(IROBOT(R) LOGO)
January 23, 2007
Xx. Xxxxxxx X. Xxxxx
**
**
Re: Separation and Release Agreement
Dear Xxxx:
As you know, you have advised iRobot Corporation (the "Company") of your
intent to resign from employment with the Company. This letter confirms the
agreement that you have reached with the Company with respect to the terms for
your resignation, including the terms for a transitional period of employment
until your successor can be identified. The purpose of this Agreement is to
establish an amicable arrangement for transitioning and ending your employment
relationship, including, but not limited to, releasing the Company and related
persons or entities from any claims, permitting you to receive certain benefits,
and acknowledging your continuing obligations to the Company. If you agree to
the terms of this Agreement, you acknowledge that you are entering into this
Agreement voluntarily.
With those understandings, you and the Company agree as follows:
1. RESIGNATION FROM EMPLOYMENT.
(a) Provided that you perform your responsibilities diligently and do not
otherwise provide the Company with cause to terminate your employment, your
resignation from employment with the Company will be effective as of 5:00 p.m.
(ET) on March 26, 2007 (the "Separation Date"). You hereby agree to resign as
President of the Company's Home Robots division and as an executive officer of
the Company effective immediately. You hereby assume the role and title of
"Special Advisor" to the Chief Executive Officer at an annual base salary of
$125,000.00 to be paid in accordance with the Company's ordinary payroll
practices. You shall hold such position until the March 26, 2007 Separation
Date.
(b) As of the Separation Date, your salary will cease, and any entitlement
you have or might have under a Company provided benefit plan, program or
practice will terminate, except as required by federal or state law, or as
otherwise described below. The Company shall pay you, however, for all accrued
but unused vacation time through the Separation Date. In accordance with the
terms of your Executive Agreement with the Company, dated March 16, 2006
("Executive Agreement"), you are not entitled to any payments, salary
continuation, severance or other benefits because your resignation from
employment with the Company is not pursuant to Section 4 or Section 5 of your
Executive Agreement. You acknowledge that the Company has complied with its
obligations under your Executive Agreement through the date hereof.
2. HEALTH BENEFITS. The Separation Date shall be the date of the
"qualifying event" under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"). If you elect to continue medical insurance coverage after the
Separation Date in accordance with the provisions of
IROBOT CORPORATION
00 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000 - 000.000.0000 - Fax 000.000.0000
- xxx.xxxxxx.xxx
Separation & Release Agreement
January 23, 2007
Page 2 of 7
COBRA, you may do so at your own expense. A separate letter describing your
rights pursuant to COBRA will be sent to you on or after the Separation Date.
3. RESTRICTED COMMON STOCK REPURCHASE.
(a) On May 3, 2004, you and the Company entered into that certain
Restricted Stock Purchase Agreement ("Restricted Stock Agreement") pursuant to
which you purchased sixteen thousand one hundred and eighty-seven (16,187)
shares of the Company's common stock, par value $0.01 per share ("Common
Stock"). If you first provide the Company with an effective release in the form
attached hereto as Exhibit A, the Company shall exercise its repurchase right
pursuant to Section 4 of the Restricted Stock Agreement with respect to all the
then Unvested Shares (as defined in the Restricted Stock Agreement) held by you.
The Company will tender to you the aggregate Repurchase Price (as defined in the
Restricted Stock Agreement) for the Unvested Shares being repurchased. In
connection with the foregoing, you will execute and deliver the stock power
attached hereto as Exhibit B authorizing the transfer of the aggregate Unvested
Shares to the Company.
(b) Except as otherwise specified in Section 3(a) of this Agreement, the
terms and conditions of any and all other stock option agreements and or
restricted stock purchase agreements entered into between you and the Company
during the course of your employment are not modified in any way and remain
subject to the terms of the Amended and Restated 2001 Special Stock Plan of
iRobot Corporation or any applicable predecessor or successor plans.
Specifically, this Section 3 is not intended to modify in any respect the rights
to which you would otherwise be entitled if you were not to agree to this
Agreement as set forth in the June 12, 2003 Incentive Stock Option Agreement,
the July 1, 2003 Incentive Stock Option Agreement, the January 12, 2004
Restricted Stock Purchase Agreement and/or the February 28, 2004 Incentive Stock
Option Agreement entered into between you and the Company.
4. TAX TREATMENT. The Company shall undertake to make deductions,
withholdings and tax reports with respect to payments and benefits under this
Agreement to the extent that it reasonably and in good faith determines that it
is required to make such deductions, withholdings and tax reports. Payments
under this Agreement shall be in amounts net of any such deductions or
withholdings. Nothing in this Agreement shall be construed to require the
Company to make any payments to compensate you for any adverse tax effect
associated with any payments or benefits or for any deduction or withholding
from any payment or benefit.
