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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") made as of September 26,
1998, between Implant Sciences Corporation, a Massachusetts corporation (the
"Company"), and Xxxxxxx X. Xxxxxx, an individual residing at 0 Xxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000 (the "Employee"),
WITNESSETH THAT:
WHEREAS, the Company desires to employ Employee as one of its senior
executive officers for the period and upon and subject to the terms herein
provided; and
WHEREAS, the Company desires to be assured that Employee will not
compete with the Company for the period and within the geographical areas
hereinafter specified; and
WHEREAS, Employee is willing to agree to be employed by the Company for
the period and upon and subject to the terms herein provided;
NOW, THEREFORE, in consideration of the premises, the parties hereto
covenant and agree as follows:
Section 1. Term of Employment; Compensation. The Company agrees to
employ Employee from the date hereof until September __, 2003, as President and
Chief Executive Officer, with the responsibilities normally associated with such
position. The Company will pay Employee for his services during the term of the
Employee's employment hereunder at an annual rate of One Hundred Twenty Five
Thousand Dollars ($125,000), payable in arrears, in equal installments, in
accordance with standard Company practice, but in any event not less often than
monthly, subject only to such payroll and withholding deductions as are required
by law. This salary will be subject to annual review and increase (but not
decrease) by the Board of Directors of the Company or the Compensation Committee
thereof.
Section 2. Office and Duties. Employee shall have the usual duties of
President and Chief Executive Officer and shall have responsibility, subject to
the Board of Directors of the Company, for participating in the management and
direction of the Company's business and operations and shall perform such
specific other tasks, consistent with the Employee's position as President and
Chief Executive Officer, as may from time to time be assigned to the Employee by
the Board of Directors. Employee shall devote substantially all of his business
time, labor, skill, undivided attention and best ability to the performance of
his duties hereunder in a manner which will faithfully and diligently further
the business and interests of the Company. During the term of his employment,
Employee shall not directly or indirectly pursue any other business activity,
without the Company's prior written consent. Employee agrees that he will travel
to whatever extent is reasonably necessary in the conduct of the Company's
business.
Section 3. Expenses. Employee shall be entitled to reimbursement for
expenses incurred by him in connection with the performance of his duties
hereunder upon receipt of vouchers
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therefor in accordance with such procedures as the Company has heretofore or may
hereafter establish.
Section 4. Vacation During Employment. Employee shall be entitled to
such reasonable vacations as may be allowed by the Company in accordance with
general practices to be established, but in any event not less than four (4)
weeks during each twelve (12) month period.
Section 5. Additional Benefits. Nothing herein contained shall preclude
Employee, to the extent he is otherwise eligible, from participation in all
group insurance programs or other fringe benefit plans which the Company may
hereafter in its sole and absolute discretion make available generally to its
employees, but the Company shall not be required to establish or maintain any
such program or plan.
Section 6. Termination of Employment. Notwithstanding any other
provision of this Agreement, Employee's employment may be terminated:
(a) By the Company in the event of his failure, refusal or
inability satisfactorily to perform the services required of him hereby, or to
carry out any proper direction by the Company with respect to the services to be
rendered by him hereunder or the manner of rendering such services, his wilful
misconduct in the performance of his duties hereunder, or his conviction of a
crime involving moral turpitude.
(b) By the Company upon thirty (30) days' notice to Employee
if he should be prevented by illness, accident or other disability (mental or
physical) from discharging his duties hereunder for one or more periods totaling
three (3) months during any consecutive twelve (12) month period.
(c) By either the Company or Employee for any material breach
by the other of the terms hereof, but only if such breach continues for ten (10)
days (or such longer period as is reasonably required to cure such breach with
diligent and good faith effort) after written notice to the other specifying the
breach relied on for such termination.
(d) In the event of Employee's death during the term of his
employment, the Company's obligation to pay further compensation hereunder shall
cease forthwith, except that Employee's legal representative shall be entitled
to receive his fixed compensation for the period up to last month after the
month in which such death shall have occurred.
(e) By the Company without cause upon not less than thirty
(30) days' written notice in which event the Company shall pay to Employee an
amount equal to twelve (12) months salary specified based on the annual in the
second sentence of Section 1.
