UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE
OF
REPORT (DATE OF EARLIEST EVENT REPORTED):
August
3, 2006
NanoSensors,
Inc.
(Exact
name of registrant as specified in its charter)
COMMISSION
FILE NUMBER
:
000-51007
NEVADA
|
20-0452700
|
(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
1800
Wyatt Drive, Suite No. 2
|
Santa
Clara, CA 95054
|
(Address
and zip code of principal executive
offices)
|
(408)
855-0051
(Registrant's
telephone number, including area code
CHECK
THE APPROPRIATE BOX BELOW IF THE FORM 8-K FILING IS INTENDED TO
SIMULTANEOUSLY SATISFY THE FILING OBLIGATION OF THE REGISTRANT UNDER
ANY
OF THE FOLLOWING PROVISIONS:
¨
Written communications pursuant to Rule 425 under the Securities
Act (17
CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR
240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
|
|
Entry
into a Material Definitive Agreement.
|
|
|
|
NanoSensors,
Inc. (the “Registrant”) has entered into employment agreements with each
of Ted L. Wong, its Chief Executive Officer and President and Joshua
Moser, its new Vice President and Chief Operating Officer.
Employment
Agreement with Ted L. Wong
The
Registrant and Ted L. Wong, our Chief Executive Officer, President
and
Chairman have entered into an employment agreement dated as of August
3,
2006 pursuant to which:
·
Mr. Wong will continue to serve as our Chief Executive Officer, President
and Chairman for an employment period of 36 months from the effective
date
of the employment agreement.
·
Mr. Wong will
receive
an annual base salary of $144,000 under the employment agreement
and was
granted a signing bonus of $40,000, of which $20,000 was previously
paid.
In addition, Mr. Wong will be entitled to a performance bonus of
up to a
maximum of $50,000 in the event he achieves certain milestones defined
in
the employment agreement.
·
In
connection with his entering into the employment agreement, Mr. Wong
was
awarded two grants of options, both of which are subject to the approval
of the Registrant’s stockholders of an equity compensation plan to
be presented to them at the Registrant’s next stockholders meeting.
The initial grant consisted of options to purchase 5,000,000 shares
of
common stock, all of which shall vest on the six month anniversary
of the
effective date of the employment agreement. The second grant consists
of
options to purchase 13,000,000 shares of common stock, which shall
vest in
equally monthly installments commencing on the six month anniversary
date
of the employment agreement. Both options shall be exercisable for
a
period of ten years at a per share exercise price equal to the closing
price of the Registrant’s common stock on the effective date of the
employment agreement. Further, all of the options granted to Mr.
Wong will
become
immediately vested and exercisable in accordance with, and subject
to, the
terms and conditions of such plan, in the event of a change of control
of
the Registrant or if Mr. Wong is terminated without cause.
·
If
Mr. Wong’s employment is terminated by us without “cause” (as defined
in the employment agreement), he would be entitled to a severance
payment
of his base salary, at the rate then in effect, for a period of six
months.
If
Mr. Wong’s employment is terminated by us for “cause”, he (a) would
not be entitled to any further compensation or benefits and (b) would
not
be entitled to any additional rights or vesting with respect to the
stock
options following the date of termination.
·
Mr. Wong
is subject to customary confidentiality obligations, non-solicitation
and
non-competition that survive the termination of the employment
agreement.
Employment
Agreement with Joshua Moser
The
Registrant and Joshua Moser, our new Vice President and Chief Operating
Officer, have entered into an employment agreement dated as of August
3,
2006 pursuant to which:
·
Mr. Moser will serve as our Vice President and Chief Operating Officer
for an employment period of 36 months from the effective date of the
employment agreement.
·
Mr. Moser will
receive
an annual base salary of $120,000 under the employment
agreement
.
·
In
connection with his entering into the employment agreement, Mr. Moser
was
awarded two grants of options, both of which are subject to the approval
of the Registrant’s stockholders of an equity compensation plan to be
presented to them at the Registrant’s next stockholders meeting. The
initial grant consisted of options to purchase 4,000,000 shares of
common
stock, all of which shall vest on the six month anniversary of the
effective date of the employment agreement. The second grant consists
of
options to purchase 10,200,000 shares of common stock, which shall
vest in
equally monthly installments commencing on the six month anniversary
date
of the employment agreement. Both options shall be exercisable for
a
period of ten years at a per share exercise price equal to the closing
price of the Registrant’s common stock on the effective date of the
employment agreement. Further, all of the options granted to Mr.
Moser
will
become
immediately vested and exercisable in accordance with, and subject
to, the
terms and conditions of such plan, in the event of a change of control
of
the Registrant or if Mr. Moser is terminated without cause.
|
|
·
If
Mr. Moser’s employment is terminated by us without “cause” (as
defined in the employment agreement), he would be entitled to a severance
payment of his base salary, at the rate then in effect, for a period
of
six months.
If
Mr. Moser’s employment is terminated by us for “cause”, he (a) would
not be entitled to any further compensation or benefits, and (b)
would not
be entitled to any additional rights or vesting with respect to the
stock
options following the date of termination.
·
Mr. Moser
is subject to customary confidentiality obligations, non-solicitation
and
non-competition that survive the termination of the employment agreement.
The
above summaries are qualified in their entirety by reference to the
actual
employment agreements entered into between the Registrant and Messrs.
Wong
and Moser, respectively, copies of which agreements are attached
hereto as Exhibits 10.1 and 10.2, respectively, to this Current
Report and which are incorporated by reference in this Item 1.01 in
its entirety.
|
Item
3.02
|
Unregistered
Sales of Equity Securities.
|
|
|
|
The
information required to be disclosed in this Item 3.02 concerning
the
grant of stock options to Messrs. Wong and Moser is incorporated
herein by
reference from Item 1.01 of this Current Report.
|
|
|
Item 5.02
|
Departure
of Directors or Principal Officers; Election of Directors; Appointment
of
Principal Officers.
|
|
|
|
On
August 3, 2006, the Registrant appointed Mr. Joshua Moser as its
Vice
President and Chief Operating Officer. Mr. Moser is currently the
Corporate Secretary of the Registrant. The information required to
be
disclosed in this Item 5.02 concerning the employment agreement between
the Registrant and Mr. Moser is incorporated herein by reference
from Item
1.01 of this Current Report.
Mr.
Moser has been providing consulting services to the Registrant since
November 2005. Pursuant to that consulting arrangement, the Registrant
has
paid Mr. Moser consulting fees at the rate of $6,500 per month from
November 2005 through May 2006 and thereafter at the rate of $10,000
per
month. Prior to working with NanoSensors, Inc., from September 1999
to
October 2000, Mr. Moser was the Director of Business Development
at GCN,
Inc., an online market research company. From October 2000 to September
2002, Mr. Moser was a research analyst at Tufan, Inc., where he analyzed
and managed investments in privately-held software, semiconductor
and
technology service companies. From September 2002 through February
2005,
Mr. Moser was employed as a Vice President with Sherwood Partners,
Inc., a
business and financial advisory consulting firm that assists commercial
lending institutions and venture capital firms in managing and structuring
corporate turnarounds. Thereafter and before joining the Registrant
Mr.
Moser has been providing management consulting services, including
serving
as Interim Chief Financial Officer at Chuckwalla, Inc., a privately-held
software company. Mr. Moser is 35 years of age and graduated from
Denison
University in 1994 with a B.A. in History.
|
|
|
Item
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
.
|
|
|
|
On
August 3, 2006, the Board approved an amendment to Article I,
Section 1.9 of the Registrant’s Bylaws in order to eliminate a
provision permitting stockholders to vote for the election of directors
on
a cumulative basis. As modified, this Section now provides that the
Registrant’s directors shall be elected by a plurality and no cumulative
voting shall be permitted. A copy of the amended Bylaws is filed
as
Exhibit 3.01 to this Current Report and is incorporated herein by
reference.
|
Item
8.01
|
Other
Events.
|
|
|
|
On
August 8, 2006, the Registrant announced that it had entered into
employment agreements with Dr. Wong and Mr. Moser and that it appointed
Mr. Moser as its Vice President and Chief Operating Officer. A copy
of the
press release is attached to this Report on Form 8-K as Exhibit
99.1.
|
|
|
Item
9.01
|
Financial
Statements and Exhibits.
|
|
|
(c)
|
Exhibits.
|
|
|
|
The
following exhibits are filed or furnished herewith:
|
Exhibit
No.
|
|
Description
of Document
|
|
|
|
3.1
|
|
Amended
Bylaws.
|
|
|
|
10.1
|
|
Employment
Agreement between the Registrant and Ted L. Wong
|
|
|
|
10.2
|
|
Employment
Agreement between the Registrant and Joshua Moser
|
|
|
|
99.1
|
|
Press
Release dated August 8, 2006
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned, hereunto
duly authorized.
|
|
|
|
NANOSENSORS,
INC.
|
|
|
|
|
By:
|
/s/ Ted
L.
Wong
|
|
Name:
Ted L. Wong
|
|
Title:
Chief Executive Officer and President
|
|
Date:
August 9, 2006
|
Exhibit
Index
Exhibit
No.
|
|
Description
of Document
|
|
|
|
3.1
|
|
Amended
Bylaws
|
|
|
|
10.1
|
|
Employment
Agreement between the Registrant and Ted L. Wong
|
|
|
|
10.2
|
|
Employment
Agreement between the Registrant and Joshua Moser
|
|
|
|
99.1
|
|
Press
Release dated August 8, 2006
|
BYLAWS
OF
NANOSENSORS,
INC.
(amended
as of August 3, 2006)
ARTICLE
I -SHAREHOLDERS
1.01
ANNUAL MEETING.
Unless
the Directors or the President of the corporation select a different time or
date, the annual meeting of shareholders shall be held each year at the location
set by the Directors or if no location is set, at the corporation's office.
The
annual meeting shall be for the purpose of electing a Board of Directors and
transacting such other business as may properly be brought before the
meeting.
1.02
SPECIAL MEETING.
Special
meetings of shareholders may be called at any time by the Board of Directors,
any two directors or the President.
1.03
LOCATION OF MEETING.
Meetings
of shareholders shall be held at the principal executive office of the
corporation or at any other place which may be designated by the Board of
Directors.
1.04
NOTICE.
(a)
Annual
and Special Meetings
.
A
written notice of each meeting of shareholders shall be given not more than
sixty (60) days and, except as provided below, not less than ten (10) days
before the date of the meeting to each shareholder entitled to vote at the
meeting. The notice shall state the place, date and hour of the meeting and,
if
directors are to be elected at the meeting, the names of the nominees intended
to be presented by management for election. The notice shall also state (i)
in
the case of an annual meeting, those matters which the Board of Directors
intends to present for action by the shareholders, and (ii) in the case of
a
special meeting, the general nature of the business to be transacted and that
no
other business may be transacted. Notice shall be delivered personally, by
mail
or other means addressed to the shareholder at the address of such shareholder
appearing on the books of the corporation or given by the shareholder to the
corporation for the purpose of notice or as otherwise provided by law. Upon
written request to the Chairman of the Board, the President, the Secretary
or
any Vice President of the corporation by any person (but not the Board of
Directors) entitled to call a special meeting of shareholders, the person
receiving such request shall cause a notice to be given to the shareholders
entitled to vote that a meeting will be held at a time requested by the person
calling the meeting not less than thirty-five (35) nor more than sixty (60)
days
after the receipt of the request.
(b)
Adjourned
Meetings.
Notice
of
an adjourned meeting need not be given if (i) the meeting is adjourned for
forty-five (45) days or less; (ii) the time and place of the adjourned meeting
are announced at the meeting at which the adjournment is taken; and (iii) no
new
record date is fixed for the adjourned meeting. Otherwise, notice of the
adjourned meeting shall be given as in the case of an original
meeting.
1.05
RECORD DATE.
The
Board
of Directors may fix in advance a record date for the determination of the
shareholders entitled to notice of any meeting to vote, to receive payment
of
any dividend or other distribution or allotment or rights or to exercise any
rights. Such record date shall not be more than sixty (60) nor less than ten
(10) days prior to the date of the meeting or more than sixty (60) days prior
to
such other action. Except as provided by law, when a record date is so fixed,
only shareholders on the record date are entitled to notice and to vote, to
receive the dividend, distribution or allotment of rights or to exercise rights,
as the case may be, notwithstanding any transfer of shares on the books of
the
corporation after the record date. Except as otherwise provided by law, the
corporation shall be entitled to treat the holder of record of any shares as
the
holder in fact of such shares and shall not be bound to recognize any equitable
or other claim to or interest in such shares on the part of any other person,
whether or not the corporation shall have the express or other notice of such
claim or interest. A determination of shareholders of record entitled to notice
or to vote at a meeting of shareholders shall apply to any adjournment of the
meeting unless the Board of Directors fixes a new record date. The Board of
Directors shall fix a new record date if the adjourned meeting takes place
more
than forty-five (45) days from the date set for the original
meeting.
1.06
MEETING WITHOUT REGULAR CALL AND NOTICE.
The
transactions of any meeting of shareholders, however called and noticed and
wherever held, are as valid as though had a meeting duly been held after regular
call and notice if a quorum is present in person or by proxy and if, either
before or after the meeting, each of the persons entitled to vote who is not
present at the meeting in person or by proxy signs a written waiver of notice,
a
consent to the holding of the meeting or an approval of the minutes of the
meeting. For such purposes, a shareholder shall not be considered present at
a
meeting if, at the beginning of the meeting, the shareholder objects to the
transaction of any business because the meeting was not properly called or
convened or, with respect to the consideration of a matter required to be
included in the notice for the meeting which was not so included, the
shareholder expressly objects to such consideration at the meeting.