5. RELEASE. In exchange for your continued employment, as described in
Section 1, which is in addition to anything of value which you otherwise are
entitled to receive, and other good and valuable consideration, the receipt of
which is hereby acknowledged, you and your representatives, agents, estate,
heirs, successors and assigns, absolutely and unconditionally hereby release,
remise, discharge, indemnify and hold harmless the Company (defined to include
the Company and/or any of its parents, subsidiaries or affiliates, predecessors,
successors or assigns, and its and their respective current and/or former
partners, directors, shareholders/stockholders, officers, employees, attorneys
and/or agents, all both individually and in their official capacities), from any
and all actions or causes of action, suits, claims, complaints, contracts,
liabilities, agreements, promises, contracts, torts, debts, damages,
controversies, judgments, rights and demands, whether existing or contingent,
known or unknown ("Claims"), which arise out of your employment with,
Separation & Release Agreement
January 23, 2007
Page 3 of 7
change in employment status with, and/or separation of employment from, the
Company. This release is intended by you to be all encompassing and to act as a
full and total release of any Claims, whether specifically enumerated herein or
not, that you may have or have had against the Company arising from conduct
occurring up to and through the date of this Agreement, including, but not
limited to, any Claims: relating to your employment by the Company or the
termination of your employment with the Company; of wrongful discharge; of
breach of contract; of retaliation or discrimination under federal, state or
local law (including, without limitation, Claims of age discrimination or
retaliation under the Age Discrimination in Employment Act, Claims of disability
discrimination or retaliation under the Americans with Disabilities Act, and
Claims of discrimination or retaliation under Title VII of the Civil Rights Act
of 1964); under any other federal or state statute; of defamation or other
torts; of violation of public policy; for wages, bonuses, incentive
compensation, stock, stock options, vacation pay or any other compensation or
benefits; and for damages or other remedies of any sort, including, without
limitation, compensatory damages, punitive damages, injunctive relief and
attorney's fees; provided, however, that this release shall not affect your
vested rights under the Company's Section 401(k) plan or your rights under this
Agreement. You agree that you shall not seek or accept damages of any nature,
other equitable or legal remedies for your own benefit, attorney's fees, or
costs from any of the Releasees with respect to any Claim released by this
Agreement. As a material inducement to the Company to enter into this Agreement,
you represent that you have not assigned to any third party and you have not
filed with any agency or court any Claim released by this Agreement.
6. ACKNOWLEDGEMENT AND AMENDMENT OF PRIOR AGREEMENTS.
(a) Invention, Confidentiality Agreement: You acknowledge and agree that on
or about March 26, 2003, you and the Company entered into an Invention,
Confidentiality Agreement, a copy of which is attached as Exhibit C. You further
acknowledge and agree that certain obligations set forth in that Invention,
Confidentiality Agreement will survive the termination of your employment with
the Company, including but not limited to the obligations set forth in Section
1.2 (Confidential Information).
(b) Noncompetition and Nonsolicitation Agreement: You acknowledge and agree
that on or about March 16, 2006, you and the Company entered into a
Noncompetition and Nonsolicitation Agreement, a copy of which is attached as
Exhibit D, for which you were provided good and adequate consideration. You
further acknowledge and agree that certain obligations set forth in that
Noncompetition and Nonsolicitation Agreement survive the termination of your
employment, including, but not limited to, the obligations set forth in Section
2 (Noncompetition), Section 3 (Nonsolicitation of Customers), Section 4
(Nonsolicitation of Employees) and Section 5 (Notice to Future Employers and of
Future Employment). In exchange for the additional good and valuable
consideration provided to you in this Agreement, you acknowledge the
enforceability of your continuing obligations as set forth in the Noncompetition
and Nonsolicitation Agreement and further agree that the first clause of the
first sentence contained in each of Sections 2(a) and 4(a) of the Noncompetition
and Nonsolicitation Agreement shall be amended to read as follows:
During the period of my employment by the Company and for eighteen
months following the termination of my employment, regardless of the
reasons for my termination,
Separation & Release Agreement
January 23, 2007
Page 4 of 7
In addition, the first clause of the first sentence contained in Section 3(a) of
the Noncompetition and Nonsolicitation Agreement shall be amended to read as
follows:
During the period of my employment by the Company and for eighteen
months following the termination of my employment, regardless of the
reasons for my termination, without the written consent of the
Company, which shall not be unreasonably denied,
7. COMPANY FILES, DOCUMENTS AND OTHER PROPERTY. On the Separation Date, you
will return to the Company all Company property and materials, including but not
limited to, personal computers, laptops, fax machines, scanners, copiers,
cellular phones, personal data assistants, Company credit cards and telephone
charge cards, manuals, building keys and passes, courtesy parking passes,
diskettes, intangible information stored on diskettes, software programs and
data compiled with the use of those programs, software passwords or codes,
tangible copies of trade secrets and confidential information, sales forecasts,
names and addresses of Company customers and potential customers, customer
lists, customer contacts, sales information, sales forecasts, memoranda, sales
brochures, business or marketing plans, reports, projections, and any and all
other information or property previously or currently held or used by you that
is or was related to your employment with the Company ("Company Property"). You
agree that in the event that you discover any other Company Property in your
possession after the Separation Date, you will immediately return such materials
to the Company.
8. NONDISPARAGEMENT. You agree not to make disparaging, critical or
otherwise detrimental comments to any person or entity concerning the Company,
its officers, directors or employees; the products, services or programs
provided or to be provided by the Company; the business affairs or the financial
condition of the Company; or the circumstances surrounding your employment
and/or separation of employment from the Company. You further agree not to take
any actions or conduct yourself in any way that would reasonably be expected to
affect adversely the reputation or goodwill of the Company or any of its current
or former officers, directors, shareholders, employees or agents. Nothing herein
shall prohibit or bar you from providing truthful testimony in any legal
proceeding or in communicating with any governmental agency or representative or
from making any truthful disclosure required, authorized or permitted under law;
provided, however, that in providing such testimony or making such disclosures
or communications, you will use your best efforts to ensure that this Section is
complied with to the maximum extent possible.
