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EXHIBIT 10d
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KEY EMPLOYEE AGREEMENT
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To: Xxxx X. Xxxxxx, Ph.D. As of October 13, 1995
Triple I Corporation
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The undersigned, Triple I Corporation, a Delaware corporation (the
"Company"), in consideration of the salary and benefits provided you herein, and
for other good and valuable consideration, the sufficiency and receipt whereof
are hereby acknowledged, hereby agrees with you as follows:
l. Position and Responsibilities.
1.1 You shall serve as Chief Executive Officer of the Company, and
shall perform the duties customarily associated with such capacity from time to
time and at such executive offices of the Company (provided that such offices
are within a thirty (30) mile radius of Lowell, Massachusetts) as the Company
shall designate are appropriate and necessary in connection with such
employment.
1.2 You will, to the best of your ability, devote your full time
and best efforts to the performance of your duties hereunder and the business
and affairs of the Company. You agree to perform such executive duties as may be
assigned to you by or on authority of the Company's Board of Directors from time
to time.
1.3 You will duly, punctually and faithfully perform and observe
any and all rules and regulations which the Company may now or shall hereafter
establish governing the conduct of its business.
2. Term of Employment; Change in Control.
2.1 The initial term of this Agreement shall be from the date
hereof until December 31, 1998. Thereafter, this Agreement shall be
automatically renewed for successive periods of three (3) years, unless the
Company shall give you not less than six (6) months written notice of
non-renewal. You may terminate your employment pursuant to this Agreement at any
time after giving the Company three (3) months' notice. Your employment with the
Company may be terminated at any time as provided in Section 2.2.
2.2 The Company shall have the right, on written notice to you, to
terminate your employment:
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(a) immediately at any time for "cause" as defined herein; or
(b) at any time without cause, provided the Company shall be
obligated to pay to you as severance pay an amount equal to your
"Compensation Package" for a period of three (3) years following the
date of termination of your employment (which Compensation Package
shall include your Base Salary and all other benefits as set forth on
Exhibit A hereto, including but not limited to your most recent bonus
for the prior fiscal year annualized over the remaining term of this
Agreement). Such sums shall be reduced by applicable taxes and other
required withholdings and any amounts you may owe to the Company.
2.3 For purposes of Section 2.2, the term "cause" shall include
(i) the falseness of any warranty or representation by you herein, or (ii) the
willful breach of your obligations under this Agreement or your duties as an
employee of the Company, or (iii) fraud or embezzlement involving the Company,
their employees, suppliers or customers, or (iv) conviction on a felony charge.
2.4 In the event of a "Change of Control" in the Company, you will
have the option to terminate your employment subject to the provisions of
Section 2.1 herein. If, within nine (9) months of a Change in Control, (i) your
duties are reduced, or (ii) you decide to terminate your employment, or (iii)
you are terminated by the Company, then you shall be entitled to receive: (x) an
amount equal to your Compensation Package (as described in Exhibit "A") for a
period of one (1) year, payable in a lump sum; and (y) the immediate removal of
all loan guarantees and the repayment of all loans placed by you on behalf of or
for the benefit of the Company. For purposes of this Agreement, a "Change in
Control" shall be defined as the acquisition (in or as a result of a single
transaction or an integrated series of transactions) by any person or entity not
a current stockholder of the Company or affiliated with the Company, fifty
percent (50%) or more of the Common Stock of the Company outstanding immediately
before the Change of Control. a Change of Control shall not include a merger or
the exchange of shares between the Company and the shareholders of Orbis, Inc.,
a Rhode Island corporation, or any public offering of the Company's securities
as approved by the Company's Board of Directors.
3. Compensation. You shall receive the compensation and benefits set
forth on Exhibit A hereto ("Compensation") for all services to be rendered by
you hereunder and for your transfer of property rights pursuant to an agreement
relating to proprietary information and inventions of even date herewith
attached hereto as Exhibit C between you and the Company (the "Proprietary
Information and Inventions Agreement").
4. Other Activities During Employment. You hereby agree that, except
as disclosed on Exhibit B hereto, during your employment hereunder, you will
not, directly or indirectly, engage (a) individually, (b) as an officer, (c) as
a director, (d) as an employee, (e) as a consultant, (f) as an advisor, (g) as
an agent (whether a salesperson or otherwise), (h) as a broker, or (i) as a
partner, coventurer, stockholder or other proprietor owning directly or
indirectly more than five percent (5%)
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interest, in any firm, corporation, partnership, trust, association, or other
organization which is engaged in any line of business engaged in or under
demonstrable development by the Company (such firm, corporation, partnership,
trust, association, or other organization being hereinafter referred to as a
"Prohibited Enterprise"). Except as may be shown on Exhibit B hereto, you hereby
represent that you are not engaged in any of the foregoing capacities (a)
through (i) in any Prohibited Enterprise.
