EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Agreement, effective as of the 3rd day of October, 2000 (the
"Effective Date"), is made by and between CiDRA Corporation, a Delaware
Corporation ("CiDRA"), and Xxxx X. Xxxxxx (EMPLOYEE).
WHEREAS, CiDRA desires to engage the services of EMPLOYEE;
WHEREAS, EMPLOYEE is willing to provide such services to CIDRA;
WHEREAS EMPLOYEE and CiDRA have entered into an Intellectual Property
Agreement dated as of the date hereof, which includes among other things, a
covenant not to compete with CiDRA by the EMPLOYEE, a non-solicitation agreement
and an assignment of inventions agreement; and
NOW, THEREFORE, the parties hereto agree as follows:
1. EMPLOYMENT TERM
EMPLOYEE will serve as Vice President, Chief Technology Officer of CiDRA.
Subject to the provisions of Sections 3 and 4 below, the Initial Term of this
Agreement shall be for a period of two (2) years, beginning with the Effective
Date. EMPLOYEE's employment and this Agreement shall automatically extend for
additional one (1) year periods (each such extension a "Subsequent Term") unless
either party to this Agreement notifies the other in writing at least 90 days
prior to the end of the Initial Term or any Subsequent Term that he or it does
not want to extend the employment. The Initial Term and the Subsequent Term are
referred to in this Agreement collectively as the "Term".
2. COMPENSATION
a. So long as EMPLOYEE continues to perform the services specified in
Section 1 and this Agreement has not terminated, EMPLOYEE shall
receive a salary at the annual rate of One Hundred Eighty Five
Thousand Dollars ($185,000.00) (the "Annual Compensation"), payable in
accordance with CiDRA's standard payroll practices and procedures.
b. So long as EMPLOYEE continues to perform the services specified in
Section 1 and this Agreement has not terminated, EMPLOYEE shall be
eligible for bonus compensation equal to 30% of the Annual
Compensation. The bonus compensation will be paid upon achievement of
performance milestones as specified by CiDRA's Compensation Committee.
c. CiDRA shall reimburse EMPLOYEE for his reasonable expenses incurred in
performing his duties to CiDRA hereunder, subject to policies
established by the Board of Directors of CiDRA (the "Board") from time
to time.
d. EMPLOYEE shall receive such other benefits as CiDRA provides to its
similarly situated executive employees.
e. EMPLOYEE shall receive three (3) weeks vacation (15 days) during each
calendar year. Vacation shall accrue at the rate of 1.25 days per
month. Accrued but unused vacation shall be carried over to the next
calendar year.
f. CiDRA will provide group health medical insurance coverage for
EMPLOYEE and his eligible dependents through a plan maintained by
CiDRA for its employees. CiDRA shall have the right to adopt a medical
insurance plan that requires some level of copayment from employees,
including EMPLOYEE.
3. TERMINATION OF EMPLOYMENT.
In the event of the EMPLOYEE'S termination for any reason, CiDRA shall pay
to the EMPLOYEE on his termination date all amounts of Annual Compensation due
and owing, reimbursements properly submitted for expenses incurred prior to the
termination date and any accrued but unused vacation owed to the EMPLOYEE as of
the termination date (the "Accrued Obligations"). In addition, CiDRA shall pay
to the EMPLOYEE the following:
a. If CiDRA terminates EMPLOYEE's employment for Cause (as defined
below), or EMPLOYEE's employment terminates due to his death or
Disability (as defined below), or EMPLOYEE terminates his employment
with CiDRA other than as a result of a Good Reason (as defined below)
(but not in any event as a result of non-renewal of this Agreement in
accordance with Section 1):
i) CiDRA shall compensate EMPLOYEE with severance pay equal to three
(3) months Annual Compensation then in effect, without
consideration for any Bonus Compensation, to be paid in equal
installments over a three (3) month period following such
termination; and
ii) As of the Termination Date, EMPLOYEE shall not continue to
participate in any benefit plans of CiDRA.
b. In the event that EMPLOYEE's employment is terminated by CiDRA without
Cause, or by EMPLOYEE for Good Reason (but not in any event as a
result of non-renewal of this Agreement in accordance with Section 1),
CiDRA will provide EMPLOYEE with the following:
i) Severance pay equal to twelve (12) months Annual Compensation then
in effect to be paid in equal installments (minus applicable
withholdings) over a six (6) month period following such
termination; and
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ii) As of the Termination Date, EMPLOYEE shall not continue to
participate in any benefit plans of CiDRA.
Thereafter, no further amounts shall be due to EMPLOYEE. CiDRA may
request that EMPLOYEE sign a general release of all claims with CiDRA as a
condition for receiving any of the payments described in Section 3a. or 3b.