9. CONFIDENTIALITY OF THIS AGREEMENT. You shall maintain confidentiality
concerning the dollar amount and all other terms of this Agreement. Except as
required pursuant to legal process, you will not discuss the same with anyone
except your immediate family and accountants or attorneys when such disclosure
is necessary for the accountants or attorneys to render professional services.
Prior to any such disclosure that you may make, you shall secure from your
attorney or accountant their agreement to maintain the confidentiality of such
matters.
10. INFORMATION CONCERNING ACTUAL, POTENTIAL OR ALLEGED FINANCIAL
IRREGULARITIES. You represent that you are not aware of any actual, potential or
alleged financial irregularities concerning the Company.
Separation & Release Agreement
January 23, 2007
Page 5 of 7
11. FUTURE COOPERATION. You agree to cooperate reasonably with the Company
(including its outside counsel) in connection with the contemplation,
prosecution and defense of all phases of existing, past and future litigation
about which the Company believes you may have knowledge or information. You
further agree to make yourself available at mutually convenient times during and
outside of regular business hours as reasonably deemed necessary by the
Company's counsel. The Company shall not utilize this Section 11 to require you
to make yourself available to an extent that would unreasonably interfere with
full-time employment responsibilities that you may have after the Separation
Date. You agree to appear without the necessity of a subpoena to testify
truthfully in any legal proceedings in which the Company calls you as a witness.
The Company shall also reimburse you for any pre-approved reasonable business
travel expenses that you incur on the Company's behalf as a result of your
litigation cooperation services, after receipt of appropriate documentation
consistent with the Company's business expense reimbursement policy. You further
agree that you shall not voluntarily provide information to or otherwise
cooperate with any individual or entity that is contemplating or pursuing
litigation against any of the Releasees or that is undertaking any investigation
or review of any of the Releasees' activities or practices; provided, however,
that you may participate in or otherwise assist in any investigation or inquiry
conducted by the EEOC or the Massachusetts Commissions Against Discrimination.
Notwithstanding the foregoing, this provision shall not apply to the extent that
your breach of this Agreement consists of initiating a legal action in which you
contend that the release set forth in Section 5 is invalid, in whole or in part,
due to the provisions of 29 U.S.C. Section 626(f).
12. LEGAL REPRESENTATION. This Agreement is a legally binding document and
your signature will commit you to its terms. You acknowledge that you have been
advised to discuss all aspects of this Agreement with your attorney, that you
have carefully read and fully understand all of the provisions of this Agreement
and that you are voluntarily entering into this Agreement.
13. ABSENCE OF RELIANCE. In signing this Agreement, you are not relying
upon any promises or representations made by anyone at or on behalf of the
Company.
14. ENFORCEABILITY. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
15. WAIVER. No waiver of any provision of this Agreement shall be effective
unless made in writing and signed by the waiving party. The failure of any party
to require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
16. ENFORCEMENT.
(a) Jurisdiction. You and the Company hereby agree that the Superior Court
of the Commonwealth of Massachusetts and the United States District Court for
the District of
Separation & Release Agreement
January 23, 2007
Page 6 of 7
Massachusetts shall have the exclusive jurisdiction to consider any matters
related to this Agreement, including without limitation any claim for violation
of this Agreement. With respect to any such court action, you (i) submit to the
jurisdiction of such courts, (ii) consent to service of process, and (iii) waive
any other requirement (whether imposed by statute, rule of court or otherwise)
with respect to personal jurisdiction or venue.
(b) Relief. You agree that it would be difficult to measure any harm caused
to the Company that might result from any breach by you of your promises set
forth in this Agreement and its attachments, and that in any event money damages
would be an inadequate remedy for any such breach. Accordingly, you agree that
if you breach, or propose to breach, any portion of your obligations under this
Agreement or its attachments, the Company shall be entitled, in addition to all
other remedies it may have, to an injunction or other appropriate equitable
relief to restrain any such breach, without showing or proving any actual damage
to the Company and without the necessity of posting a bond. In the event that
the Company prevails in any action to enforce the Agreement or its attachments,
then you also shall be liable to the Company for attorney's fees and costs
incurred by the Company in enforcing such provision(s). In addition, in the
event that you breach any portion of Section 6(b), you agree that the
restrictions of Section 6(b) shall remain in effect for the period of such
breach notwithstanding the period of eighteen (18) months set forth above and
you further agree that the same restrictions shall apply for a period of
eighteen (18) months commencing effective upon the cessation of any such breach.
17. GOVERNING LAW; INTERPRETATION. This Agreement shall be interpreted and
enforced under the laws of the Commonwealth of Massachusetts, without regard to
conflict of law principles. In the event of any dispute, this Agreement is
intended by the parties to be construed as a whole, to be interpreted in
accordance with its fair meaning, and not to be construed strictly for or
against either you or the Company or the "drafter" of all or any portion of this
Agreement.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between you and the Company. This Agreement supersedes any previous agreements
or understandings between you and the Company, including, but not limited to,
the Executive Agreement, provided that, the stock agreements described in
Section 3, the Invention, Confidentiality Agreement described in Section 6(a)
(Exhibit C hereto) and the Noncompetition and Nonsolicitation Agreement
described in Section 6(b) (Exhibit D hereto) remain in full force and effect as
amended herein.