1.07
QUORUM AND REQUIRED VOTE.
A
majority of the shares entitled to vote represented in person or by proxy,
constitutes a quorum for the transaction of business. No business may be
transacted at a meeting in the absence of a quorum other than the adjournment
of
such meeting, except that if a quorum is present at the commencement of a
meeting, business may be transacted until the meeting is adjourned even though
the withdrawal of shareholders results in less than a quorum. If a quorum is
present at a meeting, the affirmative vote of a majority of the shares
represented at the meeting and entitled to vote on any matter shall be the
act
of the shareholders unless the vote of a larger number is required by law or
the
Articles of Incorporation. If a quorum is present at the commencement of a
meeting but the withdrawal of shareholders results in less than a quorum, the
affirmative vote of the majority of shares required to constitute a quorum
shall
be the act of the shareholders unless the vote of a larger number is required
by
law or the Articles of Incorporation. Any meeting of shareholders whether or
not
a quorum is present, may be adjourned by the vote of a majority of the shares
represented at the meeting.
1.08
PROXIES.
A
shareholder may be represented at any meeting of shareholders by a written
proxy
signed by the person entitled to vote or by such person's duly authorized
attorney-in-fact. A proxy must bear a date within six (6) months prior to the
meeting, unless the proxy specifies a different length of time, but in no event
may the proxy continue in force for more than seven (7) years. A revocable
proxy
is revoked by a writing delivered to the Secretary of the corporation stating
that the proxy is revoked or by a subsequent proxy executed by, or by attendance
at the meeting and voting in person by, the person executing the
proxy.
1.09
VOTING.
Except
as provided below or as otherwise provided by the Articles of Incorporation
or
by law, a shareholder shall be entitled to one vote for each share held of
record on the record date fixed for the determination of the shareholders
entitled to vote at a meeting or, if no such date is fixed, the date determined
in accordance with law. Directors shall be elected by a plurality of the votes
cast at the election and cumulative voting shall not be permitted. The
candidates receiving the highest number of votes up to the number of directors
to be elected shall be elected.
1.10
ELECTION INSPECTORS.
One
(1)
or three (3) election inspectors may be appointed by the Board of Directors
in
advance of a meeting of shareholders or at the meeting by the chairman of the
meeting. If not previously chosen, one (1) or three (3) inspectors shall be
appointed by the chairman of the meeting if a shareholder or proxyholder so
requests. When inspectors are appointed at the request of a shareholder or
proxyholder, the majority of shares represented in person or by proxy shall
determine whether one (1) or three (3) inspectors shall be chosen. The election
inspectors shall determine all questions concerning the existence of a quorum
and the right to vote, shall tabulate and determine the results of voting and
shall do all other acts necessary or helpful to the expeditious and impartial
conduct of the vote. If there are three (3) inspectors, the decision, act or
certificate of a majority of the inspectors is effective as if made by
all.
1.11
ACTION WITHOUT MEETING.
Except
as
provided below or by the Articles of Incorporation, any action which may be
taken at any meeting of shareholders may be taken without a meeting and without
prior notice if a consent in writing, setting forth the action so taken, is
signed, before or after the action, by the holders of outstanding shares having
not less than the minimum number of votes which would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote on such
action were present and voted.
1.12
REPORTS.
Any
annual report to shareholders specified in the Nevada Revised Statutes is
dispensed with, except as the Board of Directors may otherwise determine, as
long as here are less than one hundred (100) holders of record of the
corporation's shares. Any such annual report sent to shareholders shall be
sent
at least fifteen (15) days prior to the next annual meeting of
shareholders.
1.13
LOST STOCK CERTIFICATES.
The
corporation may cause a new stock certificate to be issued in place of any
certificate previously issued by the corporation alleged to have been lost,
stolen or destroyed. The corporation may, at its discretion and as a condition
precedent to such issuance, require the owner of such certificate to deliver
an
affidavit stating such certificate was lost, stolen or destroyed or to give
the
corporation a bond or other security sufficient to indemnify it against any
claim that may be made against it, including any expense or liability, on
account of the alleged loss, theft or destruction or the issuance of a new
certificate.
1.14
CERTIFICATES FOR SHARES.
Certificates
for shares shall be of such form and device as the Board of Directors may
designate and shall state the name of the record holder of the shares
represented thereby; its number; date of issuance; the number of shares for
which it is issued; a statement of the rights, privileges, preferences and
restrictions, if any; a statement as to the redemption or conversion, if any;
a
statement of liens or restrictions upon transfer or voting, if any; if the
shares be assessable or, if assessments are collectible by personal action,
a
plain statement of such facts.
All
certificates shall be signed in the name of the corporation by the President
or
the Treasurer or the Secretary, certifying the number of shares and the class
or
series of shares owned by the Shareholder. Any or all of the signatures on
the
certificate may be facsimile. In case any Officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed on a certificate
shall have ceased to be that Officer, transfer agent, or registrar before that
certificate is issued, it may be issued by the corporation with the same effect
as if that person were an Officer, transfer agent, or registrar at the date
of
issue.
1.15
TRANSFER ON THE BOOKS.
Upon
surrender to the Secretary or transfer agent of the corporation of a certificate
for shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the corporation
to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
1.16
LEGEND CONDITION.
In the
event any shares of this corporation are issued pursuant to a permit or
exemption therefrom requiring the imposition of a legend condition, the person
or persons issuing or transferring said shares shall make sure said legend
appears on the certificate and shall not be required to transfer any shares
free
of such legend unless an amendment to such permit or a new permit be first
issued so authorizing such a deletion.
ARTICLE
II - BOARD OF DIRECTORS
2.01
NUMBER.
The
number of directors of this corporation shall be at least one (1) but not more
than nine (9) until such number is changed by an amendment of the Articles
of
Incorporation or this Bylaw.
2.02
POWERS.
Subject
to the limitations imposed by law or contained in the Articles of Incorporation,
the business and affairs of corporation shall be managed and all corporate
powers shall be exercised by or under the ultimate direction of the Board of
Directors.
2.03
ELECTION, TERM OF OFFICE AND VACANCIES.
At each
annual meeting of shareholders, directors shall be elected to hold office until
the next annual meeting. Each director, including a director elected to fill
a
vacancy, shall hold office until the expiration of the term for which the
director was elected and until a successor has been elected. The Board of
Directors may declare vacant the office of a director who has been declared
to
be of unsound mind by court order or convicted of a felony. Vacancies on the
Board of Directors not caused by removal may be filled by a majority of the
directors then in office, regardless of whether they constitute a quorum, or
by
the sole remaining director. The shareholders may elect a director at any time
to fill any vacancy not filled, or which cannot be filled, by the Board of
Directors.
2.04
REMOVAL.
Except
as described below, any or all of the directors may be removed without cause
if
such removal is approved by the affirmative vote of the majority of the
outstanding shares entitled to vote. Unless the Board of Directors is so
removed, no director may be removed if (i) the votes cast against removal,
or
not consenting in writing to such removal, would be sufficient to elect such
director if voted cumulatively at an election at which the same total number
of
votes were cast or, if such action is taken by written consent, all shares
entitled to vote were voted and (ii) the entire number of directors authorized
at the time of the director's most recent election were then being
elected.
2.05
RESIGNATION.
Any
director may resign by giving written notice to the President, the Secretary
or
the Board of Directors. Such resignation shall be effective when given unless
the notice specifies a later time. The resignation shall be effective regardless
of whether it is accepted by the corporation.
2.06
COMPENSATION.
If the
Board of Directors so resolves, the directors shall receive compensation and
expenses of attendance for meetings of the Board of Directors and of committees
of the Board. Nothing herein shall preclude any director from serving the
corporation in another capacity and receiving compensation for such
services.
2.07
COMMITTEES.
The
Board
of Directors may, by resolution adopted by the majority of the authorized number
of directors, designate one or more committees, each consisting of two or more
directors, to serve at the pleasure of the Board. The Board may designate one
or
more directors as alternate members of a committee who may replace any absent
member at any meeting of the committee. To the extent permitted by the
resolution of the Board of Directors, a committee may exercise all of the
authority of the Board to the extent permitted by the Nevada Revised
Statutes.
2.08
INSPECTION OF RECORDS AND PROPERTIES.
Each
director may inspect all books, records, documents and physical properties
of
the corporation and its subsidiaries at any reasonable time. Inspections are
to
be made either by the director or the director's agent or attorney. The right
of
inspection includes the right to copy and make extracts.
2.09
TIME AND PLACE OF MEETINGS AND TELEPHONE MEETINGS.
Unless
the Board of Directors otherwise determines, the Board shall hold a regular
meeting during each quarter of the Corporation's fiscal year. One such meeting
shall take place immediately following the annual meeting of shareholders.
All
meetings of directors shall be held at the principal executive office of the
corporation or at such other place as shall be designated in the notice for
the
meeting or in resolution of the Board of Directors. Directors may participate
in
a meeting through use of conference telephone or similar communications
equipment, so long as all members so participating can hear each other.
2.10
CALL.
Meetings
of the Board of Directors, whether regular or special, may be called by the
President, the Secretary, or any directors.
2.11
NOTICE.
Regular
meetings of the Board of Directors may be held without notice if the time of
such meetings has been fixed by the Board. Special meetings shall be held upon
four (4) days' notice by mail or twenty-four (24) hours' notice delivered
personally or by telephone, email or telecopier, and regular meetings shall
be
held upon similar notice if notice is required for such meetings. Neither a
notice nor a waiver of notice need specify the purpose of any regular or special
meeting. If a meeting is adjourned for more than twenty-four (24) hours, notice
of the adjourned meeting shall be given prior to the time of such meeting to
the
directors who were not present at the time of the adjournment.
2.12
MEETING WITHOUT REGULAR CALL AND NOTICE.
The
transactions of any meeting of the Board of Directors, however called and
noticed or wherever held, are as valid as though had at a meeting duly held
after regular call and notice if a quorum is present and if, either before
or
after the meeting, each of the directors not present signs a written waiver
of
notice, a consent to holding the meeting or an approval of the minutes of the
meeting. For such purposes, a director shall not be considered present at a
meeting if, although in attendance at the meeting, the director protests the
lack of notice prior to the meeting or at its commencement.
2.13
ACTION WITHOUT MEETING.
Any
action required or permitted to be taken by the Board of Directors may be taken
without a meeting, if all of the members of the Board individually or
collectively consent in writing to such action.
2.14
QUORUM AND REQUIRED VOTE.
A
majority of the directors then in office shall constitute a quorum for the
transaction of business provided that unless the authorized number of directors
is one (1), the number constituting a quorum shall not be less than two (2)
directors. Except as otherwise provided by the Nevada Revised Statutes, the
Articles of Incorporation or these Bylaws, every act or decision done or made
by
a majority of the directors present at a meeting duly held at which quorum
is
initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting. A majority of the directors present
at
a meeting, whether or not a quorum is present, may adjourn the meeting to
another time and place.
ARTICLE
III - OFFICERS
3.01
TITLES AND RELATION TO BOARD OF DIRECTORS.
The
officers of the
corporation
shall include a President, a Secretary and a Treasurer. The Board of Directors
may also choose a Chief Financial Officer and one (1) or more Vice Presidents,
Assistant Secretaries, Assistant Treasurers or other officers. Any number of
offices may be held by the same person. The President shall serve as Chairman
of
the Board. All Officers shall perform their duties and exercise
their
powers subject to the direction of the Board of Directors.
3.02
ELECTION, TERM OF OFFICE AND VACANCIES.
At its
regular meeting after each annual meeting of shareholders, the Board of
Directors shall choose the officers of the corporation. No officer need be
a
member of the Board of Directors except the President. The officers shall hold
office until their successors are chosen, except that the Board of Directors
may
remove any officer at any time. If an office becomes vacant for any reason,
the
vacancy shall be filled by the Board.
3.03
RESIGNATION.
Any
officer may resign at any time upon written notice to the corporation without
prejudice to the rights, if any, of the corporation under any contract to which
the officer is a party. Such resignation shall be effective when given unless
the notice specifies a later time. The resignation shall be effective regardless
of whether it is accepted by the corporation.
3.04
SALARIES.
The
Board of Directors shall fix the salaries of the Chairman of the Board and
President and may fix the salaries of other employees of the corporation
including the other officers. If the Board does not fix the salaries of the
other officers, the President shall fix such salaries.
3.05
CHAIRMAN OF THE BOARD.
The
Chairman of the Board shall preside over all meetings of the Board of
Directors.
3.06
PRESIDENT.
Unless
otherwise determined by the Board of Directors, the President shall be the
general manager and chief executive officer of the corporation, shall preside
at
all meetings of shareholders, shall be ex officio a member of any committees
of
the Board shall effectuate orders and resolutions of the Board of Directors
and
shall exercise such other powers and perform such other duties as the Board
of
Directors shall prescribe.
3.07
SECRETARY.
The
Secretary shall have the following powers and duties:
(a)
Record
of Corporate Proceedings.
The
Secretary shall attend all meetings of the Board of Directors and its committees
and of shareholders and shall record all votes and the minutes of such meetings
in a book to be kept for that purpose at the principal executive office of
the
corporation or at such other place as the Board of Directors may
determine.