Section 7. Disclosure and Assignment of Intellectual Property. Employee
shall promptly disclose to the Company and any successor or assign of the
Company, and grant to the Company, and its successors and assigns (without any
separate remuneration or compensation other than that
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received by him from time to time in the course of his employment) his entire
right, title and interest throughout the world in and to all research,
information, inventions, designs, procedures, developments, discoveries,
improvements, patents and applications therefor, trademarks and applications
therefor, copyrights and applications therefor, trade secrets, drawings, plans,
systems, methods, specifications, and all other manufacturing, engineering,
technical, research and development data and know-how (herein sometimes
"Intellectual Property") made, conceived, developed and/or acquired by him
solely or jointly with others during the period of his employment with the
Company or within one year thereafter, which relate to the manufacture,
production or processing of any products developed or sold by the Company during
the term of this Agreement or which are within the scope of or usable in
connection with the Company's business as it may, from time to time, hereafter
be conducted or proposed to be conducted. (It is understood and agreed that
Employee has heretofore disclosed to the Company, and assigned to it, all
Intellectual Property now known to him over which he has any control.) Employee
agrees to execute all appropriate patent applications securing all United States
and foreign patents on all Intellectual Property, and to do, execute and deliver
any and all acts and instruments that may be necessary or proper to vest all
Intellectual Property in the Company or its nominee or designee and to enable
the Company, or its nominee or designee, to obtain all such patents; and
Employee agrees to render to the Company, or its nominee or designee, all such
assistance as it may require in the prosecution of all such patent applications
and applications for the re-issue of such patents, and in the prosecution or
defense of all interferences which may be declared involving any of said patent
applications or patents, but the expense of all such assignments and patent
applications, or all other proceedings referred to herein above, shall be borne
by the Company. Employee shall be entitled to fair and reasonable compensation
for any such assistance requested by the Company or its nominee or designee and
furnished by him after the termination of his employment.
Section 8. Confidentiality. Employee shall not, either during the
period of his employment with the Company or thereafter, reveal or disclose to
any person outside the Company or use for his own benefit, without the Company's
specific written authorization, whether by private communication or by public
address or publication or otherwise, any information not already lawfully
available to the public concerning any Intellectual Property, or any marketing
technique or cost method, or any customer, mailing or supplier list, whether or
not supplied by the Company, and whether or not made, developed and/or conceived
by Employee or by others in the employ of the Company. All originals and copies
of any of the foregoing, relating to the business of the Company, however and
whenever produced, shall be the sole property of the Company, not to be removed
from the premises or custody of the Company without in each instance first
obtaining written consent or authorization of the Company. Upon the termination
of Employee's employment in any manner or for any reason, Employee shall
promptly surrender to the Company all copies of any of the foregoing, together
with any other documents, materials, data, information and equipment belonging
to or relating to the Company's business and in his possession, custody or
control, and Employee shall not thereafter retain or deliver to any other
person, any of the foregoing or any summary or memorandum thereof.
Section 9. Restriction. The Company has invested and may in the future
be required to invest substantial sums of money, directly or indirectly, to
continue and expand the business
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heretofore conducted by it and in connection therewith, and as Employee
recognizes that the Company would be substantially injured by Employee
disclosing to others, or by Employee using for his own benefit, any Intellectual
Property or any of the other types of information referred to in Section 8 or
other confidential or secret information he has obtained or shall obtain as an
employee of the Company, or which he may now possess and which he has made
available to the Company, Employee agrees that during the period of his
employment hereunder and for a period ending two (2) years after the term of
this Agreement:
(a) Neither he nor any member of his family will be
interested, directly or indirectly, as an investor in any other business or
enterprise in the United States similar to that of the Company or in competition
with the Company (except as an investor in securities listed on a national
securities exchange or actively traded over the counter so long as such
investments are in amounts not significant as compared to his total investments
or to the aggregate of the outstanding securities of the issuer of the same
class or issue); and
(b) He will not, directly or indirectly, for his own account
or as employee, officer, director, partner, joint venturer or otherwise, engage
within the United States or elsewhere, in any phase of the business of providing
surface modification services to the medical device and semiconductor
industries.
Employee and the Company are of the belief that the period of time and
the area herein specified are reasonable, in view of the nature of the business
in which the Company is engaged and proposes to engage, the state of its product
development and Employee's knowledge of this business. However, if such period
or such area should be adjudged unreasonable in any judicial proceeding, then
the period of time shall be reduced by such number of months or such area shall
be reduced by elimination of such portion of such area, or both, as are deemed
unreasonable, so that this covenant may be enforced in such area and during such
period of time as is adjudged to be reasonable.