19. TIME FOR CONSIDERATION; EFFECTIVE DATE. You have the opportunity to
consider this Agreement for twenty-one (21) days before signing it. To accept
this Agreement, you must return a signed original of this Agreement so that it
is received by the undersigned at or before the expiration of this twenty-one
(21) day period. If you sign this Agreement within less than twenty-one (21)
days of the date of its delivery to you, you acknowledge by signing this
Agreement that such decision was entirely voluntary and that you had the
opportunity to consider this Agreement for the entire twenty-one (21) day
period. For the period of seven (7) days from the date when this Agreement
becomes fully executed, you have the right to revoke this Agreement by written
notice to the undersigned. For such a revocation to be effective, it must be
delivered so that it is received by the undersigned at or before the expiration
of the seven (7) day revocation period. This Agreement shall not become
effective or enforceable during the revocation period. This Agreement shall
become effective on the first business day following the expiration of the
revocation period (the "Effective Date").
Separation & Release Agreement
January 23, 2007
Page 7 of 7
If this letter correctly states the understanding we have reached, please
indicate your acceptance by countersigning the enclosed copy and returning it to
me.
Very truly yours,
/s/ Xxxxx Xxxxx
----------------------------------------
Xxxxx Xxxxx
Chief Executive Officer
iRobot Corporation
You are advised to consult with an attorney before signing this Agreement. The
foregoing is agreed to and accepted by:
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
Date: 1/23/07
EXHIBIT A
RELEASE AGREEMENT
In consideration of the Company's agreement to provide you with certain
separation benefits, as set forth in paragraph 3(a) of the Agreement dated
January 23,2007 between you and the Company (the "Agreement"), you and your
representatives, agents, estate, heirs, successors and assigns, absolutely and
unconditionally hereby release, remise, discharge, indemnify and hold harmless
the Company (defined to include the Company and/or any of its parents,
subsidiaries or affiliates, predecessors, successors or assigns, and its and
their respective current and/or former partners, directors,
shareholders/stockholders, officers, employees, attorneys and/or agents, all
both individually and in their official capacities), from any and all actions or
causes of action, suits, claims, complaints, contracts, liabilities, agreements,
promises, contracts, torts, debts, damages, controversies, judgments, rights and
demands, whether existing or contingent, known or unknown ("Claims"), which
arise out of your employment with, change in employment status with, and/or
separation of employment from, the Company. This release is intended by you to
be all encompassing and to act as a full and total release of any Claims,
whether specifically enumerated herein or not, that you may have or have had
against the Company arising from conduct occurring up to and through the date of
this Agreement, including, but not limited to, any claims: relating to your
employment by the Company or the termination of your employment with the
Company; of wrongful discharge; of breach of contract; of retaliation or
discrimination under federal, state or local law (including, without limitation,
Claims of age discrimination or retaliation under the Age Discrimination in
Employment Act, Claims of disability discrimination or retaliation under the
Americans with Disabilities Act, and Claims of discrimination or retaliation
under Title VII of the Civil Rights Act of 1964); under any other federal or
state statute; of defamation or other torts; of violation of public policy; for
wages, bonuses, incentive compensation, stock, stock options, vacation pay or
any other compensation or benefits; and for damages or other remedies of any
sort, including, without limitation, compensatory damages, punitive damages,
injunctive relief and attorney's fees; provided, however, that this release
shall not affect your vested rights under the Company's Section 401(k) plan or
your rights under this Agreement. You agree that you shall not seek or accept
damages of any nature, other equitable or legal remedies for your own benefit,
attorney's fees, or costs from any of the Releasees with respect to any Claim
released by this Agreement. As a material inducement to the Company to enter
into this Agreement, you represent that you have not assigned to any third party
and you have not filed with any agency or court any Claim released by this
Agreement.
You understand and agree that the terms of this Agreement are confidential and
you will not disclose to others the terms of this Agreement, except as otherwise
permitted by law and with the written consent of the Company, except that you
may disclose this information to your immediate family or for purposes of
securing professional, financial, tax or legal services, however, prior to that
disclosure you will inform such persons that this confidentiality clause is in
effect and that they are bound by it as well.
You affirm that you have read this Release carefully. You affirm that you have
been given at least 21 days to consider all of the terms of this Release, that
you have been advised to consult with an attorney prior to executing this
Release, and that you fully understand that by signing below you are voluntarily
giving up any right which you may have to xxx or bring any other claims against
the Released Parties, including any rights and claims under the Age
Discrimination in Employment Act. You also understand that you have a period of
seven days after signing this Release within which to
revoke his agreement, and that neither you nor any other person is obligated to
make any payments or provide any other benefits to you pursuant to the Agreement
until eight days have passed since your signing of this Release without your
signature having been revoked. Finally, you acknowledge that you have not been
forced or pressured in any manner whatsoever to sign this Release, and you agree
to all of its terms voluntarily.
/s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx
SUBSCRIBED AND SWORN TO ME THIS 23RD DAY OF JANUARY, 2007.
/s/ Xxxxx X. Xxxx
-------------------------------------
Notary Public
My commission expires:
12/27/2013
(SEAL)
EXHIBIT B
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto iRobot Corporation, a Delaware corporation (the "Company"), an aggregate of
__________ (__) shares of Common Stock, $0.01 par value per share, of the
Company, standing in the undersigned's name on the books of the Company,
represented by Common Stock Certificate Number(s) __________, and does hereby
irrevocably constitute and appoint the Company as his attorney-in-fact to
transfer said shares on the books of the Company with full power of substitution
in the premises. This Stock Power may be executed by facsimile signature.