(b)
Record
of Shares.
Unless a
transfer agent is appointed by the Board of Directors to keep a share register,
the Secretary shall keep at the principal executive office of the corporation
a
share register showing the names of the shareholders and their addresses, the
number and class of shares held by each, the number and date of certificates
issued and the number and date of cancellation of each certificate surrendered
for cancellation.
(c)
Notices
.
The
Secretary shall give such notices as may be required by law or these
Bylaws.
(d)
Additional
Powers and Duties.
The
Secretary shall exercise such other powers and perform such other duties as
the
Board of Directors or President shall prescribe.
3.08
TREASURER.
Unless
otherwise determined by the Board of Directors, the Treasurer shall have custody
of the corporate funds and securities and shall keep adequate and correct
accounts of the corporation's properties and business transactions. The
Treasurer shall disburse such funds of the corporation as may be ordered by
the
Board of Directors, taking proper vouchers for such disbursements, shall render
to the President and directors, at regular meetings of the Board of Directors
or
whenever the Board may require, an account of all transactions and the financial
condition of the corporation and shall exercise such other powers and perform
such other duties as the Board of Directors or President shall
prescribe.
3.09
OTHER OFFICERS.
The
other officers of the corporation, if any, shall perform such duties as the
Board of Directors or President shall prescribe.
ARTICLE
IV
EXECUTION
OF CORPORATE INSTRUMENTS,
RATIFICATION
OF CONTRACTS, AND
VOTING
OF SHARES OWNED BY THE CORPORATION
4.01
EXECUTION OF CORPORATE INSTRUMENTS.
The
Board may, in its discretion, determine the method and designate the signatory
officer or officers, or other person or persons, to execute any corporate
instrument or documents, or to sign the corporate name without limitation,
except where otherwise provided by law, and such execution or signature shall
be
binding upon the corporation. Unless otherwise specifically determined by the
Board:
(a)
formal contracts of the corporation, promissory notes, deeds of trust,
mortgages, and other evidences of indebtedness of the corporation, and other
corporate instruments or documents requiring the corporate seal (except for
share certificates issued by the corporation), and share certificates owned
by
the corporation, shall be executed, signed, or endorsed by the President, or
jointly endorsed by the Secretary and Treasurer;
(b)
checks drawn on banks or other depositories on funds to the credit of the
corporation, or in special accounts of the corporation, shall be signed in
such
manner (which may be a facsimile signature) and by such person or persons as
shall be authorized by the Board;
(c)
dividend warrants, drafts, insurance policies, and all other instruments and
documents requiring the corporate signature, but not requiring the corporate
seal, shall be executed or signed in the manner directed by the Board;
and
(d)
share
certificates issued by the corporation shall be signed (which may be a facsimile
signature) jointly by (i) the President or (ii) the Secretary and the
Treasurer.
4.02
RATIFICATION BY SHAREHOLDERS.
The
Board may, in its discretion, submit any contract or act for approval or
ratification by the shareholders at any annual meeting of shareholders or at
any
special meeting of shareholders called for that purpose. Any contract or act
which shall be approved or ratified by the holders of a majority of the voting
power of the corporation represented at such meeting shall be as valid and
binding upon the corporation as though approved or ratified by each and every
shareholder of the corporation, unless a greater vote is required by law for
such purpose.
4.03
VOTING OF SHARES OWNED BY THE CORPORATION.
All
shares of other
corporations
owned or held by the corporation for itself or for other parties in any capacity
shall be voted, and all proxies with respect thereto shall be executed, by
the
person authorized to do so by resolution of the Board or, in the absence of
such
authorization, by the President, the Secretary or the Treasurer.
ARTICLE
V - SHARE CERTIFICATES
5.01
FORM OF CERTIFICATES.
Share
certificates of the corporation shall be
in
such
form and design as the Board shall determine. Each certificate shall state
the
certificate number, the date of issuance, the number, designation, class, and
the name of the record holder of the shares represented thereby, the name of
the
corporation, and if the shares of the corporation are classified or if an class
of shares has two (2) or more series, the legends, if any, required by the
Nevada General Corporation Law.
5.02
TRANSFER OF SHARES.
Shares
may be transferred in any manner permitted or provided by law. Before any
transfer of shares is entered upon the books of the corporation or recognized
by
the designated transfer agent and/or registrar of the corporation, or any new
certificate is issued therefor, the old certificate, properly endorsed, shall.
be surrendered and canceled, except when a certificate has been lost or
destroyed.
5.03
LOST CERTIFICATES.
The
Board may order a new share certificate to be issued in the place of any
certificate alleged to have been lost or destroyed, but in every such case
the
owner of the lost certificate may be required to give the corporation a bond,
with surety, in such form and amount as the Board may determine, as indemnity
against any loss or claim that the corporation may incur by reason of the
issuance of a new certificate.
ARTICLE
VI - INDEMNIFICATION OF CORPORATE AGENTS
The
corporation shall indemnify any and all of its Directors or Officers or former
Directors or Officers or any person who may have served at its request as a
Director or Officer of another corporation in which it owns shares of capital
stock or of which it is a creditor against expenses actually and necessarily
incurred by them in connection with the defense of any action, suit or
proceeding in which they, or any of them, are made parties, or a party, by
reason of being or having been Directors or Officers or a Director of Officer
of
the corporation or of such other corporation, except in relation to matters
as
to which any such Director or Officer or former Director or Officer or person
shall be adjudged in such action, suit or proceeding to be liable for negligence
or misconduct, in the performance of duty. Such indemnification shall not be
deemed exclusive of any other rights to which those indemnified may be entitled,
under By-Law, agreement, vote of shareholders or otherwise.
ARTICLE
VII - AMENDMENTS
7.01
AMENDMENT BY SHAREHOLDERS.
New
bylaws may be adopted or these Bylaws may be amended or repealed by the vote
or
written consent of holders of a majority of the outstanding shares entitled
to
vote, except as otherwise provided by law, these Bylaws, or the Articles of
Incorporation.
7.02
AMENDMENT BY DIRECTORS.
Subject
to the rights of the shareholders as provided in Section 7.01, any bylaw, other
than a bylaw or an amendment of a bylaw changing the authorized number of
directors, may be adopted, amended, or repealed by the Board.
EMPLOYMENT
AGREEMENT
This
Employment Agreement (
“Agreement”
)
is
entered into as of August 3, 2006 (the “
Effective
Date”
),
by and
between Dr. Ted Wong
,
an
individual residing at _____________ (“
Wong
”
or
“
Employee”
),
and
NanoSensors, Inc.
,
a
Nevada
corporation (the “
Company”
).
WHEREAS,
The
Company wishes to employ Wong as Chairman, President and Chief Executive Officer
of the Company, and Wong desires to accept such positions, on the terms and
conditions set forth herein.
NOW,
THEREFORE,
in
consideration of the mutual covenants set forth in this Agreement and other
good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Company and Wong agree as follows:
1.
|
Employment
of Wong:
The Company agrees to employ Wong as the Company’s Chairman, President and
Chief Executive Officer, based in the Company’s office in Santa Clara,
California. Wong accepts such employment and agrees to act as an
employee
of the Company, all in accordance with the terms and conditions of
this
Agreement. Employee shall undertake regular travel to the Company’s and
operational offices, if any, and such other occasional travel within
or
outside the United States as is or may be reasonably necessary in
the
interests of the Company. All such travel shall be at the sole cost
and
expense of the Company and all airplane travel shall be in accordance
with
the Company’s policy for executive
officers.
|
2.1
Term:
This
Agreement shall be effective upon execution by both parties hereto and Wong’s
employment under this Agreement shall commence on the Effective Date and
continue thereafter for a period of thirty six (36) months (the “
Employment
Period
”),
unless sooner terminated as provided for herein. The last day of the Employment
Period may be referred to herein as the “
Expiration
Date
”.
The
Company shall notify Employee in writing of the Company’s intention to continue
Employee’s employment after the Expiration Date no less than 90 days prior to
the Expiration Date.
2.2
Termination:
This
Agreement shall be terminable by either Company or Wong in accordance with
the
following provisions. As used in this Agreement, the phrase “
Termination
Date
”
shall
mean (i) in the case of the Employee’s death, his date of death; (ii) in the
case of the voluntary termination of employment by Employee, the date set forth
in a written notice of termination furnished to the Company by Employee, which
date must be at least 20 days from the date of such notice, (iii) in the case
of
termination of employment on or after the Expiration Date of this Agreement,
the
last day of employment; and (iv) in all other cases, the date specified in
the
notice of termination furnished to the Employee by the Company; provided,
however, if the Employee’s employment is terminated by the Company for any
reason except Cause, the date specified in the Notice of Termination shall
be at
least 20 days from the date the Notice of Termination is given to the Employee,
and provided further that in the case of Disability, the Employee shall not
have
returned to the full-time performance of his duties during such period of at
least 30 days.
(a)
Employee
may terminate this Agreement for any reason upon twenty (20) days’ prior written
notice to the Company;
(b)
The
Company may terminate this Agreement without Cause upon twenty (20) days’ prior
written notice to the Employee;
(c)
The
Company may terminate this Agreement in the event Employee becomes Disabled
(as
defined below) during the Employment Period and the Company provides written
notice of termination and Employee shall not have returned to the full-time
performance of his duties hereunder during a period of at least 30 days;
and
(d)
The
Company may immediately terminate this Agreement for Cause and without notice
(provided, however that the Company provide Employee with notice and an
opportunity to cure as expressly set forth in the definition of the term Cause
below). For the purposes of this Agreement, the term
“Cause”
shall
mean the following:
1)
|
A
violation by Wong of a material term of this Agreement; it being
understood that a violation of any of the covenants contained in
Section 6
of this Agreement shall constitute a violation of a material term
which
shall justify termination of this Agreement if such violation continues
for a period of more than ten (10) days after receipt by Wong of
written
notice from the Company setting forth in reasonable detail the nature
of
the violation;
|
2)
|
Wong’s
commission of fraud, dishonesty and/or similar malfeasance in the
rendering of services to the
Company;
|
3)
|
Wong’s
repeated and intemperate use of alcohol or illegal drugs after written
notice from the Company that such use, if continued, will result
in
termination of Wong’s employment;
|
4)
|
Acts
or misconduct by Wong during his tenure with Company, which are of
a
criminal nature, including Wong’s conviction of a felony involving
personal dishonesty, moral turpitude or willfully violent conduct;
and
|
5)
|
Substantial
refusal to comply or default in complying with the reasonable and
lawful
directions of the Board of Directors of the Company and such refusal,
default or failure continues for a period of more than ten (10) days
after
receipt by Wong of written notice from the Company setting forth
in
reasonable detail the nature of the
problem.
|
2.3
If
the
Employee’s employment with the Company shall be terminated, the Company shall
pay and/or provide to the Employee the following compensation or
benefits:
(a)
In
the
event that this Agreement is terminated by the Company without Cause pursuant
to
Section 2.2(b), Wong shall be paid (i) the Accrued Compensation (as defined
below) and (ii) the Severance Payment (as defined below). As used herein, the
“
Severance
Payment
”
shall
mean the amount equal to six (6) months’ Base Salary (as defined below) in
effect on the Termination Date. Severance Payments shall be made in accordance
with the Company’s regular payment cycle for executive employees.
(b)
If
Wong
dies before the expiration of the Employment Period, the Company shall pay
Wong
the Accrued Compensation (as defined below) and all of the Company’s unvested
obligations under this Agreement shall terminate and be of no further force
or
effect as of the actual date of death.
(c)
If
Wong
becomes Disabled (as defined below) during the Employment Period to the extent
he is unable to perform his duties to the Company, the Company shall pay Wong
the Accrued Compensation and the Severance Payment. The term “
Disability
”
shall
mean that Wong shall be unable for a period of more than four (4) consecutive
months or for periods aggregating more than one hundred and twenty (120) days
weeks in any fifty-two (52) consecutive weeks to perform the services to the
Company specified herein as a result of illness, incapacity or a phyisical
or
other disability of any nature.
(d)
If
Wong
(i) voluntarily terminates this Agreement, or (ii) is discharged for Cause,
the
Company shall pay Wong the Accrued Compensation only and Wong shall not be
entitled to any Severance Payments or other unvested compensation, and the
Company shall be relieved of any further obligation to Wong.
(e)
In
the
event the Company fails to notify the Employee of its intention to continue
Employee’s employment within the period prescribed in Section 2.1 or notifies
Employee that it has determined not to continue Employee’s employment,
Employee’s employment shall terminate on the Expiration Date and Company shall
pay the Employee the Accrued Compensation and the Severance Payment. If the
Company notifies Employee that it wishes to continue Employee’s employment but
fails to reach an agreement on a new employment agreement prior to the
Expiration Date, this Agreement shall be deemed to be extended on the same
terms
and conditions except that such employment shall be an at-will basis, subject
to
the right of the Company and the Employee to terminate this Agreement in
accordance with Sections 2.2 and 2.3.
(f)
The
payment of the Severance Payments specified above is conditioned upon Employee’s
signing and returning a general release of claims against the Company in a
form
satisfactory to the Company, and not withdrawing said release of claims within
the period specified therein. In addition, such Severance Payments will be
in
lieu of any entitlement you may have to notice of termination, pay in lieu
of
notice of termination, or any other severance payment or benefit from any other
source.
