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Exhibit 10.8
EMPLOYMENT AGREEMENT
WHEREAS, the company identified below ("Company") employs the
employee
identified below ("Employee") in the capacity identified below
("Position"); and
WHEREAS, Employee desires to agree to the covenants relating to
his
employment and post-employment activities in exchange for the
undertakings of
Company hereunder.
NOW,
THEREFORE, in consideration of the foregoing, of the mutual
promises
herein contained, and of other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties,
intending legally to
be bound by this Employment Agreement ("Agreement"), agree as
follows:
1.
Specifications and Definitions
(a) Agreement Dated:
As of April 1, 2006
(b) Company:
NanoDynamics, Inc.
(c) Employee Name and
Address:
Keith A. Blakely
63
Morris Avenue
Buffalo, NY 14214
(d) Position: Chief
Executive Officer
(e) Signing Bonus:
$100,000 due and payable upon execution of this Agreement
Base
Salary: $275,000
4/1/06 -- 4/30/07
$300,000 5/1/07
-- 4/30/08
$325,000 5/1/08
-- 10/31/08
(f) Basic Term: Three
(3) years from the date hereof.
(g) Geographic Area of
Non-Competition: shall mean the areas specified below:
Worldwide.
The
Employee specifically acknowledges that this geographic restriction
is
reasonable given the scope of Employee's responsibilities.
(h) Specific Field of
Non-Competition shall mean any "Similar Business" as
defined in Section 9(a).
(i) Affiliated
Company: shall mean Company and any other business organization
in
which Company directly or indirectly holds a twenty-five percent
(25%)
or
greater ownership interest.
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2.
Employment
Company agrees to employ Employee in the Position as set forth in
Section 1(d),
and Employee agrees to accept such employment on the terms and
conditions herein
set forth.
3. Term
The term of employment of Employee pursuant to this Agreement shall
commence as
of the date hereof and shall continue for the number of years equal
to the Basic
Term as defined in Section 1(f), and this Agreement shall be
automatically
renewed for additional one-year terms unless and until sixty (60)
days prior
written notice is given by either party to the other of the intent
to not to
renew the term of this Agreement as provided herein.
4. Duties
(a) Employee shall, on
a full-time basis, devote his best efforts and services
to
the Company in fulfilling the duties of the Position, which
shall
include duties normally associated with the Position at a
comparable
organization and such other duties as reasonably may be assigned
from time
to
time by the Board of Directors of the Company (the "Board of
Directors"). Employee shall at all times conduct himself in a
manner
consistent with the duties and responsibilities of the Position.
Employee
shall at all times serve the best interests of the Company,
reporting to
and
subject at all times to the direction and supervision of the Board
of
Directors.
(b) If Employee is
elected or appointed a Director of Company or an Affiliated
Company during the term of this Agreement, Employee agrees to serve
in such
capacity, and he shall be entitled to receive such further
compensation as
other Directors of the Company or an Affiliated Company are
entitled to
receive; but nothing herein shall be construed as requiring
Company, or
anyone else, to cause the election or appointment of Employee as
a
Director.
(c) Employee
represents and warrants that acceptance and delivery of this
Agreement and the performance of his duties hereunder will not
violate the
terms of any other agreement to which he is or was a party or to
which he
is
or was intended to be bound. Employee agrees not to enter into
any
agreement, either written or oral, which may conflict with this
Agreement.
Employee further represents and warrants that in performing his
duties
hereunder, he shall use his best efforts to comply with all
applicable laws
and
regulations and that he immediately will report to the Board of
Directors all material conduct by Company or its employees or
agents
(including Employee) which he knows or should have known is or may
be
illegal.
5. Compensation
and Benefits
(a) Employee shall
receive the one time "Signing Bonus" payable upon execution
of
this Agreement and the "Base Salary" for the periods indicated
payable
in
periodic installments both as defined in Section 1(e) less the
usual tax
withholdings and payroll deductions. The Base Salary may be
reviewed
periodically, and may be increased (but in no event decreased) to
the
extent, if any, determined by Company in its sole discretion.
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(b) Employee shall
also be entitled to participate in any fringe benefit
programs generally available to all employees of Company in
accordance with
and
subject to the terms and conditions of such programs. In addition,
(i)
Company shall reimburse Employee an amount equal to 1.6 times the
premiums
paid
by Employee to purchase long term disability insurance in an
amount
equal to 50% of the Base Salary with a waiting period of not less
than 180
days
of disability, and such reimbursement shall be made within
fifteen
(15) days of
presentation of a premium invoice by Employee to the Company,
the
amount of said reimbursement not to exceed $15,000 per year;
(ii)
Company shall reimburse Employee an amount equal to 1.6 times the
premiums
paid
by Employee to purchase $1,000,000 of term life insurance for
the
benefit of his designated beneficiaries, the amount of said
reimbursement
not
to exceed $10,000 per year; and (iii) Employee shall be entitled
to
four
(4) weeks of vacation per calendar year.