DATED the _____ day of __________,2007.
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
EXHIBIT C
IROBOT CORP.
INVENTION, CONFIDENTIALITY AGREEMENT
(MANAGEMENT, TECHNICAL AND MARKETING/SALES)
Agreement dated as of the 26 day of March, 2003, by and between iRobot
Corp., a Delaware corporation (the "Company") having its principal office at 00
Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, and Xxxxxxx Xxxxx ("Employee"), residing at
**
In consideration of employment by the Company, Employee agrees as follows:
1. DEFINITIONS. The following terms will have the meanings specified below:
1.1 "PRODUCTS" means all computer programs and other products and services
developed and/or licensed, sold, leased or otherwise distributed or put into use
by the Company, during the term of Employee's employment.
1.2 "CONFIDENTIAL INFORMATION" means all valuable information of the
Company which may give the Company a competitive advantage and is not generally
known to others. It includes, without limitation, the Inventions (as defined in
Section 2.1 below), customer lists and data, computer programs and documentation
for such programs, information, strategies, internal reports and memoranda and
other data relating to the development, manufacturing, costs, marketing,
licensing, sales and uses of the Products, the source of supplies for the
Products, the Company's budget and strategic plans, and the identity and special
needs of customers for the Products. All Confidential Information and copies
thereof are the sole property of the Company.
1.3 "THIRD PARTY CONFIDENTIAL INFORMATION" means information or data,
furnished to the Company by third parties, as to which the Company has assumed
obligations of confidentiality.
1.4 "DOCUMENTS" means all tangible embodiments of Inventions, the Company's
Confidential Information, or Third Party Confidential Information, in written or
printed form, electronic storage media, or other tangible media of expression.
2. ASSIGNMENT OF INVENTIONS.
2.1 DISCLOSURE. Employee will promptly and fully disclose to the Company
any and all computer programs and documentation, inventions, discoveries,
developments, designs, data, know-how, concepts and ideas, whether or not
patentable, that are authored, conceived, developed, reduced to practice or
prepared by Employee alone or by Employee and others, during the period of
Employee's employment with the Company, relating to
either the Products or to any prospective activities of the Company known to
Employee as a consequence of employment with the Company (the "Inventions").
2.2 FURTHER ASSURANCES. Upon and/or following disclosure of each Invention
to the Company, Employee will, during Employee's employment and at any time
thereafter, at the request and cost of the Company, sign, execute, make and do
all such deeds, documents, acts and things as the Company and its duly
authorized agents may reasonably require to apply for, obtain and vest in the
name of the Company alone (unless the Company otherwise directs) letters patent,
copyrights or other analogous protection in any country throughout the world and
when so obtained or vested to renew and restore the same; and to defend any
opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
2.3 WORKS MADE FOR HIRE. Employee acknowledges that all computer programs,
documentation, works of authorship and copyrightable works prepared in whole or
in part by Employee in the course of Employee's employment, including without
limitation all Inventions, will be "works made for hire" under the Copyright Act
of 1976 (the "Copyright Act"), and will be the sole property of the Company and
the Company will be the sole author of such works within the meaning of the
Copyright Act. All such works, as well as all copies of such works in whatever
medium, will be owned exclusively by the Company and Employee hereby expressly
disclaims any and all interests in such works. If the copyright to any such work
would not be the property of the Company by operation of law, Employee hereby
and without further consideration, irrevocably assigns to the Company all right,
title and interest in such work, including all so-called "moral rights," and
will assist the Company and its nominees in every proper way, at the Company's
expense, to secure, maintain and defend for the Company's own benefit copyrights
and any extensions and renewals thereof on such work, including translations
thereof in any and all countries, such work to be and to remain the property of
the Company whether copyrighted or not. If the foregoing moral rights cannot be
so assigned under the applicable laws of the countries in which such rights
exist, Employee hereby waives such moral rights and consents to any action of
the Company that would violate such rights in the absence of such consent.
2.4 ASSIGNMENT; POWER OF ATTORNEY. Without in any way limiting the
foregoing, Employee hereby assigns to the Company all right, title and interest
to all Inventions, including but not limited to patent rights. In the event the
Company is unable, after reasonable effort, to secure Employee's signature on
any letters patent, copyright or other analogous protection relating to an
Invention, whether because of Employee's physical or mental incapacity or for
any other reason whatsoever, Employee hereby irrevocably designates and appoints
the Company and its duly authorized officers and agents as his agent and
attorney-in-fact, to act for and in his behalf and stead to execute and file any
such application or applications and to do all other lawfully permitted acts to
further the prosecution thereon with the same legal force and effect as if
executed by Employee.
-2-
2.5 EMPLOYEE DEVELOPMENTS. Employee represents that all developments,
inventions, works of authorship or other intellectual property rights to which
Employee claims ownership as of the date of this Agreement (the "Employee
Developments"), and which the parties agree are excluded from this Agreement,
are listed in Exhibit A. If no Employee Developments are listed in Exhibit A,
Employee represents that there are no Employee Developments at the time of
signing this Agreement.
3. CONFIDENTIAL INFORMATION.
3.1 CONFIDENTIALITY. Employee agrees that all Confidential Information as
defined above, whether furnished to Employee by the Company or developed solely
by Employee or with others and whether or not developed in whole or in part with
the use of other Confidential Information disclosed to Employee by the Company,
will be Confidential Information of the Company. Employee will not disclose any
Confidential Information to any third party (not including another employee of
the Company, unless specifically directed otherwise) during employment by the
Company or after termination thereof, nor use any Confidential Information after
termination of employment with the Company, except as permitted or directed by
the Company's President or Chief Executive Officer.