2.4
Accrued
Compensation.
“
Accrued
Compensation
”
shall
mean an amount which shall include all amounts earned or accrued through the
Termination Date but not paid as of the Termination Date, including (i) Base
Salary, (ii) unpaid bonuses and incentive compensation earned and awarded prior
to the Termination Date, (iii) reimbursement for business expenses incurred
by
the Employee on behalf of the Company, pursuant to the Company's expense
reimbursement policy in effect at such time, and (iv) vacation pay per Company
policy. Accrued Compensation shall be paid on the first regular pay date after
the termination date (or earlier, if required by applicable law).
2.5
No
Mitigation.
The
Employee shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise and no such
payment shall be offset or reduced by the amount of any compensation or benefits
provided to the Employee in any subsequent employment.
2.6
Non-Disparagement.
For a
period of three years following the expiration or termination of this Agreement,
Employee agrees that he will not make any negative or derogatory statements
in
verbal, written, electronic or any other form about the Company, including,
but
not limited to, a negative or derogatory statement made in, or in connection
with, any article or book, on a website, in a chat room or via the internet
except where such statement is required by law or regulation. During such three
year period, none of the Company’s executive officers and directors shall make
any negative or derogatory statements in verbal, written, electronic or any
other form about the Employee, including, but not limited to, a negative or
derogatory statement made in, or in connection with, any article or book, on
a
website, in a chat room or via the internet except where such statement is
required by law or regulation
3.1
General
Duties:
During
the Employment Period, Wong shall perform the duties of an executive nature,
as
well as such other duties as the Company’s Board of Directors (the “
Board
”)
may
prescribe from time to time. Wong shall report directly to the Board of
Directors of the Company. During the Employment Period and subject to the
direction of the Board, Employee shall perform such executive duties and
functions and discharge such responsibilities as are reasonably associated
with
his executive position or as may be reasonably assigned or delegated to him
from
time to time by the Board, consistent with his position as President and Chief
Executive Officer. In general, Employee shall have management authority with
respect to, and responsibility for, the overall operations and day-to-day
business and affairs of the Company and all major operating units and executives
of the Company shall report, either directly or indirectly (through other
executives of the Company or its subsidiaries who report directly to the
Employee) to the Employee. The Company shall nominate, and use its best efforts
to have elected, the Employee to the Board throughout the term of this
Agreement. The Employee agrees to resign from the Board upon the termination
of
employment for any reason. The Company understands that Wong may serve on the
board of directors and advisory boards of other companies provided (a) such
other company is not engaged in a business which is competitive with the
business now conducted by the Company or then conducted by the Company or (b)
such activities do not materially interfere with his duties
hereunder.
3.2
Devotion
to Company:
Wong
shall devote his full time and use his best efforts to the business of the
Company during the Employment Period.
4.1
The
Company’s Board of Directors has determined that it is appropriate to reinforce
and encourage the continued attention and dedication of members of the Company's
management, including the Employee, to their assigned duties without distraction
in potentially disturbing circumstances arising from the possibility of a change
in control of the Company.
4.2
In
the
event that within one hundred and eighty (180) days of a Change in Control
(as
defined below) (i) Employee is terminated, or (ii) (A) Employee’s status, title,
position or responsibilities are materially reduced; (B) Employee’s compensation
is materially diminished as compared to the compensation payable prior to the
Change in Control; (C) Employee is required to undertake substantial new
business-related travel due to the Change in Control; or (D) the Company
relocates the location of its offices such that Employee would be reasonably
expected to move his primary residence and (iii) Employee terminates his
Employment, the Company shall pay and/or provide to the Employee, the following
compensation and benefits:
(a)
The
Company shall pay the Employee, in lieu of any other payments due hereunder,
(i)
the Accrued Compensation and (ii) the Severance Payment; and
(b)
The
conditions to the vesting of any outstanding stock options or other incentive
awards (including restricted stock, stock options and granted performance shares
or units (collectively, the “
Awards
”)
granted to the Employee under any of the Company’s benefit plans, or under any
other incentive plan or arrangement, shall be deemed void and all such Awards
shall be immediately and fully vested and exercisable and such Awards shall
be
deemed amended to provide that the Awards shall remain exercisable for the
duration of their original term.
4.3
“
Change
in Control
”
shall
mean any of the following events:
(a)
(i)
An
acquisition (other than directly from the Company) of any voting securities
of
the Company (the “
Voting
Securities
”)
by any
“
Person
”
(as
the
term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the “
1934
Act
”))
immediately after which such Person has “
Beneficial
Ownership
”
(within
the meaning of Rule 13d-3 promulgated under the 1934 Act) of thirty five percent
(35%) or more of the combined voting power of the Company’s then outstanding
Voting Securities; provided, however, that in determining whether a Change
in
Control has occurred, Voting Securities which are acquired in a “Non-Control
Acquisition” (as defined below) shall not constitute an acquisition which would
cause a Change in Control. A “
Non-Control
Acquisition
”
shall
mean an acquisition by (1) an employee benefit plan (or a trust forming a part
thereof) maintained by (x) the Company or (y) any corporation or other Person
of
which a majority of its voting power or its equity securities or equity interest
is owned directly or indirectly by the Company (a “
Subsidiary
”),
or
(2) the Company or any Subsidiary.
(ii)
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because a Person (the “
Subject
Person
”)
gained
Beneficial Ownership of more than the permitted amount of the outstanding Voting
Securities as a result of the acquisition of Voting Securities by the Company
which, by reducing the number of Voting Securities outstanding, increases the
proportional number of shares Beneficially Owned by the Subject Person, provided
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Voting Securities by the Company, and after
such share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional Voting Securities which increases the percentage of
the
then outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
(b)
The
individuals who, as of the date this Agreement are approved by the Board,
are members of the Board (the “
Incumbent
Board
”),
cease
for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Company’s
shareholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered and defined as a member of the Incumbent Board; and provided,
further, that no individual shall be considered a member of the Incumbent Board
if such individual initially assumed office as a result of either an actual
“
Election
Contest
”
(as
described in Rule 14a-11 promulgated under the 1934 Act) or other solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
“
Proxy
Contest
”);
or
(c)
Approval
by stockholders of the Company of: (i) A merger, consolidation or reorganization
involving the Company, unless: (1) the shareholders of the Company, immediately
before such merger, consolidation or reorganization, own, directly or indirectly
immediately following such merger, consolidation or reorganization, at least
sixty percent (60%) of the combined voting power of the outstanding voting
securities of the corporation resulting from such merger or consolidation or
reorganization (the “
Surviving
Corporation
”)
in
substantially the same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization, (2) the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, and (3) no Person (other than the
Company, any Subsidiary, any employee benefit plan (or any trust forming a
part
thereof) maintained by the Company, the Surviving Corporation or any Subsidiary)
becomes Beneficial Owner of twenty percent (20%) or more of the combined voting
power of the Surviving Corporation’s then outstanding voting securities as a
result of such merger, consolidation or reorganization, a transaction described
in clauses (1) through (3) shall herein be referred to as a “
Non-Control
Transaction
”;
or
(ii)
An
agreement for the sale or other disposition of all or substantially all of
the
assets of the Company, to any Person, other than a transfer to a Subsidiary,
in
one transaction or a series of related transactions; or
(iii)
The
shareholders of the Company approve any plan or proposal for the liquidation
or
dissolution of the Company.
(d)
Notwithstanding
anything contained in this Agreement to the contrary, if the Employee’s
employment is terminated prior to a Change in Control and the Employee
reasonably demonstrates that such termination (i) was at the request of a third
party who has indicated an intention or taken steps reasonably calculated to
effect a Change in Control (a “Third Party”) or (ii) otherwise occurred in
connection with, or in anticipation of, a Change in Control, then for all
purposes of this Agreement, the date of a Change in Control with respect to
the
Employee shall mean the date immediately prior to the date of such termination
of the Employee’s employment.
5.1
Base
Salary:
As
full
compensation for all services provided for herein, the Company shall pay, or
caused to be paid to Wong, and Wong shall accept, a base salary during the
Employment Period of not less than ONE HUNDRED AND FORTY-FOUR THOUSAND DOLLARS
AND 00/100 ($144,000) per year, as may be increased from time to time in the
sole discretion of the Board (the “
Base
Salary
”).
The
Base Salary shall be paid in regular installments in accordance with the
Company’s usual pay dates for executives, but not less frequently than monthly.
Employee may receive such other additional compensation as may be determined
from time to time by the Board including bonuses and other long term
compensation plans. Except as expressly set forth herein, nothing in this
paragraph shall be deemed or construed to require the Board to award any bonus
or additional compensation.
5.2
Bonus
Options, Signing Bonus and Milestones Bonuses:
Subject
to the approval of the Company’s shareholders of an appropriate equity-based
incentive compensation plan (“Shareholder Approval”), upon the execution of this
Agreement, the Company shall grant Wong an option to purchase up to Five Million
(5,000,000) shares of the common stock of the Company (“
Bonus
Options
”).
Subject to the Shareholder Approval, the Bonus Options shall be fully
exercisable and vested upon the six month anniversary of the Effective Date.
The
exercise price of the Bonus Options will be equal to the fair market value
of
the Company’s common stock as reported on the Over the Counter Bulletin Board on
the date this Agreement is executed by both parties. In addition, Wong will
receive a signing bonus of FOURTY THOUSAND DOLLARS AND 00/100 ($40,000) of
which
Wong acknowledges that $20,000 has been paid by the Company prior to the date
hereof. Further, in the event that Employee achieves the milestones listed
in
Exhibit
A
during
the inital Employment Period,
Wong
will
receive a performance bonus of TWELVE THOUSAND FIVE HUNDRED DOLLARS 00/100
($12,500) per event. Wong acknowledges that the Company’s payment of the
“signing bonus” is for his cancellation of all accrued compensation owed by the
Company to Wong prior to the Effective Date of this Agreement.
5.3
Benefits:
During
the Employment Period, Wong will be entitled to participate in the Company's
fringe benefit programs presently offered for senior management, or which may
hereafter, during the Employment Period, be offered to its senior management
and/or non-executive employees on a company wide basis (including group life
insurance, group disability insurance, group medical and hospitalization plans,
pension and profit sharing plans), subject to any eligibility requirements.
All
such fringe benefit programs shall be determined, and periodically modified,
at
the sole discretion of the Board.
5.4
Withholding:
All
compensation payable to Wong under this Agreement is stated in gross amounts
and
will be subject to all applicable withholding taxes, other normal payroll
deductions, and any other amounts required by law to be withheld.
5.5
Vacation:
Wong
will be entitled to take 15 vacation days per annum in accordance with current
Company vacation policy for senior management, as well as to take standard
Company holidays.
5.6
Expenses:
The
Company, in accordance with its policies, shall pay or reimburse Wong for all
reasonable and customary expenses (including travel and entertainment expenses)
incurred by Wong during the Employment Period in connection with the performance
of Wong's duties under this Agreement; provided that Wong shall provide the
Company with an itemized account of such expenditures together with such
vouchers and other receipts as the Company may request, in accordance with
Company policy and Internal Revenue Service regulations.
5.7
Retirement
Plan:
Wong
will be eligbile to join the Company’s retirement plan, if any, as defined
within the Company’s policies, subject to any eligibility
requirements.
5.8
Earned
Options:
Subject
to the Shareholder Approval, the Company hereby grants to Wong options to
purchase Thirteen Million (13,000,000) shares of the Company's common stock
(“
Earned
Options
”).
Subject to the Shareholder Approval, commencing on the six month anniverary
of
the Effective Date, the Earned Options shall vest in installments of Four
Hundred Thirty Three Thousand Three Hundred Thirty Three (433,333) shares and
thereafter on the first day of each month of the balance of the Employment
Period provided Employee continues to perform services to Company under this
Agreement (each installment may be referred to as an “Option Installment”). The
exercise price of the Earned Options will be equal to the fair market value
of
the Company’s common stock as reported on the Over the Counter Bulletin Board on
the date that this Agreement is executed by both parties. The Earned Options
shall be exercisable for a period of ten years from the date of grant.
5.9
Termination
of Options.
In
the
event of the termination of Employee’s employment by the Company without Cause
prior to the Expiration Date, notwithstanding anything herein or in any stock
option agreement to the contrary, (a) the Employee’s right to purchase shares of
Common Stock of the Company pursuant to any stock option or stock option plan
shall immediately fully vest and become exercisable, (b) the exercise period
in
which Employee may exercise his options to purchase Company common stock shall
be extended to the duration of their original term, as if Employee remained
an
employee of the Company, and the terms of such options shall be deemed amended
to take into account the foregoing provisions. For purposes of clarity, Employee
and Company agree that the occurrence of a Change in Control shall not affect
the provisions of this Section.