5. Former Employers.
5.1 You represent and warrant that your employment by the Company
will not conflict with and will not be constrained by any prior or current
employment, consulting agreement or relationship whether oral or written. You
represent and warrant that you do not possess confidential information arising
out of any such employment, consulting agreement or relationship which, in your
best judgment, would be utilized in connection with your employment by the
Company in the absence of Section 5.2.
5.2 If, in spite of the second sentence of Section 5.1, you should
find that confidential information belonging to any other person or entity might
be usable in connection with the Company's business, you will not intentionally
disclose to the Company or use on behalf of the Company any confidential
information belonging to any of your former employers; but during your
employment by the Company you will use in the performance of your duties all
information which is generally known and used by persons with training and
experience comparable to your own all information which is common knowledge in
the industry or otherwise legally in the public domain.
6. Proprietary Information and Inventions. You agree to execute,
deliver and be bound by the provisions of the Proprietary Information and
Inventions Agreement attached hereto as Exhibit C and incorporated herein.
7. Post-Employment Activities.
7.1 For a period of one (1) year after the termination or
expiration, for any reason, of your employment with the Company hereunder,
absent the Company's prior written approval, you will not directly or indirectly
engage in activities similar or reasonably related to those in which you shall
have engaged hereunder during the two years immediately preceding termination or
expiration, nor render services similar or reasonably related to those which you
shall have rendered hereunder during such two years, to any person or entity
whether now existing or hereafter established which directly competes with (or
proposes or plans to directly compete with) the Company ("Direct Competitor") in
any line of business engaged in or under development by the Company. Nor shall
you entice, induce or encourage any of the Company's other employees to engage
in any activity which, were it done by you, would violate any provision of the
Proprietary Information and Inventions Agreement or this Section 7. As used in
this Section 7.1, the term "any line of business engaged in or under development
by the Company" shall be applied as at the date of termination of
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your employment, or, if later, as at the date of termination of any
post-employment consulting arrangement.
7.2 No provision of this Agreement shall be construed to preclude
you from performing the same services which the Company hereby retains you to
perform for any person or entity which is not a Direct Competitor of the Company
upon the expiration or termination of your employment (or any post-employment
consulting arrangement) so long as you do not thereby violate any term of the
Proprietary Information and Inventions Agreement.
8. Remedies. Your obligations under the Proprietary Information and
Inventions Agreement and the provisions of Sections 6, 7, 8 and 9 of this
Agreement (as modified by Section 10, if applicable) shall survive the
expiration or termination of your employment (whether through your resignation
or otherwise) with the Company. You acknowledge that a remedy at law for any
breach or threatened breach by you of the provisions of the Proprietary
Information and Inventions Agreement or Section 7 would be inadequate and you
therefore agree that the Company shall be entitled to such injunctive relief in
case of any such breach or threatened breach.
9. Assignment. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of any successor or
successors of the Company by reorganization, merger or consolidation and any
assignee of all or substantially all of its business and properties, but, except
as to any such successor or assignee of the Company, neither this Agreement nor
any rights or benefits hereunder may be assigned by the Company or by you,
except by operation of law.
10. Interpretation. IT IS THE INTENT OF THE PARTIES THAT in case any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT in case any one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by limiting and reducing it as determined by a court of competent
jurisdiction, so as to be enforceable to the maximum extent compatible with
applicable law.
11. Notices. Any notice which the Company is required to or may desire
to give you shall be given by personal delivery or registered or certified mail,
return receipt requested, addressed to you at your address of record with the
Company, or at such other place as you may from time to time designate in
writing. Any notice which you are required or may desire to give to the Company
hereunder shall be given by personal delivery or by registered or certified
mail, return receipt requested, addressed to the Company at its principal
office, or at such other office as the Company may from time to time designate
in writing. The date of personal delivery or the date of mailing any notice
under this Section 11 shall be deemed to be the date of delivery thereof.
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12. Waivers. If either party should waive any breach of any provision
of this Agreement, such party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
13. Complete Agreement; Amendments. The foregoing including
Exhibits A, B and C hereto, is the entire agreement of the parties with respect
to the subject matter hereof, superseding any previous oral or written
communications, representations, understandings, or agreements with the Company
or any officer or representative thereof. Any amendment to this Agreement or
waiver by the Company of any right hereunder shall be effective only if
evidenced by a written instrument executed by the parties hereto, upon
authorization of the Company's Board of Directors.