3.2 THIRD PARTIES. Except as directed by Employee's supervisor, Employee
will never, directly or indirectly, use, publish, disseminate or otherwise
disclose any Third Party Confidential Information.
4. USE AND RETURN OF DOCUMENTS.
Employee will not copy any Documents nor remove any Documents or copies
thereof from the Company's premises except to the extent necessary to his/her
employment and then only with the authorization of Employee's supervisor. Upon
the termination of Employee's employment with the Company, Employee will return
immediately to the Company any and all Documents and copies thereof then in
his/her possession or control.
5. PUBLICITY.
The Company, its subsidiaries and affiliates may use Employee's name and
likeness in or in connection with any technical or promotional material
published by them, without further compensation to Employee.
6. EMPLOYMENT.
6.1 EMPLOYMENT AT WILL. Employee agrees that this Agreement does not create
an obligation on the part of the Company to continue Employee's employment with
the Company. Employee agrees that Employee's employment with the Company is "at
will"
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and either the Company or Employee may terminate Employee's employment with the
Company at any time with or without cause.
6.2 NO OTHER AGREEMENT. Employee represents that he/she is not subject to
any agreement or obligation with any other party which would or could in any way
conflict with Employee's obligation under this agreement, except as set forth in
Exhibit B.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Agreement represents the sole agreement between
the Company and Employee and there are no other agreements oral or written,
related to employment with the Company or Employee's post-employment obligations
to the Company. Employee agrees that any modification of this Agreement by any
employee or agent of the Company will not be effective unless it is done by
written amendment signed by a corporate officer of the Company and Employee.
7.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, excluding its
conflicts of laws rules.
7.3 CONSENT TO JURISDICTION. Without limitation, Employee hereby consents
and submits to the jurisdiction of the state and federal courts in Massachusetts
and in the place where Employee's subsequent employer (at such time as suit is
commenced) is incorporated or has a principal place of business, in connection
with any alleged breach of this Agreement, and will accept service of process by
registered mail or the equivalent directed to Employee's last known address or
by such other means permitted by such court.
7.4 REMEDIES. Employee acknowledges that in the event of a breach of the
provisions of Sections 2, 3 or 4, the damages to the Company would be
irreparable and would entail inevitable wrongful use or disclosure of the
Confidential Information and/or Third Party Confidential Information. Employee
therefore agrees that in addition to provable damages and reasonable attorneys'
fees, the Company shall be entitled to enjoin any such breach in any competent
court.
7.5 INTERPRETATION. If anyone or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, it shall not affect any other provisions of this Agreement. If
any provision in this Agreement shall be held to be excessively broad, it shall
be construed by limiting it so as to be enforceable to the extent compatible
with applicable law.
7.6 ASSIGNMENT. This Agreement shall bind and inure to the benefit of the
Company and any successor of the Company by reorganization, merger,
consolidation or liquidation and any assignee of all or substantially all of its
business or assets, but otherwise this Agreement may not be assigned by the
Company or Employee.
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7.7 WAIVER OF BREACH. The waiver by any party of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
7.8 EXISTING EMPLOYMENT RELATIONSHIP. If this Agreement is executed by
Employee after the start of employment with the Company, it is deemed to have
been in effect since the inception of the employment relationship.
7.9 CONSULTANTS. The terms "employee", "employ" and "employment" shall be
deemed, for purposes of this Agreement, to include the terms "consultant",
"retained by" and "retention" in the event that the undersigned has been
retained by the Company as a consultant or other independent contractor rather
than as an employee.
7.10 AMENDMENTS. No amendment to this Agreement shall be effective unless
it is in writing and signed by a duly authorized representative of each party.
The term "Agreement", as used herein, includes any future written amendments,
modifications, or supplements made in accordance herewith.
EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS READ EACH PROVISION OF THIS AGREEMENT
CAREFULLY AND UNDERSTANDS, ACCEPTS AND AGREES TO BE BOUND BY EACH SUCH
PROVISION.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as an
agreement under seal, as of the date set forth above.
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxx
IROBOT CORP.
/s/ Xxxxx Xxxxxxx
----------------------------------------
Print Name: XXXXX XXXXXXX
Title: PRESIDENT
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EXHIBIT A
List of Employee Developments
[To be completed by Employee]
EXHIBIT B
List of Conflicting Agreements
[To be completed by Employee]
EXHIBIT D
FOR USE IN MASSACHUSETTS ONLY
NONCOMPETITION AND NONSOLICITATION AGREEMENT
RECITALS
A. iRobot Corporation (the "Company") is involved in an extremely
competitive industry in which confidential information and trade secrets are
valuable assets.
B. I understand the meaning and effect of the terms of this Agreement, and
due to the extremely competitive nature of the business in which the Company is
engaged, I agree that the restrictions contained herein are reasonable and
necessary.
C. This Agreement was made available to me prior to the date hereof so as
to provide me with an adequate amount of time in which to read the entire
Agreement and review its provisions with my counsel and advisors.