In
the
event of a termination of Employee’s employment with the Company for Cause,
options granted and not exercised as of the Termination Date shall terminate
immediately and be null and void. In the event of a termination of Employee’s
employment with the Company due to the Employee’s death, or Disability, the
Employee’s (or his estate’s or legal representative’s) right to purchase shares
of Common Stock of the Company pursuant to any stock option or stock option
plan
to the extent vested as of the Termination Date shall remain exercisable for
a
period of twelve (12) months following the Termination Date, but in no event
after the expiration of the exercise period. In the event of the voluntary
termination of Employee’s employment with the Company by the Employee (other
than in connection with a Change in Control) or the termination of the
Employee’s employment on or after the Expiration Date, the Employee’s right to
purchase shares of Common Stock of the Company pursuant to any stock option
or
stock option plan to the extent vested as of the Termination Date shall remain
exercisable for a period of three months following the Termination Date, but
in
no event after the expiration of the exercise period. Notwithstanding the
foregoing, in the event of a Change in Control (as defined above), and the
Employee’s employment is terminated or Employee elects to terminate his
employment (subject to Section 4 of this Agreement), the Options granted
hereunder shall become immediately vested and exercisable in accordance with
Section 4 of this Agreement and any provisions of the Company’s equity
compensation plan pursuant to which the Options are granted.
6.
|
Restrictive
Covenants:
Wong agrees that his work for the Company will bring him into close
contact with customers of the Company and with many confidential
affairs
of the Company not readily available to the public, and which the
Employee
acknowledges that the Company considers to be trade secrets. Wong
further
agrees that the technology market is highly competitive and worldwide
in
scope. In order to protect the confidential or proprietary information
and
trade secrets of the Company, its customers, and third parties with
which
the Company has entered into confidential agreements, and in consideration
of employment and continued employment, the right to receive income
and
benefits therefore as set forth in this Agreement, the Company’s granting
Wong access to such confidential or proprietary information and trade
secrets, as well as allowing Wong wide access to become familiar
with the
Company's business and operations and for other good and valuable
consideration, Wong agrees as follows:
|
6.1
Confidential
and Proprietary Rights:
Wong
agrees that he will not at any time during his employment or after the
termination of his employment with the Company directly or indirectly disclose
to any person, firm, corporation, partnership, or other entity whatsoever
(except the Company), or use, modify or adapt any trade secret or other
confidential or proprietary information of the Company, including without
limitation, information concerning the Company’s business, technology, finances,
marketing, computerized payroll, accounting and information business, personnel
and/or employee leasing business of the Company and its subsidiaries,
information relating to any customer of the Company, or any other nonpublic
business information of the Company and/or its subsidiaries learned as a
consequence of Employee’s employment with the Company or to which he has access,
(collectively referred to as the “
Proprietary
Information
”)
except
for information available publicly or from other non-confidential sources or
to
the extent it is otherwise required to be disclosed by law or any legal process.
Such Proprietary Information includes, without limitation (a) information not
generally known to the public and proprietary to the Company, (b) information
which Wong has a reasonable basis to believe is confidential or proprietary
information or trade secrets of the Company, or (c) information which Wong
has a
reasonable basis to believe the Company treats as confidential or proprietary
information or trade secrets. In addition, the prohibition on disclosing such
confidential information shall not include that which Wong must disclose to
the
Company’s lawyers, accountants and other professionals that require disclosure
of such information in order to perform the services for which they are engaged
in the course of Wong’s role as President of the Company and which persons will
hold such information in substantial compliance with this Section. The
provisions of this Section 6 shall apply with equal force to any confidential
information of any third party with respect to which the Company has signed
a
confidentiality agreement. The Employee acknowledges that Proprietary
Information, as it may exist from time to time, is a valuable and unique asset
of the Company, and that disclosure of any such information would cause
substantial injury to the Company. If Employee is requested or required (by
oral
questions, interrogatories, requests for information or document subpoenas,
civil investigative demands, or similar process) to disclose any Proprietary
Information, Employee shall, unless prohibited by law, promptly notify the
Company of such request(s) so that the Company may seek an appropriate
protective order.
6.2
Assignment
of Inventions.
Except
as
otherwise may be agreed by the Company in writing, in consideration of the
employment of Employee by the Company, and free of any additional obligations
of
the Company to make additional payment to Employee, Employee agrees to
irrevocably assign to the Company any and all inventions, software, manuscripts,
documentation, improvements or other intellectual property whether or not
protectable by any state or federal laws relating to the protection of
intellectual property, relating to the present or future business of the Company
that are developed by Employee during the term of his/her employment with the
Company, either alone or jointly with others, and whether or not developed
during normal business hours or arising within the scope of his/her duties
of
employment. Employee agrees that all such inventions, software, manuscripts,
documentation, improvement or other intellectual property shall be and remain
the sole and exclusive property of the Company and shall be deemed the product
of work for hire. Employee hereby agrees to execute such assignments and other
documents as the Company may consider appropriate to vest all right, title
and
interest therein to the Company and hereby appoints the Company as the
Employee’s attorney-in-fact with full powers to execute such document itself in
the event employee fails or is unable to provide the Company with such signed
documents. Notwithstanding the foregoing, this provision does not apply to
an
invention for which no equipment, supplies, facility, or trade secret
information of the Company was used and which was developed entirely on
Employee’s own time, unless (a) the invention relates (i) to the business of the
Company, or (ii) to the Company's actual or demonstrably anticipated research
or
development, or (b) the invention results from any work performed by Employee
for the Company.
6.3
Non-Competition
and Non-Solicitation:
In the
event of any termination of Employee’s employment with the Company at any time,
Employee agrees that he will not, for a period of one (1) year following such
termination, directly or indirectly, enter into or become associated with or
engage in any other business (whether as a partner, officer, director,
shareholder, employee, consultant, or otherwise),
which
business is primarily involved in the manufacture, development and/or
distribution of sensors or is otherwise engaged in the same or similar business
as the Company in direct competition with the Company, or which the Company
was
in the process of developing during the term of Employee’s employment with the
Company and such development is based on actual or demonstrative anticipated
research (collectively, a “
Competitive
Business
”).
Notwithstanding the foregoing, (x) the ownership by Employee of less than five
percent of the shares of any publicly held corporation shall not violate the
provisions of this paragraph, and (y) the Employee shall not be required to
comply with any provision of this paragraph following termination of this
Agreement if the amounts that are required to be paid to Employee after such
termination are not timely paid. In furtherance of the foregoing, Employee
shall
not during the aforesaid period of non-competition, directly or indirectly,
in
connection with any Competitive Business, solicit any customer or employee
of
the Company who was a customer or employee of the Company within one year of
the
Termination Date.
6.4
Return
of Documents and Property:
Upon
termination of employment or sooner if requested by the Company, Wong shall
forthwith either destroy or deliver to the Company all copies and original
documents and any other material and property of the Company of any kind
acquired or coming to the knowledge or possession of Wong in connection with
or
as a result of Wong’s employment and that relate in any way to the business of
the Company, including without limitation, and in any medium, literature, data,
plans, designs, specifications, price information, customer information,
supplier information, marketing information, business plans, financial
information, memorandums, correspondence, notes and records.
7.
|
Remedies:
Wong
agrees that a violation of the covenants set forth in Sections 6.1
through
6.4, or any provision thereof, could cause irreparable injury to
the
Company and that, in addition to other remedies available to the
Company,
the Company shall be entitled to injunctive or other equitable relief
in
case of any such violation or threatened violation. The remedies
set forth
in this Section 7 shall be in addition to, rather than in lieu of,
any
other rights and remedies the Company may have at law or in equity.
|
8.
|
Indemnity.
The Company hereby agrees to indemnify, defend, and hold harmless
the
Employee for any and all claims arising from or related to his
employment
by the Company at any time asserted, at any place asserted, to
the fullest
extent permitted by law. The Company shall use commercially reasonable
efforts to maintain such insurance as is necessary and reasonable
(with
minimum coverage of not less than $2,000,000) to protect the Employee
from
any and all claims arising from or in connection with his employment
by
the Company during the term of Employee's employment with the Company
and
for a period of six (6) years after the date of termination of
employment
for any reason. The provisions of this Section are in addition
to and not
in lieu of any indemnification, defense or other benefit to which
Employee
may be entitled by statute, regulation, common law or otherwise.
Any other
provision herein to the contrary notwithstanding, the Company shall
not be
obligated pursuant to the terms of this Agreement:
|
(a)
Claims
Initiated by Employee
.
To
indemnify or advance expenses to the Employee with respect to proceedings or
claims initiated or brought voluntarily by the Employee and not by way of
defense, except with respect to proceedings brought to establish or enforce
a
right to indemnification under this Agreement or any other statute or law or
otherwise, but such indemnification or advancement of expenses may be provided
by the Company in specific cases if the Board of Directors finds it to be
appropriate; or
(b)
Lack
of Good Faith
.
To
indemnify the Employee for any expenses incurred by the Employee with respect
to
any proceeding instituted by the Employee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the
material assertions made by the Employee in such proceeding was not made in
good
faith or was frivolous; or
(c)
Unauthorized
Settlements
.
To
indemnify the Employee under this Agreement for any amounts paid in settlement
of a proceeding unless the Company consents to such settlement; or
(d)
Claims
by the Company for Willful Misconduct
.
To
advance expenses to the Employee under this Agreement for any expenses incurred
by the Employee with respect to any proceeding or claim brought by the Company
against Employee for willful misconduct, unless a court of competent
jurisdiction determines that each of such claims was not made in good faith
or
was frivolous; or
(e)
16(b)
Actions
.
To
indemnify the Employee on account of any suit in which judgment is rendered
against Employee for an accounting of profits made from the purchase or sale
by
Employee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities and Exchange Act of l934 and amendments thereto or
similar provisions of any federal state or local statutory law; or
(f)
Willful
Misconduct or Breach
.
To
indemnify the Employee on account of Employee’s conduct which is finally
adjudged to have been knowingly fraudulent, deliberately dishonest, or to
constitute willful misconduct or as constituting a breach of Employee’s duty of
loyalty to the Company or resulting in any personal profit or advantage to
which
Agent was not legally entitled; or
(g)
Unlawful
Indemnification
.
To
indemnify the Employee if a final decision by a court having jurisdiction in
the
matter shall determine that such indemnification is not lawful (and, in this
respect, both the Company and Employee have been advised that the Securities
and
Exchange Commission believes that indemnification for liabilities arising under
the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication).
9.
|
Survival:
The
provisions of Sections 6 and 7 shall survive the termination of this
Agreement for any reason, for the duration specified
therein.
|
10.
|
Revision:
If
any provisions of this Agreement as applied to any circumstances
shall be
adjudged by an arbitrator or a court of competent jurisdiction to
be
invalid or unenforceable, the same shall in no way affect any other
provision in any other circumstances, or the validity or enforceability
of
this Agreement. The Company and Wong intend this Agreement and the
provisions of Sections 6 and 7 to be enforced as written.
|
11.
|
Severability:
However, if any provision, or any part thereof, is held to be
unenforceable because of its scope or the duration of such provision
or
the area covered thereby, the Company and Wong agree that the court
or
arbitrator making such determination shall have the power to reduce
the
scope, duration and/or area of such provision, and/or to delete specific
words or phrases and in its reduced form such provision shall then
be
enforceable and shall be enforced.
|
12.
|
Entire
Agreement:
This Agreement embodies the entire understanding between the Company
and
Wong, and supersedes all prior understandings and discussions, whether
oral or written. It may not be changed orally, but only by an amendment
in
writing signed by both parties.
|
13.
|
Waiver:
The waiver by the Company of a breach of any provision of this Agreement
by Wong shall not operate or be construed as a waiver of any subsequent
breach by Wong. The waiver by Wong of a breach of any provision of
this
Agreement by the Company shall not operate or be construed as a waiver
of
any subsequent breach by the
Company.
|
14.
|
Governing
Law; Jurisdiction:
This Agreement shall be construed under and governed by the laws
of the
State of California, United States of America, without regard to
conflict
of laws principles. Any or all actions or proceedings which may be
brought
by the Company or Employee under this Agreement shall be brought
in courts
having a situs within the State of California, and Employee and the
Company each hereby consent to the jurisdiction of any local, state,
or
federal court located within the State of
California.
|
15.
|
Binding
Effect; Non-Assignment:
This Agreement and the rights and obligations of the Company hereunder
shall inure to the benefit of and shall be binding upon the Company
and
any companies or other entities controlling, controlled by, or under
common control with the Company, and upon successors and assigns
of any
such company. Neither this Agreement nor any of Wong’s rights or
obligations the Company or shall be transferable or assignable by
Wong or
any person claiming any such benefit through him, but they shall
inure to
the benefit of and shall be binding upon his executors, administrators,
personal representatives, heirs, and
legatees.
|
16.
|
Dispute
Resolution:
The
parties hereby submit to the jurisdiction of, and waive any venue
objections against, the United States District Court for the Northern
District of California and the Superior and Municipal Courts of the
State
of California, Santa Clara County, in any litigation arising out
of the
Agreement. The Company may, however, institute a binding arbitration
proceeding pursuant to the commercial arbitration rules of the American
Arbitration Association then existing relating to any controversy
or claim
arising from or relating to this Agreement, or its making, performance,
or
interpretation and judgment on any such arbitration award shall be
final,
binding and conclusive on all parties and may be entered in any court
having jurisdiction over the subject matter of the
controversy.
|
17.
|
Notices.
For
the purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed
to
have been duly given when (a) personally delivered or (b) sent by
(i) a
nationally recognized overnight courier service or (ii) certified
mail,
return receipt requested, postage prepaid and in each case addressed
to
the respective addresses as set forth below or to any such other
address
as the party to receive the notice shall advise by due notice given
in
accordance with this paragraph. All notices and communications shall
be
deemed to have been received on (A) if delivered by personal service,
the
date of delivery thereof; (B) if delivered by a nationally recognized
overnight courier service, on the first business day following deposit
with such courier service; or (C) on the third business day after
the
mailing thereof via certified mail. Notwithstanding the foregoing,
any
notice of change of address shall be effective only upon receipt.
