee against the Employer, whether
predicated under this agreement or otherwise, shall not constitute a
defense to the enforcement by the Employer of the said restrictions and
covenants.
6.4 The Employee acknowledges that all items of any and every nature or kind
created by the Employee pursuant to the Employee's employment under this
agreement, or used by the Employee pursuant to the Employee's employment
under this agreement, or furnished by the Employer to the Employee, and all
equipment, automobiles, credit cards, books, records, reports, files,
manuals, literature, and Confidential Materials and Information shall
remain and be considered the exclusive property of the Employer at all
times and shall be surrendered to the Employer, in good condition, on
demand, and in any event, promptly on the termination of the Employee's
employment irrespective of the time, manner or cause of the termination.
6.5 The Employee acknowledges, agrees, and understands that, without prejudice
to any and all remedies available to the Employer, an injunction is the
only effective remedy for any breach of the Employee's covenants under
paragraph 6.2, and that the Employer would suffer irreparable harm and
injury in the event of any such breach. Accordingly, the Employee hereby
agrees that the Employer may apply for and have injunctive relief,
including an interim or interlocutory injunction, in any court of competent
jurisdiction, to enforce paragraph 6.2 upon the breach or threatened breach
thereof. The Employee further agrees that the Employer may apply for and
is entitled to said injunctive relief without having to prove damages, and
is entitled to all costs and expenses, including reasonable legal costs.
7. Non-Competition
7.1 The Employer and Employee agree that in consideration of the transaction
giving rise to this agreement and the Employment provided hereunder, the
Employee shall not, during the term of this agreement, or 5 years from the
date on which the Employee ceases to be employed by the Employer ("Post-
Termination Non-Competition Period") alone or in partnership with any other
person, firm or corporation, as principal, agent, shareholder or in any
other manner, carry on or be engaged in or concerned with or interested in,
directly or indirectly, or advise, be employed by, or permit his name or
any part thereof to be used by any person, firm or corporation engaged in
or interested in any enterprise which is competitive to the Employer's
business, solicit or attempt to solicit the business of any customer of the
Employer who has been a customer of the Employer at any time in the thirty-
six months preceding the date of termination or expiry of this agreement,
or request or influence any employee of the Employer to terminate his
employment. The Employee acknowledges and confirms that the scope of this
covenant is in all respects no more than reasonable to protect the
Employer.
7.2 The Employee acknowledges, agrees, and understands that, without prejudice
to any and all remedies available to the Employer, an injunction is the
only effective remedy for any breach of the Employee's covenants under
paragraph 6.1 and that the Employer would suffer irreparable harm and
injury in the event of any such breach. Accordingly, the Employee hereby
agrees that the Employer may apply for and have injunctive relief,
including an interim or interlocutory injunction, in any court of competent
jurisdiction, to enforce any of the provisions of paragraph 6.1 upon the
breach or threatened breach thereof. The Employee further agrees that the
Employer may apply for and is entitled to said injunctive relief without
having to prove damages, and is entitled to all costs and expenses,
including reasonable legal costs.
7.3 The Employee understands and agrees that the restrictions and covenants
contained in paragraph 6.1 constitute a material inducement to the Employer
to enter into this agreement and to employ the Employee, and that the
Employer would not enter into this agreement absent such inducement. The
Employee agrees that the restrictions and covenants contained in this
paragraph shall be construed independent of any other provisions of this
agreement, and the existence of any claim or cause of action by the
Employee against the Employer, whether predicated under this agreement or
otherwise, shall not constitute a defense to the enforcement by the
Employer of said restrictions and covenants contained in this paragraph.
Further, any clause or provisions of this paragraph that may be found
unenforceable shall be considered to be severable from the rest of this
paragraph, which remaining portions shall continue in full force and effect
in accordance with the terms of this paragraph and agreement.
7.4 On the cessation of his employment with the Employer, otherwise than by
reason of the liquidation of the Employer, or by reason of dismissal from
the Employer for misconduct or serious breach of contractual obligations,
the Employer agrees that should the Employee in good faith be offered a
position, acceptance of which would cause him to be in breach of the
obligations contained in paragraph 6.1, the Employer will pay to him the
lesser of his base salary until the end of the Post-Termination Non-
Competition Period or the amount of the financial loss that would be
suffered by the Employee by declining the offer, provided that the Employee
has made written application to the company within 7 days of the offer to
be released from the provisions of paragraph 6.1, and the Employer has
refused to release him.
8. Termination
8.1 This agreement may be terminated in the following manner:
(a) By the Employee on the giving of 12 weeks' notice to the Employer.
The Employer may waive the notice, in whole or in part.
(b) By the Employer on the giving of one months' notice to the Employee
for each year of service pursuant to this agreement, or payment in
lieu thereof ("Notice Period"), in which case the Employee shall be
free to seek other employment. Should the Employee obtain other
employment prior to the end of the Notice Period, the Employer's
obligations shall cease as at the date other employment is obtained.
(c) By the Employer, at its option, for cause including: a material breach
of the provisions of this agreement, and conviction of the Employee of
a criminal offense punishable by indictment.
9. Entire Agreement
9.1 The written provisions of this agreement shall constitute the full extent
of the employment contract between the Employer and the Employee regardless
of any oral agreements or understandings that may presently or hereafter
exist between the Employer and the Employee. No waiver or modification of
any provision of this agreement shall be valid unless in writing and duly
executed by both the Employer and the Employee.
10. Waiver and Modification
10.1 No amendments to this agreement shall be valid or binding unless set forth
in writing and duly executed by both of the parties hereto. No waiver of
any breach of any term or provision of this agreement shall be effective or
binding unless made in writing and signed by the party purporting to give
the same and, unless otherwise provided in the written waiver, shall be
limited to the specific breach waived.
10.2 The parties agree that in the event that any provision, clause or article
herein, or part thereof, shall be deemed void, involved, or unenforceable
by a court of competent jurisdiction, the remaining provisions, clauses or
articles, or part thereof, shall be and remain in full force and effect.
11. Assignment
11.1 This agreement is personal to the Employee and is not assignable by him and
shall not enure to the benefit of his heirs, executors or personal
representatives. The Employer shall be fully assignable by the Employer at
its sole discretion.
12. Independent Legal Advice
12.1 The Employee acknowledges that he has read and understands this agreement,
and acknowledges that he has had the opportunity to obtain independent
legal advice with respect to it.
13. Choice of Law
13. This Agreement shall be construed and enforced in accordance with the laws
of the Province of British Columbia.
IN WITNESS WHEREOF the Employer has caused this agreement to be executed by
its duly authorized officers and the Employee has hereunto set his hand as of
the date first above written.
SIGNED, SEALED AND DELIVERED in the presence of:
▇▇▇▇ ▇▇▇▇▇▇▇▇ Nanoworld Projects Corporation
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------- -----------------
per:
President c/s
/s/ ▇▇▇▇▇▇▇ Battistino
-----------------------
[Signature of witness]