4. TERMINATION OF EMPLOYMENT SUBSEQUENT TO A CHANGE OF CONTROL (as defined
below)
a. Notwithstanding the provisions of Section 3b. above, if EMPLOYEE
terminates his employment with Good Reason (but not in any event as a
result of non-renewal of this Agreement in accordance with Section 1)
within 24 months of a Change of Control (as defined below), EMPLOYEE
will receive on his termination date the Accrued Obligations and
severance pay equal to six (6) months Annual Compensation then in
effect to be paid in equal installments (minus applicable
withholdings) over a six (6) month period following such termination,
and
b. All unvested stock options and/or restricted shares shall immediately
vest.
c. In the event of a termination for Good Reason within 24 months of a
Change of Control, the foregoing shall be EMPLOYEE's sole and
exclusive remedy, Section 3b. shall be inoperative during such 24
month period and EMPLOYEE shall not be entitled to any other or
further payments, compensation or benefits from CiDRA. CiDRA may
request that EMPLOYEE sign a general release of all claims with CiDRA
as a condition for receiving any of the payments or benefits described
in this Section 4.
d. For purposes of this Agreement:
i) "Cause" shall mean any act of or omission by EMPLOYEE in the
conduct of EMPLOYEE's duties and responsibilities which
constitutes gross negligence or willful misconduct, or any act of
or omission by EMPLOYEE which involves dishonesty or criminal
conduct. In the event the Board determines it has reason to
terminate EMPLOYEE's employment for Cause, it shall give written
notice to EMPLOYEE stating the specific grounds constituting
Cause. In the event that the Cause alleged constitutes any act or
omission in the conduct of EMPLOYEE's duties and responsibilities
which constitutes gross negligence or willful misconduct, EMPLOYEE
shall have an opportunity within five (5) days after receiving
such notice to meet with the Board to discuss such allegations of
Cause.
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ii) "Change of Control" shall mean: (i) any sale, lease, exchange or
other transfer (in one transaction or a series of transactions)
of all or substantially all of the assets of CiDRA; (ii)
individuals who, as of the date hereof, constitute the entire
Board of Directors of CiDRA (the "Incumbent Directors") cease for
any reason to constitute at least a majority of the Board of
Directors, provided that any individual becoming a director
subsequent to the date hereof whose election was approved by a
vote of at least a majority of the then Incumbent Directors shall
be, for the purposes of this provision, considered as though such
individual were an Incumbent Director; (iii) any consolidation or
merger of CiDRA with any other entity where the stockholders of
CiDRA immediately prior to the consolidation or merger, would
not, immediately after the consolidation or merger, beneficially
own, directly or indirectly, shares representing fifty percent
(50%) of the combined voting power of all of the outstanding
securities of the entity issuing cash or securities in the
consolidation or merger (or its ultimate parent corporation, if
any); (iv) a third person, including a "person" as defined in
Section 13(d)(3) of the Exchange Act, becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) directly
or indirectly, of securities of CiDRA representing seventy-five
percent (75%) or more of the total number of votes that may be
cast for the election of the directors of CiDRA; or (vi) the
Board of Directors of CiDRA , by vote of a majority of all the
Directors, adopts a resolution to the effect that a "Change-in-
Control" has occurred for purposes of the Plan. The completion of
an initial public offering of CiDRA's securities shall not, under
any circumstances, constitute a Change of Control.
iii) "Disability" shall mean EMPLOYEE's incapacity due to physical or
mental illness as certified in writing by a physician selected by
EMPLOYEE and reasonably acceptable to CiDRA (it being understood
that (i) such physician shall be deemed to be reasonably
acceptable to CiDRA if, within a period of fifteen (15) days
after EMPLOYEE notifies CiDRA of the name of such physician,
CiDRA does not object to the use of such physician, and (ii) if
EMPLOYEE fails to select a physician within fifteen (15) days
after a written request from CiDRA to do so, CiDRA shall have the
right to select the physician to examine EMPLOYEE).
iv) "Good Reason" means that (i) EMPLOYEE's compensation has been
materially reduced (and such reduction is not part of an overall
reduction in compensation affecting other employees of CiDRA),
(ii) EMPLOYEE's position, duties or responsibilities have been
materially reduced, (iii) the EMPLOYEE's primary place of
employment is moved to a location greater than sixty (60) miles
away from its then current location, or (iv) CiDRA has not paid
to EMPLOYEE when due any undisputed compensation, including
salary or bonus, and in all such cases
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(i-iv) the condition continues beyond 15 business days from the
date CiDRA's Board is notified in writing of its existence.