In consideration and as a condition of my employment or participation in the
Company's various stock option plans, I hereby agree as follows:
1. Best Efforts. During my employment with Company, I will devote my full
time, attention, energies, skills and efforts to the performance of any job
duties and responsibilities assigned to me by Company. Unless approved in
writing by the Company's CEO, I shall not engage in any other business activity,
whether or not such business activity is pursued for gain, profit, or other
pecuniary advantage, which may tend to (a) interfere with the performance of any
job duties and responsibilities assigned to me by Company, (b) create a conflict
of interest, or (c) be competitive with the business activities, products or
services of Company.
2. Noncompetition.
(a) During the period of my employment by the Company and for one year
following the termination of my employment, regardless of the reasons for my
termination, I shall not, anywhere in the United States, directly or indirectly,
alone or as an owner, member, manager, partner, officer, employee, director,
investor, lender, consultant or independent contractor of any entity, (i) accept
employment with any business or entity that is in competition with the products
or services being created, developed, manufactured, marketed, distributed or
sold by the Company, or (ii) engage in any business or activity, including but
not limited to, the design, manufacture or sale of robots, components for robots
or related products or services, that is in competition with the products or
services being created, developed, manufactured, marketed, distributed or sold
by the Company.
(b) My ownership of less than 1% of the equity securities of any
publicly traded company will not, in and of itself, violate the terms of this
Section.
(c) I agree that this covenant not to compete is reasonable and
necessary to protect Company's legitimate business interests, including, without
limitation, the confidential and professional information and trade secrets of
Company, the substantial relationships between
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Company and its customers and clients, and the goodwill of Company.
Additionally, I acknowledge and agree that Company provides its products and
services on a worldwide basis and, thus, the geographical limitation of this
covenant not to compete also is reasonable. I also agree that the 12-month
duration of this covenant not to compete with the Company is reasonable. I
further agree that the enforcement of this covenant not to compete, whether by
injunctive relief, damages, or otherwise, is in no way contrary to the public
policy.
3. Nonsolicitation of Customers.
(a) During the period of my employment by the Company and for one year
following the termination of my employment, regardless of the reasons for my
termination, I shall not, directly or indirectly, alone or as an owner, member,
manager, partner, officer, employee, director, investor, lender, consultant or
independent contractor of any entity, solicit or do business with any customer
of the Company or any potential customer of the Company (i) with whom I have had
contact or (ii) about whom I obtained information, or became familiar with
through the Company's confidential information and trade secrets, during the
course of my employment with the Company.
(b) I agree that this covenant not to solicit customers is reasonable
and necessary to protect Company's legitimate business interests, including,
without limitation, the confidential business or professional information and
trade secrets of Company, the substantial relationships between Company and its
customers, and the goodwill of Company. I also agree that the 12-month duration
of this covenant not to solicit customers is reasonable. I further agree that
the enforcement of this covenant not to solicit customers, whether by injunctive
relief, damages, or otherwise, is in no way contrary to the public health,
safety and welfare.
4. Nonsolicitation of Employees.
(a) During the period of my employment by the Company and for one year
following the termination of my employment, regardless of the reasons for the
termination, I will not, in any manner, directly or indirectly, hire or engage,
or assist any company or business organization by which I am employed or which
is directly or indirectly controlled by me to hire or engage, any person who is
or was employed by the Company (or is or was an agent, representative,
contractor, project consultant or consultant of the Company) at the time of my
termination or during the period of one year prior thereto or thereafter.
(b) During the period of my employment by the Company and for one year
following the termination of my employment, regardless of the reasons for the
termination, I will not, in any manner, directly or indirectly, solicit, recruit
or induce, or assist any company or business organization by which I am employed
or which is directly or indirectly controlled by me to solicit, recruit or
induce, any person who is or was employed by the Company (or is or was an agent,
representative, contractor, project consultant or consultant of the Company) at
the time of my termination or during the period of one year prior thereto or
thereafter, to leave his or her employment, relationship or engagement with the
Company.
iRobot Corporation
Non-Competition & Non-Solicitation Agreement
Rev. 04.2004
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(c) I agree that these covenants are reasonable and necessary to
protect Company's legitimate business interests, including, without limitation,
the confidential business or professional information and trade secrets of
Company, the substantial relationships between Company and its officers,
directors, employees, independent contractors, consultants, agents, and other
personnel or representatives. I also agree that the 12-month duration of these
covenants not to solicit and not to hire employees is reasonable. I further
agree that the enforcement of these covenants not to solicit or hire employees,
whether by injunctive relief, damages, or otherwise, is in no way contrary to
the public policy.
5. Notice to Future Employers and of Future Employment. I agree and
acknowledge that during my employment with Company and for the effective period
of the provisions set forth in Sections 2, 3 and 4, I will inform each
prospective new employer I may have, prior to accepting employment, of the
existence of this Agreement, and I shall provide each prospective employer with
a copy of this Agreement. I also agree and acknowledge that Company has the
right to independently contact any potential or actual future employer of mine
to notify the future employer of my obligations under this Agreement and provide
such future employer with a copy of this Agreement. Company shall also be
entitled to notify such actual or potential future employer of Company's
understanding of the requirements of this Agreement and what steps, if any,
Company intends to take to insure compliance with or enforcement of this
Agreement.
6. Employment At Will. I understand that this Agreement does not constitute
an implied or written employment contract and that my employment with the
Company is on an "at-will" basis. Accordingly, I understand that either the
Company or I may terminate my employment at any time, for any or no reason, with
or without prior notice.