14. Headings. The headings of the Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning of this Agreement.
15. Counterparts. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
16. Governing Law. This Agreement shall be governed by and construed
under Massachusetts law, without regard to the conflict of laws principles
thereof.
If you are in agreement with the foregoing, please sign your name below
and also at the bottom of the Proprietary Information and Inventions Agreement,
whereupon this Agreement shall become binding in accordance with its terms.
Please then return this Agreement to the Company. (You may retain for your
records the accompanying counterpart of this Agreement enclosed herewith).
Very truly yours,
TRIPLE I CORPORATION
By: ____________________________
(Duly Authorized)
Accepted and Agreed:
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Xxxx X. Xxxxxx
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EXHIBIT A
EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF XXXX X. XXXXXX
l. Term. The term of the Agreement to which this Exhibit A is annexed and
incorporated shall be until December 31, 1998.
2. Compensation.
(a) Base Salary. Your base salary shall be $110,500 per year.
(b) Car Allowance: Monthly car allowance of $700.00.
(c) Bonuses. You shall be entitled to such bonuses and salary increases
as the Board of Directors, or Compensation Committee, as the case
may be, may determine.
(d) Annual Review. Your compensation package shall be reviewed annually
by the Board of Directors, or Compensation Committee, as the case
may be, of the Company.
3. Vacation. You shall be entitled to all legal and religious holidays, and
four (4) weeks paid vacation in accordance with Company policy.
4. Insurance and Benefits. You shall be eligible for participation in any
health or other group insurance plan which may be established by the
Company or which the Company is required to maintain by law.
5. Sick Days and Personal Days. You shall be entitled to compensation for
sick days and personal days in accordance with Company policy.
6. Expenses. The Company shall reimburse you for all reasonable and ordinary
business expenses incurred by you in the scope of your employment
hereunder.
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EXHIBIT B
OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS OF
XXXX X. XXXXXX
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EXHIBIT C
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PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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To: Triple I Corporation
One Xxxxxx Research Center
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000 As of October 13, 1995
The undersigned, in consideration of and as a condition of my
employment or continued employment by you and/or by companies which you own,
control, or are affiliated with or their successors in business (collectively,
the "Company"), hereby agrees as follows:
1. Confidentiality. I agree to keep confidential, except as the
Company may otherwise consent in writing, and, except for the Company's benefit,
not to disclose or make any use of at any time either during or subsequent to my
employment, any Inventions (as hereinafter defined), trade secrets, confidential
information, knowledge, data or other information of the Company relating to
products, processes, know-how, designs, formulas, test data, customer lists,
business plans, marketing plans and strategies, pricing strategies, or other
subject matter pertaining to any business of the Company or any of its
affiliates, which I may produce, obtain, or otherwise acquire during the course
of my employment, except as herein provided. I further agree not to deliver,
reproduce or in any way allow any such trade secrets, confidential information,
knowledge, data or other information, or any documentation relating thereto, to
be delivered to or used by any third parties without specific direction or
consent of a duly authorized representative of the Company.
2. Conflicting Employment; Return of Confidential Material. I agree
that during my employment with the Company I will not engage in any other
employment, occupation, consulting or other activity relating to the business in
which the Company is now or may hereafter become engaged, or which would
otherwise conflict with my obligations to the Company. In the event my
employment with the Company terminates for any reason whatsoever, I agree to
promptly surrender and deliver to the Company all records, materials, equipment,
drawings, documents and data which I may obtain or produce during the course of
my employment, and I will not take with me any description containing or
pertaining to any confidential information, knowledge or data of the Company
which I may produce or obtain during the course of my employment.
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3. Assignment of Inventions.
3.1 I hereby acknowledge and agree that the Company is the owner
of all Inventions. In order to protect the Company's rights to such Inventions,
by executing this Agreement I hereby irrevocably assign to the Company all my
right, title and interest in and to all Inventions to the Company.
3.2 For purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, technologies, devices, or improvements in any
of the foregoing or other ideas, whether or not patentable and whether or not
reduced to practice, made or conceived by me (whether solely or jointly with
others) during the period of my employment with the Company which relate in any
manner to the actual or demonstrably anticipated business, work, or research and
development of the Company, or result from or are suggested by any task assigned
to me or any work performed by me for or on behalf of the Company.
3.3 Any discovery, process, design, technology, device, or
improvement in any of the foregoing or other ideas, whether or not patentable
and whether or not reduced to practice, made or conceived by me (whether solely
or jointly with others) which I develop entirely on my own time not using any of
the Company's equipment, supplies, facilities, or trade secret information
("Personal Invention") is excluded from this Agreement provided such Personal
Invention (a) does not relate to the actual or demonstrably anticipated
business, research and development of the Company, and (b) does not result,
directly or indirectly, from any work performed by me for the Company.