The
current addresses of the parties are as follows:
|
If
to the Company:
|
NanoSensors,
Inc.
|
|
1800
Wyatt Dr., Suite # 2
|
|
Santa
Clara, CA 95054
|
|
|
If
to Employee:
|
To
the place set forth on page 1 of this Agreement.
|
|
|
18.
|
Counterparts:
This Agreement may be executed by facsimile transmission in one or
more
counterparts, each of which shall be deemed an original and which
together
shall constitute one
instrument.
|
19.
|
Material
Actions:
If
the Company becomes a party to any material action or proceeding
during
the term of this Agreement, the Company agrees to notify Wong on
a timely
basis of any material action or
proceeding.
|
20.
|
Separate
Counsel:
Wong has been advised and encouraged by the Company to consult
with an
attorney of his
choosing.
|
Remainder
of page intentionally left blank. Signature page follows.
Signature
Page to Employment Agreement
between
NanoSensors, Inc. And Ted Wong
IN
WITNESS WHEREOF
,
the
Company has caused this Agreement to be executed by its duly authorized officer
and Wong has hereunto set his hand, all as of the day and year first above
written.
NanoSensors,
Inc.
|
|
Ted Wong
|
|
|
|
|
|
|
|
|
By:
|
/s/
Robert
Baron
|
|
/s/ Ted
Wong
|
|
Robert
Baron,
|
|
Ted
Wong
|
|
On
behalf of the
Company
|
|
|
Exhibit
A
Four
Major Milestones for Ted Wong
·
|
Obtain
technology license agreement from Michigan State University for the
commercialization of the intellectual property created to test for
E. coli
and salmonella using a nanoporous silicon-based electrochemical DNA
biosensor.
|
·
|
Completion
of a working prototypes for the Company’s first product and produce 5
pre-production (the version of the product prior to the final
manufacturing design) prototypes that can be field tested by the
Company’s
customer(s).
|
·
|
Release
of all funds held in escrow in connection with Company’s private placement
of units which closed June 27,
2006.
|
·
|
Receipt
of $100,000 in cumulative orders for the Company’s product.
|
EMPLOYMENT
AGREEMENT
This
Employment Agreement (
“Agreement”
)
is
entered into as of August 3, 2006 (the “
Effective
Date”
),
by and
between Joshua Moser
,
an
individual residing at __________________ (“
Moser
”
or
“
Employee”
),
and
NanoSensors, Inc.
,
a
Nevada
corporation (the “
Company”
).
WHEREAS,
The
Company wishes to employ Moser as Vice President and Chief Operating Officer
of
the Company, and Moser desires to accept such positions, on the terms and
conditions set forth herein.
NOW,
THEREFORE,
in
consideration of the mutual covenants set forth in this Agreement and other
good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Company and Moser agree as follows:
1.
|
Employment
of Moser:
The Company agrees to employ Moser as the Company’s Vice President and
Chief Operating Officer, based in the Company’s office in Santa Clara,
California. Moser accepts such employment and agrees to act as an
employee
of the Company, all in accordance with the terms and conditions of
this
Agreement. Employee shall undertake regular travel to the Company’s and
operational offices, if any, and such other occasional travel within
or
outside the United States as is or may be reasonably necessary in
the
interests of the Company. All such travel shall be at the sole cost
and
expense of the Company and all airplane travel shall be in accordance
with
the Company’s policy for executive
officers.
|
2.1
Term:
This
Agreement shall be effective upon execution by both parties hereto and Moser’s
employment under this Agreement shall commence on the Effective Date, and
continue thereafter for a period of thirty-six (36) months (the “
Employment
Period
”),
unless sooner terminated as provided for herein. The last day of the Employment
Period may be referred to herein as the “
Expiration
Date
”.The
Employment Period shall not be extended, except by written agreement executed
by
the parties. The Company shall notify Employee in writing of the Company’s
intention to continue Employee’s employment after the Expiration Date no less
than 90 days prior to the Expiration Date.
2.2
Termination:
This
Agreement shall be terminable by either Company or Moser in accordance with
the
following provisions. As used in this Agreement, the phrase “
Termination
Date
”
shall
mean (i) in the case of the Employee’s death his date of death; (ii) in the case
of the voluntary termination of employment by Employee, the date set forth
in a
written notice of termination furnished to the Company by Employee, which date
must be at least 20 days from the date of such notice, (iii) in the case of
termination of employment on or after the Expiration Date of this Agreement,
the
last day of employment; and (iv) in all other cases, the date specified in
the
notice of termination furnished to the Employee by the Company; provided,
however, if the Employee’s employment is terminated by the Company for any
reason except Cause, the date specified in the Notice of Termination shall
be at
least 20 days from the date the Notice of Termination is given to the Employee,
and provided further that in the case of Disability, the Employee shall not
have
returned to the full-time performance of his duties during such period of at
least 30 days.
(a)
Employee
may terminate this Agreement for any reason upon twenty (20) days’ prior written
notice to the Company;
(b)
The
Company may terminate this Agreement without Cause upon twenty (20) days’ prior
written notice to the Employee;
(c)
The
Company may terminate this Agreement in the event Employee becomes Disabled
(as
defined below) during the Employment Period and the Company provides written
notice of termination and Employee shall not have returned to the full-time
performance of his duties hereunder during a period of at least 30 days;
and
(d)
The
Company may immediately terminate this Agreement for Cause and without notice
(provided, however that the Company provide Employee with notice and an
opportunity to cure as expressly set forth in the definition of the term Cause
below). For the purposes of this Agreement, the term
“Cause”
shall
mean the following:
1)
|
A
violation by Moser of a material term of this Agreement; it being
understood that a violation of any of the covenants contained in
Section 6
of this Agreement shall constitute a violation of a material term
which
shall justify termination of this Agreement if such violation continues
for a period of more than ten (10) days after receipt by Moser of
written
notice from the Company setting forth in reasonable detail the nature
of
the violation;
|
2)
|
Moser’s
commission of fraud, dishonesty and/or similar malfeasance in the
rendering of services to the
Company;
|
3)
|
Moser’s
repeated and intemperate use of alcohol or illegal drugs after written
notice from the Company that such use, if continued, will result
in
termination of Moser’s employment;
|
4)
|
Acts
or misconduct by Moser during his tenure with Company, which are
of a
criminal nature, including Moser’s conviction of a felony involving
personal dishonesty, moral turpitude or willfully violent conduct;
and
|
5)
|
Substantial
refusal to comply or default in complying with the reasonable and
lawful
directions of the Board of Directors of the Company and such refusal,
default or failure continues for a period of more than ten (10) days
after
receipt by Moser of written notice from the Company setting forth
in
reasonable detail the nature of the
problem.
|
2.3
If
the
Employee’s employment with the Company shall be terminated, the Company shall
pay and/or provide to the Employee the following compensation or
benefits:
(a)
In
the
event that this Agreement is terminated by the Company without Cause pursuant
to
Section 2.2(b), Moser shall be paid (i) the Accrued Compensation (as defined
below) and (ii) the Severance Payment (as defined below). As used herein, the
“
Severance
Payment
”
shall
mean the amount equal to six (6) months’ Base Salary (as defined below) in
effect on the Termination Date. Severance Payments shall be made in accordance
with the Company’s regular payment cycle for executive employees.
(b)
If
Moser
dies before the expiration of the Employment Period, the Company shall pay
Moser
the Accrued Compensation (as defined below) and all of the Company’s unvested
obligations under this Agreement shall terminate and be of no further force
or
effect as of the actual date of death.
(c)
If
Moser
becomes Disabled (as defined below) during the Employment Period to the extent
he is unable to perform his duties to the Company, the Company shall pay Moser
the Accrued Compensation and the Severance Payment. The term “
Disability
”
shall
mean that Moser shall be unable for a period of more than four (4) consecutive
months or for periods aggregating more than one hundred and twenty (120) days
weeks in any fifty-two (52) consecutive weeks to perform the services to the
Company specified herein as a result of illness, incapacity or a phyisical
or
other disability of any nature.
(d)
If
Moser
(i) voluntarily terminates this Agreement, or (ii) is discharged for Cause,
the
Company shall pay Moser the Accrued Compensation only and Moser shall not be
entitled to any Severance Payments or other unvested compensation, and the
Company shall be relieved of any further obligation to Moser.
(e)
In
the
event the Company fails to notify the Employee of its intention to continue
Employee’s employment within the period prescribed in Section 2.1 or notifies
Employee that it has determined not to continue Employee’s employment,
Employee’s employment shall terminate on the Expiration Date and Company shall
pay the Employee the Accrued Compensation and the Severance Payment. If the
Company notifies Employee that it wishes to continue Employee’s employment but
fails to reach an agreement on a new employment agreement prior to the
Expiration Date, this Agreement shall be deemed to be extended on the same
terms
and conditions except that such employment shall be an at-will basis, subject
to
the right of the Company and the Employee to terminate this Agreement in
accordance with Sections 2.2 and 2.3.
(f)
The
payment of the Severance Payments specified above is conditioned upon Employee’s
signing and returning a general release of claims against the Company in a
form
satisfactory to the Company, and not withdrawing said release of claims within
the period specified therein. In addition, such Severance Payments will be
in
lieu of any entitlement you may have to notice of termination, pay in lieu
of
notice of termination, or any other severance payment or benefit from any other
source.
2.4
Accrued
Compensation.
“
Accrued
Compensation
”
shall
mean an amount which shall include all amounts earned or accrued through the
Termination Date but not paid as of the Termination Date, including (i) Base
Salary, (ii) unpaid bonuses and incentive compensation earned and awarded prior
to the Termination Date, (iii) reimbursement for business expenses incurred by
the Employee on behalf of the Company, pursuant to the Company's expense
reimbursement policy in effect at such time, and (iv) vacation pay per Company
policy. Accrued Compensation shall be paid on the first regular pay date after
the termination date (or earlier, if required by applicable law).
2.5
No
Mitigation.
The
Employee shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise and no such
payment shall be offset or reduced by the amount of any compensation or benefits
provided to the Employee in any subsequent employment.
2.6
Non-Disparagement.
For a
period of three years following the expiration or termination of this Agreement,
Employee agrees that he will not make any negative or derogatory statements
in
verbal, written, electronic or any other form about the Company, including,
but
not limited to, a negative or derogatory statement made in, or in connection
with, any article or book, on a website, in a chat room or via the internet
except where such statement is required by law or regulation. During such three
year period, none of the Company’s executive officers and directors shall make
any negative or derogatory statements in verbal, written, electronic or any
other form about the Employee, including, but not limited to, a negative or
derogatory statement made in, or in connection with, any article or book, on
a
website, in a chat room or via the internet except where such statement is
required by law or regulation
3.1
General
Duties:
During
the Employment Period, Moser shall perform the duties of an executive nature,
as
well as such other duties as the Company’s Board of Directors (the “
Board
”)
may
prescribe from time to time. Moser shall report directly to the Chief Executive
Officer of the Company. During the Employment Period and subject to the
direction of the Board, Employee shall perform such executive duties and
functions and discharge such responsibilities as are reasonably associated
with
his executive position or as may be reasonably assigned or delegated to him
from
time to time by the Chief Executive Officer, consistent with his position as
Vice President and Chief Operating Officer. The Company understands that Moser
may serve on the board of directors and advisory boards of other companies
provided (a) such other company is not engaged in a business which is
competitive with the business now conducted by the Company or then conducted
by
the Company or (b) such activities do not materially interfere with his duties
hereunder.
3.2
Devotion
to Company:
Moser
shall devote his full time and use his best efforts to the business of the
Company during the Employment Period.
4.1
The
Company’s Board of Directors has determined that it is appropriate to reinforce
and encourage the continued attention and dedication of members of the Company's
management, including the Employee, to their assigned duties without distraction
in potentially disturbing circumstances arising from the possibility of a change
in control of the Company.
4.2
In
the
event that within one hundred and eighty (180) days of a Change in Control
(as
defined below) (i) Employee is terminated, or (ii) (A) Employee’s status, title,
position or responsibilities are materially reduced; (B) Employee’s compensation
is materially diminished as compared to the compensation payable prior to the
Change in Control; (C) Employee is required to undertake substantial new
business-related travel due to the Change in Control; or (D) the Company
relocates the location of its offices such that Employee would be reasonably
expected to move his primary residence and (iii) Employee terminates his
Employment, the Company shall pay and/or provide to the Employee, the following
compensation and benefits:
(a)
The
Company shall pay the Employee, in lieu of any other payments due hereunder,
(i)
the Accrued Compensation and (ii) the Severance Payment; and
(b)
The
conditions to the vesting of any outstanding stock options or other incentive
awards (including restricted stock, stock options and granted performance shares
or units (collectively, the “
Awards
”)
granted to the Employee under any of the Company’s benefit plans, or under any
other incentive plan or arrangement, shall be deemed void and all such Awards
shall be immediately and fully vested and exercisable and such Awards shall
be
deemed amended to provide that the Awards shall remain exercisable for the
duration of their original term.