7. Reimbursement. I hereby authorize the Company at any time during or
after the term of my employment to withhold from any amounts otherwise owed to
me (including, but not limited to, salary, bonus, commissions and expense
reimbursements) to the fullest extent permitted by applicable law: any and all
amounts due to the Company from me, including, but not limited to, cash
advances, travel advances, overpayments made by the Company to me, amounts
received by me due to the Company's error, unpaid personal credit card or phone
charges or any other debt I owe to the Company for any reason, including amounts
with respect to misuse or misappropriation of Company assets or breach of this
Agreement.
8. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in Massachusetts. This Agreement
shall be deemed to consist of a series of separate covenants by me, one for each
line of business carried on by the Company. The parties expressly agree that the
character, duration, and geography of this Agreement are reasonable in light of
the circumstances as they exist on the date upon which this Agreement has been
executed. However, should a court of competent jurisdiction nonetheless
determine at a later date that the character, duration or geography of this
Agreement is unreasonable in light of the circumstances as they then exist, then
it is my intention and agreement that this Agreement shall be construed by the
court in such a manner as to impose only those restrictions on my conduct that
are reasonable in light of the circumstances as they then exist and as
are necessary to assure the Company of the
iRobot Corporation
Non-Competition & Non-Solicitation Agreement
Rev. 04.2004
-4-
intended benefit of this Agreement to the maximum extent permitted by applicable
law. If, in any judicial proceeding, a court shall refuse to enforce all of the
separate covenants deemed included herein because, taken together they are more
extensive than necessary to assure the Company of the intended benefit of this
Agreement, it is expressly understood and agreed between the parties hereto that
those of such covenants (or portions thereof), which, if eliminated, would
permit the remaining separate covenants (or portions thereof) to be enforced in
such proceeding shall, for the purpose of such proceeding, be deemed eliminated
from the provisions hereof. Such modification or deletion is to apply only with
respect to the operation of such provision in the particular jurisdiction in
which such court determination is made.
9. Amendments; Waiver. Any amendment to or modification of this Agreement,
or any waiver of any provision hereof, shall be in writing and signed by the
Company. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of such provision or any other provision hereof.
10. Survival. This agreement shall be effective as of the date entered
below. My obligations under this Agreement shall survive the termination of my
employment regardless of the manner of such termination and shall be binding
upon my heirs, executors, administrators and legal representatives.
11. Assignment. The Company shall have the right to assign this Agreement
to its successors and assigns, and all covenants and agreements hereunder shall
inure to the benefit of and be enforceable by said successors or assigns. I may
not assign this Agreement.
12. Representations.
(a) I represent that I am free to enter into this Agreement, I have
not made and will not make any agreements in conflict with this Agreement, and I
shall not disclose or make available to the Company, or use for the Company's
benefit, any confidential information, including trade secrets, belonging to me
or any third party, including but not limited to, any former employer, partner,
co-venturer, client, customer or supplier. I further represent and warrant that
(i) I have delivered to the Company a copy of every agreement that may bear on
my employment with the Company, including but not limited to, any noncompetition
agreement, nondisclosure agreement or employment agreement, and (ii) I will
honor all such agreements.
(b) I understand and agree that because of the nature of the Company's
products, services and customers, because of my position with the Company and
because the Company's business is or may become international in scope, the
duration of the restrictive covenants contained herein are reasonable and
necessary. I also understand and agree that the information I may learn in the
course of my employment and the goodwill to which I may be exposed belong
exclusively to the Company and have implications and applications that are
international in scope. Accordingly, I agree that the restrictive covenants
contained herein are reasonable with respect to geographic scope.
iRobot Corporation
Non-Competition & Non-Solicitation Agreement
Rev. 04.2004
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(c) I represent that I have, and bring to my employment with the
Company, marketable skills that will enable me to secure employment and earn a
living for the duration of this Agreement without violating the restrictive
covenants contained herein. Therefore, I agree that any harm to me caused by the
enforcement of this Agreement will be outweighed by the harm to the Company
should this Agreement not be enforced.
(d) I agree that any breach of this Agreement by me will cause
irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder. The Company may apply for such injunctive
relief in any court of competent jurisdiction without the necessity of posting
any bond or other security.
13. Governing Law; Forum Selection Clause. This Agreement and any claims
arising out of this Agreement (or any other claims arising out of the
relationship between the parties) shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts and shall in all
respects be interpreted, enforced and governed under the internal and domestic
laws thereof, without giving effect to the Commonwealth's principles of
conflicts of laws. Any claims or legal actions by one party against the other
shall be commenced and maintained in any state or federal court located in
Massachusetts, and I hereby submit to the jurisdiction and venue of any such
court.
14. Entire Agreement. This Agreement sets forth the complete, sole and
entire agreement between the parties on the subject matter herein and supersedes
any and all other agreements, negotiations, discussions, proposals, or
understandings, whether oral or written, previously entered into, discussed or
considered by the parties. Notwithstanding the foregoing, this agreement does
not supercede the Invention and Confidentiality Agreement that I signed as a
condition of my employment.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
iRobot Corporation
Non-Competition & Non-Solicitation Agreement
Rev. 04.2004
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as a
sealed instrument as of the date first written below.
IROBOT CORPORATION EMPLOYEE
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxx Xxxxx
------------------------------------- ----------------------------------------
Signature Signature
XXXXX XXXXXXX Xxxxxxx Xxxxx
Name (Please Print) Name (Please Print)
Date: 3/16/06 Date: 3/15/06
Address: **
**
iRobot Corporation
Non-Competition & Non-Solicitation Agreement
Rev. 04.2004