Notwithstanding anything contained herein to the contrary, a
material reduction in EMPLOYEE's position, duties or
responsibilities shall not be deemed to have occurred solely
because of a Change of Control, such that, for example and
without in anyway limiting the foregoing, a Change of Control
which results in CiDRA becoming a subsidiary of another entity
but does not reduce the responsibilities identified in Section 1
that the EMPLOYEE performs for CiDRA shall not alone be deemed a
material reduction of EMPLOYEE's position, duties or
responsibilities.
5. GOVERNING LAW; ARBITRATION; INJUNCTIVE AND OTHER RELIEF
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Connecticut applicable to agreements
made and to be performed entirely in Connecticut (without regard to its conflict
of laws statutes). Each party hereby irrevocably consents to the exclusive
jurisdiction of the federal and state courts located in Hartford, Connecticut
with respect to any actions which may arise in connection with this Agreement
and are not required by this Section 5 to be arbitrated. Except as provided in
this Section 5, any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration administered
by the American Arbitration Association in accordance with its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
Each of the parties to this Agreement acknowledges that a breach of this
Agreement may cause the other party irreparable harm which may not be adequately
compensated by money damages. Therefore, in the event of a breach or threatened
breach by a party, injunctive or other equitable relief will be available to the
other party, and any arbitrator acting pursuant to this Agreement shall have the
authority to provide such injunctive or other equitable relief. Remedies
provided herein are not exclusive, except as provided in Section 3.b.
The arbitrator shall have the authority to award such remedies or relief
that a court of the State of Connecticut could order or grant in an action
governed by Connecticut law, including, without limitation, specific performance
of any obligation created under this Agreement, the issuance of an injunction,
or the imposition of sanctions for abuse or frustration of the arbitration
process. The arbitration proceedings shall be conducted in Hartford,
Connecticut.
Notwithstanding the foregoing, any party may bring and pursue an action in
any federal or state court located in Hartford, Connecticut seeking provisional
relief, including a temporary restraining order or preliminary injunction,
pending an arbitration proceeding. Any provisional relief obtained shall be
discontinued once the arbitrator has assumed jurisdiction and ordered such
discontinuance.
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6. MISCELLANEOUS
a. Survival. Notwithstanding anything in this Agreement to the contrary,
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Section 5 shall survive any termination of this Agreement.
b. Successors and Assigns. The provisions hereof shall inure to the benefit
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of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
c. Entire Agreement; Amendment. This Agreement constitutes the full and
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entire understanding and agreement between the parties with regard to
the subjects hereto and thereof. None of this Agreement or any term
hereof may be amended, waived, discharged or terminated, except by a
written instrument signed by both of the parties hereto.
d. Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be mailed by certified
or registered mail, postage prepaid, delivered either by hand or by
messenger, or transmitted by electronic telecopy (fax) addressed:
If to CiDRA:
F. Xxxxx Xxxxxx, President and CEO
CiDRA Corporation
00 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
With a copy to:
Xxxxx Xxxxx, Esquire
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Connecticut Financial Center
000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
If to EMPLOYEE, at:
Xxxx X. Xxxxxx
Address on file with CiDRA
or at such other address as any party shall have furnished to the others
in writing. All such notices and other written communications shall be
effective (i) if
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mailed, seven (7) days after mailing (if mailed from outside the United
States, such mailing must be by airmail and said seven (7) days shall be
fourteen (14) days), (ii) if delivered, upon delivery, or (iii) if
faxed, one (1) business day after transmission and acknowledgement of
receipt by telephone or fax.
e. Delays or Omissions. No delay or omission to exercise any right, power
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or remedy accruing to either party hereto upon any breach or default of
the other party under this Agreement shall impair any such right, power
or remedy of such party nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or any similar
breach or default thereafter occurring. No waiver of any single breach
or default shall be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party hereto of any
breach or default under this Agreement or any waiver on the part of any
party hereto of any provisions or conditions of this Agreement must be
made in writing and shall be effective only to the extent specifically
set forth in such writing. All remedies, either under this Agreement or
by law or otherwise afforded to any party, shall be cumulative and not
alternative.
f. Separability. In case any provision of this Agreement shall be invalid,
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illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired
thereby.
g. Prior Agreements. This Employment Agreement supersedes all prior
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written or oral agreements related to EMPLOYEE's employment with CiDRA,
including but not limited to the employment agreement between EMPLOYEE
and CiDRA dated July 20, 1998.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the Effective Date.
CiDRA CORPORATION
/s/ Xxxx X. Xxxxxx /s/ F. Xxxxx Xxxxxx
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Xxxx X. Xxxxxx F. Xxxxx Xxxxxx
President & CEO
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