4.3
“
Change
in Control
”
shall
mean any of the following events:
(a)
(i)
An
acquisition (other than directly from the Company) of any voting securities
of
the Company (the “
Voting
Securities
”)
by any
“
Person
”
(as
the
term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the “
1934
Act
”))
immediately after which such Person has “
Beneficial
Ownership
”
(within
the meaning of Rule 13d-3 promulgated under the 1934 Act) of thirty five percent
(35%) or more of the combined voting power of the Company’s then outstanding
Voting Securities; provided, however, that in determining whether a Change
in
Control has occurred, Voting Securities which are acquired in a “Non-Control
Acquisition” (as defined below) shall not constitute an acquisition which would
cause a Change in Control. A “
Non-Control
Acquisition
”
shall
mean an acquisition by (1) an employee benefit plan (or a trust forming a part
thereof) maintained by (x) the Company or (y) any corporation or other Person
of
which a majority of its voting power or its equity securities or equity interest
is owned directly or indirectly by the Company (a “
Subsidiary
”),
or
(2) the Company or any Subsidiary.
(ii)
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because a Person (the “
Subject
Person
”)
gained
Beneficial Ownership of more than the permitted amount of the outstanding Voting
Securities as a result of the acquisition of Voting Securities by the Company
which, by reducing the number of Voting Securities outstanding, increases the
proportional number of shares Beneficially Owned by the Subject Person, provided
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Voting Securities by the Company, and after
such share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional Voting Securities which increases the percentage of
the
then outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
(b)
The
individuals who, as of the date this Agreement are approved by the Board,
are members of the Board (the “
Incumbent
Board
”),
cease
for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Company’s
shareholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered and defined as a member of the Incumbent Board; and provided,
further, that no individual shall be considered a member of the Incumbent Board
if such individual initially assumed office as a result of either an actual
“
Election
Contest
”
(as
described in Rule 14a-11 promulgated under the 1934 Act) or other solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
“
Proxy
Contest
”);
or
(c)
Approval
by stockholders of the Company of: (i) A merger, consolidation or reorganization
involving the Company, unless: (1) the shareholders of the Company, immediately
before such merger, consolidation or reorganization, own, directly or indirectly
immediately following such merger, consolidation or reorganization, at least
sixty percent (60%) of the combined voting power of the outstanding voting
securities of the corporation resulting from such merger or consolidation or
reorganization (the “
Surviving
Corporation
”)
in
substantially the same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization, (2) the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, and (3) no Person (other than the
Company, any Subsidiary, any employee benefit plan (or any trust forming a
part
thereof) maintained by the Company, the Surviving Corporation or any Subsidiary)
becomes Beneficial Owner of twenty percent (20%) or more of the combined voting
power of the Surviving Corporation’s then outstanding voting securities as a
result of such merger, consolidation or reorganization, a transaction described
in clauses (1) through (3) shall herein be referred to as a “
Non-Control
Transaction
”;
or
(ii)
An
agreement for the sale or other disposition of all or substantially all of
the
assets of the Company, to any Person, other than a transfer to a Subsidiary,
in
one transaction or a series of related transactions; or
(iii)
The
shareholders of the Company approve any plan or proposal for the liquidation
or
dissolution of the Company.
(d)
Notwithstanding
anything contained in this Agreement to the contrary, if the Employee’s
employment is terminated prior to a Change in Control and the Employee
reasonably demonstrates that such termination (i) was at the request of a third
party who has indicated an intention or taken steps reasonably calculated to
effect a Change in Control (a “Third Party”) or (ii) otherwise occurred in
connection with, or in anticipation of, a Change in Control, then for all
purposes of this Agreement, the date of a Change in Control with respect to
the
Employee shall mean the date immediately prior to the date of such termination
of the Employee’s employment.
5.1
Base
Salary:
As
full
compensation for all services provided for herein, the Company shall pay, or
caused to be paid to Moser, and Moser shall accept, a base salary during the
Employment Period of not less than ONE HUNDRED AND TWENTY THOUSAND DOLLARS
AND
00/100 ($120,000) per year, as may be increased from time to time in the sole
discretion of the Board (the “
Base
Salary
”).
The
Base Salary shall be paid in regular installments in accordance with the
Company’s usual pay dates for executives, but not less frequently than monthly.
Employee may receive such other additional compensation as may be determined
from time to time by the Board including bonuses and other long term
compensation plans. Except as expressly set forth herein, nothing in this
paragraph shall be deemed or construed to require the Board to award any bonus
or additional compensation.
5.2
Bonus
Options:
Subject
to the approval of the Company’s shareholders of an appropriate equity-based
incentive compensation plan (“Shareholder Approval”), upon the execution of this
Agreement, the Company shall grant Moser an option to purchase up to Four
Million (4,000,000) shares of the common stock of the Company (“
Bonus
Options
”).
Subject to the Shareholder Approval, the Bonus Options shall be fully
exercisable and vested upon the six month anniversary of the Effective Date.
The
exercise price of the Bonus Options will be equal to the fair market value
of
the Company’s common stock as reported on the Over the Counter Bulletin Board on
the date this Agreement is executed by both parties.
5.3
Benefits:
During
the Employment Period, Moser will be entitled to participate in the Company's
fringe benefit programs presently offered for senior management, or which may
hereafter, during the Employment Period, be offered to its senior management
and/or non-executive employees on a company wide basis (including group life
insurance, group disability insurance, group medical and hospitalization plans,
pension and profit sharing plans), subject to any eligibility requirements.
All
such fringe benefit programs shall be determined, and periodically modified,
at
the sole discretion of the Board.
5.4
Withholding:
All
compensation payable to Moser under this Agreement is stated in gross amounts
and will be subject to all applicable withholding taxes, other normal payroll
deductions, and any other amounts required by law to be withheld.
5.5
Vacation:
Moser
will be entitled to take 15 vacation days per annum in accordance with current
Company vacation policy for senior management, as well as to take standard
Company holidays.
5.6
Expenses:
The
Company, in accordance with its policies, shall pay or reimburse Moser for
all
reasonable and customary expenses (including travel and entertainment expenses)
incurred by Moser during the Employment Period in connection with the
performance of Moser's duties under this Agreement; provided that Moser shall
provide the Company with an itemized account of such expenditures together
with
such vouchers and other receipts as the Company may request, in accordance
with
Company policy and Internal Revenue Service regulations.
5.7
Retirement
Plan:
Moser
will be eligbile to join the Company’s retirement plan, if any, as defined
within the Company’s policies, subject to any eligibility
requirements.
5.8
Earned
Options:
Subject
to the Shareholder Approval, the Company hereby grants to Moser options to
purchase Ten Million Two Hundred Thousand (10,200,000) shares of the Company's
common stock (“
Earned
Options
”).
Subject to the Shareholder Approval, commencing on the six month anniverary
of
the Effective Date, the Earned Options shall vest in installments of Three
Hundred Forty Thousand (340,000) shares and thereafter on the first day of
each
month of the balance of the Employment Period provided Employee continues to
perform services to Company under this Agreement (each installment may be
referred to as an “Option Installment”). The exercise price of the Earned
Options will be equal to the fair market value of the Company’s common stock as
reported on the Over the Counter Bulletin Board on the date that this Agreement
is executed by both parties. The Earned Options shall be exercisable for a
period of ten years from the date of grant.
5.9
Termination
of Options.
In
the
event of the termination of Employee’s employment by the Company without Cause
prior to the Expiration Date, notwithstanding anything herein or in any stock
option agreement to the contrary, (a) the Employee’s right to purchase shares of
Common Stock of the Company pursuant to any stock option or stock option plan
shall immediately fully vest and become exercisable, (b) the exercise period
in
which Employee may exercise his options to purchase Company common stock shall
be extended to the duration of their original term, as if Employee remained
an
employee of the Company, and the terms of such options shall be deemed amended
to take into account the foregoing provisions. For purposes of clarity, Employee
and Company agree that the occurrence of a Change in Control shall not affect
the provisions of this Section.
In
the
event of a termination of Employee’s employment with the Company for Cause,
options granted and not exercised as of the Termination Date shall terminate
immediately and be null and void. In the event of a termination of Employee’s
employment with the Company due to the Employee’s death, or Disability, the
Employee’s (or his estate’s or legal representative’s) right to purchase shares
of Common Stock of the Company pursuant to any stock option or stock option
plan
to the extent vested as of the Termination Date shall remain exercisable for
a
period of twelve (12) months following the Termination Date, but in no event
after the expiration of the exercise period. In the event of the voluntary
termination of Employee’s employment with the Company by the Employee (other
than in connection with a Change in Control) or the termination of the
Employee’s employment on or after the Expiration Date, the Employee’s right to
purchase shares of Common Stock of the Company pursuant to any stock option
or
stock option plan to the extent vested as of the Termination Date shall remain
exercisable for a period of three months following the Termination Date, but
in
no event after the expiration of the exercise period. Notwithstanding the
foregoing, in the event of a Change in Control (as defined above), and the
Employee’s employment is terminated or Employee elects to terminate his
employment (subject to Section 4 of this Agreement), the Options granted
hereunder shall become immediately vested and exercisable in accordance with
Section 4 of this Agreement and any provisions of the Company’s equity
compensation plan pursuant to which the Options are granted.
6.
|
Restrictive
Covenants:
Moser agrees that his work for the Company will bring him into close
contact with customers of the Company and with many confidential
affairs
of the Company not readily available to the public, and which the
Employee
acknowledges that the Company considers to be trade secrets. Moser
further
agrees that the technology market is highly competitive and worldwide
in
scope. In order to protect the confidential or proprietary information
and
trade secrets of the Company, its customers, and third parties with
which
the Company has entered into confidential agreements, and in consideration
of employment and continued employment, the right to receive income
and
benefits therefore as set forth in this Agreement, the Company’s granting
Moser access to such confidential or proprietary information and
trade
secrets, as well as allowing Moser wide access to become familiar
with the
Company's business and operations and for other good and valuable
consideration, Moser agrees as follows:
|
6.1
Confidential
and Proprietary Rights:
Moser
agrees that he will not at any time during his employment or after the
termination of his employment with the Company directly or indirectly disclose
to any person, firm, corporation, partnership, or other entity whatsoever
(except the Company), or use, modify or adapt any trade secret or other
confidential or proprietary information of the Company, including without
limitation, information concerning the Company’s business, technology, finances,
marketing, computerized payroll, accounting and information business, personnel
and/or employee leasing business of the Company and its subsidiaries,
information relating to any customer of the Company, or any other nonpublic
business information of the Company and/or its subsidiaries learned as a
consequence of Employee’s employment with the Company or to which he has access,
(collectively referred to as the “
Proprietary
Information
”)
except
for information available publicly or from other non-confidential sources or
to
the extent it is otherwise required to be disclosed by law or any legal process.
Such Proprietary Information includes, without limitation (a) information not
generally known to the public and proprietary to the Company, (b) information
which Moser has a reasonable basis to believe is confidential or proprietary
information or trade secrets of the Company, or (c) information which Moser
has
a reasonable basis to believe the Company treats as confidential or proprietary
information or trade secrets. In addition, the prohibition on disclosing such
confidential information shall not include that which Moser must disclose to
the
Company’s lawyers, accountants and other professionals that require disclosure
of such information in order to perform the services for which they are engaged
in the course of Moser’s role as President of the Company and which persons will
hold such information in substantial compliance with this Section. The
provisions of this Section 6 shall apply with equal force to any confidential
information of any third party with respect to which the Company has signed
a
confidentiality agreement. The Employee acknowledges that Proprietary
Information, as it may exist from time to time, is a valuable and unique asset
of the Company, and that disclosure of any such information would cause
substantial injury to the Company. If Employee is requested or required (by
oral
questions, interrogatories, requests for information or document subpoenas,
civil investigative demands, or similar process) to disclose any Proprietary
Information, Employee shall, unless prohibited by law, promptly notify the
Company of such request(s) so that the Company may seek an appropriate
protective order.
6.2
Assignment
of Inventions.
Except
as
otherwise may be agreed by the Company in writing, in consideration of the
employment of Employee by the Company, and free of any additional obligations
of
the Company to make additional payment to Employee, Employee agrees to
irrevocably assign to the Company any and all inventions, software, manuscripts,
documentation, improvements or other intellectual property whether or not
protectable by any state or federal laws relating to the protection of
intellectual property, relating to the present or future business of the Company
that are developed by Employee during the term of his/her employment with the
Company, either alone or jointly with others, and whether or not developed
during normal business hours or arising within the scope of his/her duties
of
employment. Employee agrees that all such inventions, software, manuscripts,
documentation, improvement or other intellectual property shall be and remain
the sole and exclusive property of the Company and shall be deemed the product
of work for hire. Employee hereby agrees to execute such assignments and other
documents as the Company may consider appropriate to vest all right, title
and
interest therein to the Company and hereby appoints the Company as the
Employee’s attorney-in-fact with full powers to execute such document itself in
the event employee fails or is unable to provide the Company with such signed
documents. Notwithstanding the foregoing, this provision does not apply to
an
invention for which no equipment, supplies, facility, or trade secret
information of the Company was used and which was developed entirely on
Employee’s own time, unless (a) the invention relates (i) to the business of the
Company, or (ii) to the Company's actual or demonstrably anticipated research
or
development, or (b) the invention results from any work performed by Employee
for the Company.