Section 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given when delivered or
three (3) days after mailing if mailed by first-class, registered or certified
mail, postage prepaid, addressed (a) if to Employee, at 0 Xxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000, and/or to such other person(s) or address(es) as Employee
shall have furnished to the Company in writing; and (b) if to the Company,
Implant Sciences Corporation, 000 Xxxxxxx Xxxx #0, Xxxxxxxxx, XX 00000, or to
such other person(s) or address(es) as the Company shall have furnished to
Employee in writing.
Section 11. Assignability. In the event that the Company shall be
merged with, or consolidated into, any other corporation, or in the event that
it shall sell and transfer substantially all of its assets to another
corporation, the terms of this Agreement shall inure to the benefit of, and be
assumed by, the corporation resulting from such merger or consolidation, or to
which the Company's assets shall be sold and transferred.
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Section 12. Entire Agreement. This Agreement contains the entire
agreement between the Company and Employee with respect to the subject matter
thereof and there have been no oral or other agreement of any kind whatsoever as
a condition precedent or ) inducement to the signing of this Agreement or
otherwise concerning this Agreement or the subject matter hereof., or a
settlement agreement between parties otherwise authorized by the producing
party.
Section 13. Expenses. Each party shall pay its own expenses incident to
the performance or enforcement of this Agreement, including all fees and
expenses of its counsel for all activities of such counsel undertaken pursuant
to this Agreement, except as otherwise herein specifically provided.
Section 14. Equitable Relief. Employee recognizes and agrees that the
Company's remedy at law for any breach of the provisions of Sections 7, 8 or 9
hereof would be inadequate, and he agrees that for breach of such provisions,
the Company shall, in addition to such other remedies as may be available to it
at law or in equity or as provided in this Agreement, be entitled to injunctive
relief and to enforce its rights by an action for specific performance to the
extent permitted by law. Should Employee engage in any activities prohibited by
this Agreement, he agrees to pay over to the Company all compensation,
remunerations or moneys or property of any sort received in connection with such
activities; such payment shall not impair any rights or remedies of the Company
or obligations or liabilities of Employee which such parties may have under this
Agreement or applicable law.
Section 15. Waivers and Further Agreements. Any waiver of any terms or
conditions of this Agreement shall not operate as a waiver of any other breach
of such terms or conditions or any other term or condition, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or
of any other provision hereof; provided, however, that no such written waiver,
unless it, by its own terms, explicitly provides to the contrary, shall be
construed to effect a continuing waiver of the provision being waived and no
such waiver in any instance shall constitute a waiver in any other instance or
for any other purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to require full
compliance with such provision. Each of the parties hereto agrees to execute all
such further instruments and documents and to take all such further action as
the other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
Section 16. Amendments. This Agreement may not be amended, nor shall
any waiver, change, modification, consent or discharge be effected except by an
instrument in writing executed by or on behalf of the party against whom
enforcement of any waiver, change, modification, consent or discharge is sought.
Section 17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and in pleading or
proving any provision of this Agreement, it shall not be necessary to produce
more than one of such counterparts.
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Section 18. Section Headings. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 19. General Provisions.
(a) Employee further agrees that his obligations under
Sections 7, 8 and 9 of this Agreement shall be binding upon him irrespective of
the duration of his employment by the Company, the reasons for any cessation of
his employment by the Company, or the amount of his compensation and shall
survive the termination of this Agreement (whether such termination is by the
Company, by Employee, upon expiration of this Agreement or otherwise).
(b) Employee represents and warrants to the Company that he is
not now under any obligations to any person, firm or corporation, and has no
other interest which is inconsistent or in conflict with this Agreement, or
which would prevent, limit or impair, in any way, the performance by him of any
of the covenants or his duties in his said employment.
Section 20. Gender. Whenever used herein, the singular number shall
include the plural, the plural shall include the singular, and the use of any
gender shall include all genders.
Section 21. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the law (other than the law governing
conflict of law questions) of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of the date first above written.
IMPLANT SCIENCES CORPORATION
By: /s/ XXXXXXX XXXXXXX-XXXXX /s/ XXXXXXX X. XXXXXX
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Employee
Name:
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Title: CHIEF FINANCIAL OFFICER
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