4. Disclosure of Inventions. I agree that in connection with any
Invention, I will promptly disclose such Invention to my immediate superior at
the Company in order to permit the Company to enforce its property rights to
such Invention in accordance with this Agreement. My disclosure shall be
received in confidence by the Company.
5. Patents and Copyrights; Execution of Documents.
5.1 Upon request, I agree to assist the Company or its nominee (at
its expense) during and at any time subsequent to my employment in every
reasonable way to obtain for its own benefit patents and copyrights for
Inventions in any and all countries. Such patents and copyrights shall be and
remain the sole and exclusive property of the Company or its nominee. I agree to
perform such lawful acts as the Company deems to be necessary to allow it to
exercise all right, title and interest in and to such patents and copyrights.
5.2 In connection with this Agreement, I agree to execute,
acknowledge and deliver to the Company or its nominee upon request and at its
expense all documents, including assignments of title, patent or copyright
applications, assignments of such applications, assignments of patents or
copyrights upon issuance, as the Company may determine necessary or desirable to
protect the Company's or its nominee's interest in Inventions, and/or to use in
obtaining patents or
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copyrights in any and all countries and to vest title thereto in the Company or
its nominee to any of the foregoing.
6. Maintenance of Records. I agree to keep and maintain adequate and
current written records of all Inventions made by me (in the form of notes,
sketches, drawings and other records as may be specified by the Company), which
records shall be available to and remain the sole property of the Company at all
times.
7. Prior Inventions. It is understood that all Personal Inventions,
if any, whether patented or unpatented, which I made prior to my employment by
the Company, are excluded from this Agreement. To preclude any possible
uncertainty, I have set forth on Schedule A attached hereto a complete list of
all of my prior Personal Inventions, including numbers of all patents and patent
applications and a brief description of all unpatented Personal Inventions which
are not the property of a previous employer. I represent and covenant that the
list is complete and that, if no items are on the list, I have no such prior
Personal Inventions. I agree to notify the Company in writing before I make any
disclosure or perform any work on behalf of the Company which appears to
threaten or conflict with proprietary rights I claim in any Personal Invention.
In the event of my failure to give such notice, I agree that I will make no
claim against the Company with respect to any such Personal Invention.
8. Other Obligations. I acknowledge that the Company from time to
time may have agreements with other persons or with the U.S. Government or
agencies thereof, which impose obligations or restrictions on the Company
regarding Inventions made during the course of work thereunder or regarding the
confidential nature of such work. I agree to be bound by all such obligations
and restrictions and to take all action necessary to discharge the Company's
obligations.
9. Trade Secrets of Others. I represent that my performance of all
the terms of this Agreement and my position as an employee of the Company do not
and will not breach any agreement to keep confidential proprietary information,
knowledge or data acquired by me in confidence or in trust prior to my
employment with the Company, and I will not disclose to the Company, or induce
the Company to use, any confidential or proprietary information or material
belonging to any previous employer or others. I agree not to enter into any
agreement either written or oral in conflict herewith.
10. Modification. I agree that any subsequent change or changes in my
employment duties, salary or compensation or, if applicable, in any Employment
Agreement between the Company and me, shall not affect the validity or scope of
this Agreement.
11. Successors and Assigns. This Agreement shall be binding upon my
heirs, executors, administrators or other legal representatives and is for the
benefit of the Company, its successors and assigns.
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12. Interpretation. IT IS THE INTENT OF THE PARTIES THAT in case any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT in case any one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by limiting and reducing it in accordance with a judgment of a court
of competent jurisdiction, so as to be enforceable to the extent compatible with
applicable law.
13. Waivers. If either party should waive any breach of any provision
of this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
14. Complete Agreement, Amendments. I acknowledge receipt of this
Agreement, and agree that with respect to the subject matter thereof it is my
entire agreement with the Company, superseding any previous oral or written
communications, representations, understandings, or agreements with the Company
or any officer or representative thereof. Any amendment to this Agreement or
waiver by either party of any right hereunder shall be effective only if
evidenced by a written instrument executed by the parties hereto, and, in the
case of the Company, upon written authorization of the Company's Board of
Directors.
15. Headings. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
16. Counterparts. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
17. Governing Law. This Agreement shall be governed and construed
under Massachusetts law, without regard to the conflict of law principles
thereof.
Very truly yours,
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Xxxx X. Xxxxxx
Accepted and Agreed:
Triple I Corporation
By: ________________________________
(Duly Authorized)
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SCHEDULE A
LIST OF PRIOR INVENTIONS
Identifying Number or
Title Date Brief Description
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