(c) Company shall
reimburse Employee for all reasonable and necessary business
expenses incurred by him in the performance of his duties hereunder
which
are
properly documented and in accordance with Company's policies
and
procedures as they may be amended from time to time.
(d) In addition to
Base Salary, on or before January 31 of each calendar year
commencing in 2006, the Board of Directors shall establish an
annual
incentive compensation program consisting of both cash and stock
options to
be
awarded to Employee based on corporate and individual performance
during
the
applicable calendar year ("Incentive Compensation"). Awards shall
be
made
as of January 31 of the following year. If Employee's employment
is
terminated for any reason, other than for "Just Cause" as defined
in
Section 13(a), during a calendar year, he shall be entitled to a
pro rata
share of the cash portion of the Incentive Compensation calculated
at the
end
of such calendar year based on the number of months in the
applicable
calendar year prior to termination. The economic terms and
performance
criteria of the annual incentive compensation program shall be
determined
by
the Board of Directors acting in its sole discretion.
6. Illness,
Incapacity or Death
(a) If, during the
term of this Agreement, Employee should be prevented from
performing his duties by reason of illness or incapacity for an
aggregate
of
one hundred eighty (180) days in any twelve (12) month period,
then
Company may immediately terminate this Agreement by ten (10) days
notice in
writing, in which event this Agreement shall thereupon terminate,
and the
provisions of Section 14 shall not apply and no further payments
shall be
due
Employee from Company other than pursuant to any employee benefit
plan
or
fringe benefit in which Employee participates.
(b) If Employee dies
during the term of this Agreement, this Agreement shall
thereupon terminate, the provisions of Section 14 shall not apply
and no
further payments shall be due Employee from Company other than
pursuant to
any
employee benefit plan or fringe benefit in which Employee
participates.
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7.
Non-Disclosure of Information
It is understood that the business of Company and any Affiliated
Company is of a
confidential nature. During the period of Employee's employment by
Company,
Employee may have received and/or may secure confidential
information concerning
Company and any Affiliated Company which, if known to competitors
thereof, would
damage Company and any Affiliated Company. Employee agrees that
during and after
the term of this Agreement he will not, directly or indirectly,
divulge,
disclose or appropriate to his own use, or to the use of any third
party, any
secret, proprietary or confidential information or knowledge,
obtained by him
during the term hereof, concerning such confidential matters of
Company and any
Affiliated Company, including, but not limited to, information
pertaining to
research and development, trade secrets, systems, manuals,
confidential reports,
customers, suppliers, costs, pricing, methods, processes, designs,
equipment
catalogs, operating procedures, equipment and methods used and
preferred by
Company's customers and suppliers and fees paid by them.
Confidential
information does not include any information which Employee can
demonstrate was
publicly available prior to Employee's receipt of such information
or thereafter
became publicly available without any action on Employee's part.
Information
shall be deemed "publicly available" if it becomes a matter of
public knowledge
or is contained in materials available to the public or is obtained
from any
source other than Company or any Affiliated Company (or their
directors,
officers, employees or outside advisors) provided that such source
has not
entered into a confidentiality agreement with Company or any
Affiliated Company
with respect to such information or obtained the information from
an entity or
person party to a confidentiality agreement with Company or
Affiliated Company.
If Employee becomes legally compelled to disclose any confidential
information,
Employee will provide Company with immediate written notice so that
Company may
seek a protective order or other appropriate remedy. If Company
does not obtain
such protective order or other appropriate remedy, Employee will
furnish only
that portion of the confidential information which Employee is
legally required
to disclose.
8. Trade
Secrets
Employee covenants that he shall, while employed by Company, assign
and transfer
over to Company or its designee all right, title and interest in
and to all
trade secrets, secret processes, inventions, improvements, patents,
patent
applications, trademarks, trademark applications, copyrights,
copyright
registrations, discoveries and/or other developments (hereafter
"Inventions")
which he may thereafter, alone or in conjunction with others,
conceive, make,
acquire, or suggest at any time which relate to the products,
processes, work,
research, or other activities of Company or any Affiliated Company.
Any and all
Inventions which are of a proprietary nature and which Employee may
conceive,
acquire or suggest, either alone or in conjunction with others,
during his
employment with Company relating to or in any way pertaining to or
in any way
connected with Company's or any Affiliated Company's business,
shall be the sole
and exclusive property of Company or its designee; and Employee,
whenever
required to do so by Company, shall, without further compensation
or
consideration, properly execute any and all applications,
assignments or other
documents which Company or its designee shall deem necessary in
order to apply
for and obtain Letters Patent of the United States and/or
comparable rights
afforded by foreign countries for the Inventions, or in order to
assign and
convey to Company or its designee the sole and exclusive right,
title and any
interest in and to the Inventions. This obligation shall continue
beyond the
termination of this Agreement with respect
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to Inventions conceived or made by Employee during the term of his
employment by
Company, and shall be binding upon his assigns, executors,
administrators and
other legal representatives.
9. Covenant Not
to Compete
For purposes of Sections 9 and 10, "Affiliated Company" shall be
limited to an
Affiliated Company as defined in Section 1(i) with which Employee
has had
subs