6.3
Non-Competition
and Non-Solicitation:
In the
event of any termination of Employee’s employment with the Company at any time,
Employee agrees that he will not, for a period of six months following such
termination, directly or indirectly, enter into or become associated with or
engage in any other business (whether as a partner, officer, director,
shareholder, employee, consultant, or otherwise),
which
business is primarily involved in the manufacture, development and/or
distribution of sensors or is otherwise engaged in the same or similar business
as the Company in direct competition with the Company, or which the Company
was
in the process of developing during the term of Employee’s employment with the
Company and such development is based on actual or demonstrative anticipated
research (collectively, a “
Competitive
Business
”).
Notwithstanding the foregoing, (x) the ownership by Employee of less than five
percent of the shares of any publicly held corporation shall not violate the
provisions of this paragraph, and (y) the Employee shall not be required to
comply with any provision of this paragraph following termination of this
Agreement if the amounts that are required to be paid to Employee after such
termination are not timely paid. In furtherance of the foregoing, Employee
shall
not during the aforesaid period of non-competition, directly or indirectly,
in
connection with any Competitive Business, solicit any customer or employee
of
the Company who was a customer or employee of the Company within one year of
the
Termination Date.
6.4
Return
of Documents and Property:
Upon
termination of employment or sooner if requested by the Company, Moser shall
forthwith either destroy or deliver to the Company all copies and original
documents and any other material and property of the Company of any kind
acquired or coming to the knowledge or possession of Moser in connection with
or
as a result of Moser’s employment and that relate in any way to the business of
the Company, including without limitation, and in any medium, literature, data,
plans, designs, specifications, price information, customer information,
supplier information, marketing information, business plans, financial
information, memorandums, correspondence, notes and records.
7.
|
Remedies:
Moser
agrees that a violation of the covenants set forth in Sections 6.1
through
6.4, or any provision thereof, could cause irreparable injury to
the
Company and that, in addition to other remedies available to the
Company,
the Company shall be entitled to injunctive or other equitable relief
in
case of any such violation or threatened violation. The remedies
set forth
in this Section 7 shall be in addition to, rather than in lieu of,
any
other rights and remedies the Company may have at law or in equity.
|
8.
|
Indemnity.
The Company hereby agrees to indemnify, defend, and hold harmless
the
Employee for any and all claims arising from or related to his
employment
by the Company at any time asserted, at any place asserted, to
the fullest
extent permitted by law. The Company shall use commercially reasonable
efforts to maintain such insurance as is necessary and reasonable
(with
minimum coverage of not less than $2,000,000) to protect the Employee
from
any and all claims arising from or in connection with his employment
by
the Company during the term of Employee's employment with the Company
and
for a period of six (6) years after the date of termination of
employment
for any reason. The provisions of this Section are in addition
to and not
in lieu of any indemnification, defense or other benefit to which
Employee
may be entitled by statute, regulation, common law or otherwise.
Any other
provision herein to the contrary notwithstanding, the Company shall
not be
obligated pursuant to the terms of this Agreement:
|
(a)
Claims
Initiated by Employee
.
To
indemnify or advance expenses to the Employee with respect to proceedings or
claims initiated or brought voluntarily by the Employee and not by way of
defense, except with respect to proceedings brought to establish or enforce
a
right to indemnification under this Agreement or any other statute or law or
otherwise, but such indemnification or advancement of expenses may be provided
by the Company in specific cases if the Board of Directors finds it to be
appropriate; or
(b)
Lack
of Good Faith
.
To
indemnify the Employee for any expenses incurred by the Employee with respect
to
any proceeding instituted by the Employee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the
material assertions made by the Employee in such proceeding was not made in
good
faith or was frivolous; or
(c)
Unauthorized
Settlements
.
To
indemnify the Employee under this Agreement for any amounts paid in settlement
of a proceeding unless the Company consents to such settlement; or
(d)
Claims
by the Company for Willful Misconduct
.
To
advance expenses to the Employee under this Agreement for any expenses incurred
by the Employee with respect to any proceeding or claim brought by the Company
against Employee for willful misconduct, unless a court of competent
jurisdiction determines that each of such claims was not made in good faith
or
was frivolous; or
(e)
16(b)
Actions
.
To
indemnify the Employee on account of any suit in which judgment is rendered
against Employee for an accounting of profits made from the purchase or sale
by
Employee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities and Exchange Act of l934 and amendments thereto or
similar provisions of any federal state or local statutory law; or
(f)
Willful
Misconduct or Breach
.
To
indemnify the Employee on account of Employee’s conduct which is finally
adjudged to have been knowingly fraudulent, deliberately dishonest, or to
constitute willful misconduct or as constituting a breach of Employee’s duty of
loyalty to the Company or resulting in any personal profit or advantage to
which
Agent was not legally entitled; or
(g)
Unlawful
Indemnification
.
To
indemnify the Employee if a final decision by a court having jurisdiction in
the
matter shall determine that such indemnification is not lawful (and, in this
respect, both the Company and Employee have been advised that the Securities
and
Exchange Commission believes that indemnification for liabilities arising under
the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication).
9.
|
Survival:
The
provisions of Sections 6 and 7 shall survive the termination of this
Agreement for any reason, for the duration specified
therein.
|
10.
|
Revision:
If
any provisions of this Agreement as applied to any circumstances
shall be
adjudged by an arbitrator or a court of competent jurisdiction to
be
invalid or unenforceable, the same shall in no way affect any other
provision in any other circumstances, or the validity or enforceability
of
this Agreement. The Company and Moser intend this Agreement and the
provisions of Sections 6 and 7 to be enforced as written.
|
11.
|
Severability:
However, if any provision, or any part thereof, is held to be
unenforceable because of its scope or the duration of such provision
or
the area covered thereby, the Company and Moser agree that the court
or
arbitrator making such determination shall have the power to reduce
the
scope, duration and/or area of such provision, and/or to delete specific
words or phrases and in its reduced form such provision shall then
be
enforceable and shall be enforced.
|
12.
|
Entire
Agreement:
This Agreement embodies the entire understanding between the Company
and
Moser, and supersedes all prior understandings and discussions, whether
oral or written. It may not be changed orally, but only by an amendment
in
writing signed by both parties.
|
13.
|
Waiver:
The waiver by the Company of a breach of any provision of this Agreement
by Moser shall not operate or be construed as a waiver of any subsequent
breach by Moser. The waiver by Moser of a breach of any provision
of this
Agreement by the Company shall not operate or be construed as a waiver
of
any subsequent breach by the
Company.
|
14.
|
Governing
Law; Jurisdiction:
This Agreement shall be construed under and governed by the laws
of the
State of California, United States of America, without regard to
conflict
of laws principles. Any or all actions or proceedings which may be
brought
by the Company or Employee under this Agreement shall be brought
in courts
having a situs within the State of California, and Employee and the
Company each hereby consent to the jurisdiction of any local, state,
or
federal court located within the State of
California.
|
15.
|
Binding
Effect; Non-Assignment:
This Agreement and the rights and obligations of the Company hereunder
shall inure to the benefit of and shall be binding upon the Company
and
any companies or other entities controlling, controlled by, or under
common control with the Company, and upon successors and assigns
of any
such company. Neither this Agreement nor any of Moser’s rights or
obligations the Company or shall be transferable or assignable by
Moser or
any person claiming any such benefit through him, but they shall
inure to
the benefit of and shall be binding upon his executors, administrators,
personal representatives, heirs, and
legatees.
|
16.
|
Dispute
Resolution:
The
parties hereby submit to the jurisdiction of, and waive any venue
objections against, the United States District Court for the Northern
District of California and the Superior and Municipal Courts of the
State
of California, Santa Clara County, in any litigation arising out
of the
Agreement. The Company may, however, institute a binding arbitration
proceeding pursuant to the commercial arbitration rules of the American
Arbitration Association then existing relating to any controversy
or claim
arising from or relating to this Agreement, or its making, performance,
or
interpretation and judgment on any such arbitration award shall be
final,
binding and conclusive on all parties and may be entered in any court
having jurisdiction over the subject matter of the
controversy.
|
17.
|
Notices.
For
the purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed
to
have been duly given when (a) personally delivered or (b) sent by
(i) a
nationally recognized overnight courier service or (ii) certified
mail,
return receipt requested, postage prepaid and in each case addressed
to
the respective addresses as set forth below or to any such other
address
as the party to receive the notice shall advise by due notice given
in
accordance with this paragraph. All notices and communications shall
be
deemed to have been received on (A) if delivered by personal service,
the
date of delivery thereof; (B) if delivered by a nationally recognized
overnight courier service, on the first business day following deposit
with such courier service; or (C) on the third business day after
the
mailing thereof via certified mail. Notwithstanding the foregoing,
any
notice of change of address shall be effective only upon receipt.
The
current addresses of the parties are as follows:
|
If
to the Company:
|
NanoSensors,
Inc.
|
|
1800
Wyatt Dr., Suite # 2
|
|
Santa
Clara, CA 95054
|
|
|
If
to Employee:
|
To
the place set forth on page 1 of this
Agreement.
|
18.
|
Counterparts:
This Agreement may be executed by facsimile transmission in one
or
more
counterparts, each of which shall be deemed an original and which
together
shall constitute one
instrument.
|
19.
|
Material
Actions:
If
the Company becomes a party to any material action or proceeding
during
the term of this Agreement, the Company agrees to notify Moser on
a timely
basis of any material action or
proceeding.
|
20.
|
Separate
Counsel:
Moser has been advised and encouraged by the Company to consult
with an
attorney of his
choosing.
|
Remainder
of page intentionally left blank. Signature page follows.
Signature
Page to Employment Agreement
between
NanoSensors, Inc. And Joshua Moser
IN
WITNESS WHEREOF
,
the
Company has caused this Agreement to be executed by its duly authorized officer
and Moser has hereunto set his hand, all as of the day and year first above
written.
NanoSensors,
Inc.
|
|
Joshua
Moser
|
|
|
|
|
|
|
By:
|
/s/
Ted Wong
|
|
/s/
Joshua
Moser
|
|
Ted
Wong,
|
|
Joshua Moser
|
|
Chief
Executive
Officer
|
|
|
NANOSENSORS,
INC.
FOR
RELEASE TUESDAY, AUGUST 8, 2006 AT 4:00 PM EAST COAST TIME
NanoSensors
Enters Into Employment Agreements
With
Dr. Ted Wong and Mr. Joshua Moser
Santa
Clara, California, August 8, 2006 - NanoSensors Inc. (OTCBB: NNSR.OB), a
nanotechnology development company that develops instruments and sensors to
detect explosives, chemical and biological agents announced today that it has
entered into three-year employment agreements with Dr. Ted Wong, its Chief
Executive Officer and Joshua Moser, its newly appointed Vice President - Chief
Operating Officer.
Dr.
Wong
is a founder and the CEO of the Company and Mr. Moser has been engaged as a
consultant to the Company since November 2005. During this time Dr. Wong and
Mr.
Moser developed a new business plan for the Company and worked closely on
closing the Company’s recent private placement.
“By
entering into these agreements, the Company has decided to give our two key
people a strong vote of confidence and to endorse their plans to aggressively
pursue key technology licenses and business developments” said Robert Baron, the
member of the Company’s Board of Directors who was responsible for negotiating
these agreements on the Company’s behalf. “We feel that the compensation
packages provided for by these agreements fairly reward these two individuals
for their efforts to date as well as properly incentives them to execute on
the
Company’s business plan” added Mr. Baron.
Dr.
Wong
is a founder of the Company and has been its Chief Executive Officer and a
director since its inception in December 2003. Dr. Wong has over thirty years
of
U.S. and international business experience spanning the operational functions
of
research and development, sales, finance, and general business. Dr. Wong holds
a
B.S. and a Ph.D. in Chemical Engineering from the University of
Utah.
Mr.
Moser
has extensive experience in finance, restructuring and operating troubled
companies and managing assets in the technology, manufacturing and service
industries. Prior to working with NanoSensors, from September 1999 to October
2000, Mr. Moser was the Director of Business Development at GCN, Inc., an online
market research company. From October 2000 to September 2002, Mr. Moser was
a
research analyst at Tufan, Inc., where he analyzed and managed investments
in
privately-held software, semiconductor and technology service companies. From
September 2002 through February 2005, Mr. Moser was employed as a Vice President
with Sherwood Partners, Inc., a business and financial advisory consulting
firm
that assists commercial lending institutions and venture capital firms in
managing and structuring corporate turnarounds. Thereafter, Mr. Moser has been
providing management consulting services, including serving as Interim Chief
Financial Officer at Chuckwalla, Inc., a privately-held software company. Mr.
Moser is 35 years of age and graduated from Denison University in 1994 with
a
B.A. in History.
About
NanoSensors, Inc.
NanoSensors,
Inc. (
www.nanosensorsinc.net
)
was
incorporated in December, 2003 and is a nanotechnology development company
based
in Santa Clara, California. The Company's principal business is the development,
manufacturing and marketing of sensors and instruments to detect explosive
(X),
chemical (C) and biological (B) agents ("XCB"), along with the management of
intellectual property derived there from that will enable NanoSensors to create
nanoscale devices.
This
press release contains "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended, and are subject to the safe harbors
created thereby. These forward-looking statements involve known and unknown
risks, uncertainties and other facts that could cause the actual future results
of the Company to be materially different from such forward looking statements.
These forward-looking statements are made only as of the date hereof, and we
disclaim
any obligation to update or revise the information contained in any such
forward-looking statements, whether as a result of new information, future
events or otherwise.
CONTACT
Dr.
Ted
Wong, CEO
(408)
855-0051
tlwongusa@yahoo.com
www.nanosensorsinc.net