Exhibit 10.1
Employment Agreement President Xxxxx X. Xxxxx
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 5th day of October, 2001, by and between Micron
Products Inc., a Massachusetts corporation having an office and place of
business at 00 Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter
referred to as the "Company") and Xxxxx X. Xxxxx, an individual residing at 0
Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as
"Employee").
W I T N E S S E T H
WHEREAS, the Company desires that Employee continue to provide services to
the Company and Employee desires to continue to render services to the Company;
and
WHEREAS, the parties desire to further the goals of stability and security,
both with respect to the Company and with respect to the Employee;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the Company and Employee hereby agree as follows:
1. Employment. The Company agrees to employ Employee, and Employee agrees
to be so employed, in the capacity of President of Micron Products Inc. The term
of the employment shall commence as of October 5th, 2001 and terminate on
October 5th, 2006. This Agreement shall be renewed for successive one-year
terms, unless one party notifies the other in writing within thirty (30) days of
the expiration of the then-current term of its intention to terminate the
Agreement.
2. Duties. Employee shall at all times discharge his duties in
consultation with and under the supervision of the Company's Board of Directors.
The parties have acknowledged that the Company is in a period of transition and
that the duties of the Employee may change from time to time.
3. Time and Efforts. Employee shall conscientiously devote all of his
time and attention and best efforts during working hours in the discharging of
his duties. It is understood and agreed that Employee's present duties generally
require forty (40) hours during each working week and that, on occasion,
additional hours may be required to meet the Company's objectives.
4. Compensation.
(a) Base Compensation. As compensation for his services hereunder, the
Company shall pay to Employee base compensation at the rate of $100,000 per
annum, which base compensation shall be paid to Employee in 52 weekly
installments in accordance with the general practice of the Company. Salary
payments shall be subject to withholding and other applicable taxes. Employee
shall be entitled to an annual review for raises in accordance with then-current
Company policy.
(b) Bonus Compensation and Other Benefits. In addition to his base
compensation set forth in Paragraph 4(a) above, Employee shall be entitled to
participate in such bonus compensation and benefit plans as the Company may
institute from time to time.
5. Medical and Dental Benefits. The Company agrees to provide to Employee
such hospital, surgical, dental and medical benefits and at a cost that is
normally provided to its other employees under the Company's group health plans.
6. Non-Disclosure of Trade Secrets and Confidential Information.
(a) Employee acknowledges that the Company possesses and will continue to
possess and develop information and knowledge that has or will become known to
Employee in connection with the development, manufacture and marketing of the
Company's products and the financing and administration of the Company. All such
information, except such information as is known or becomes known to the public
without violation of this Agreement or other restrictions on its use and
disclosure, is hereinafter referred to as the "Confidential Information". By way
of illustration, but not limitation, the Confidential Information may include
trade secrets, manufacturing processes, formulas, data, engineering and
manufacturing processes, know-how, improvements, discoveries, strategies,
forecasts, projections, proprietary software programs, licenses, prices, costs
and supplier lists, and
1
includes, such information with respect to the Company's proprietary processes
for coating silver/silver chloride plated electrodes which is not in the public
domain.
(b) Any and all writings and other physical embodiments of Confidential
Information, including, without limitation, drawings, specifications, recordings
media for machine information-processing systems (such as disks, ROMs, and
tapes), documentation of all types, contracts, reports, manuals, lists,
quotations, proposals, correspondence, notebooks, and samples shall be and
remain the exclusive property of the Company.
(c) At all times, both during his employment by the Company and afterward,
Employee will keep in confidence, and will not disclose, any Confidential
Information to anyone, and will not transfer the physical embodiment of any
Confidential Information to anyone, including employees of the Company, except
as authorized by the Company. Employee will use any Confidential Information and
any physical embodiment of Confidential Information to which he has access only
in the course of his work for the Company and for its benefit and will not
appropriate it for the benefit of himself or any third party.
(d) Employee will return to the Company all physical embodiments of
Confidential Information, including any copies, in his possession or under his
control, (i) at any time upon the request of the Company, and (ii) without such
a request at the termination for any reason of his employment by the Company.
(e) Employee represents that he has not previously disclosed any
information or knowledge that would have fallen within the definition of
"Confidential Information", that he has not transferred the physical embodiment
of such information or knowledge, and that he has not appropriated such
information or knowledge for the benefit of himself or any third party.
7. Disclosure and Assignment of Inventions and Works of Authorship.
(a) Any discovery, invention, improvement, process, formula, or technique,
whether or not patentable, that Employee made, may make, conceived, or reduced
to practice, either alone or with others, either (i) in the course of performing
work for the Company or at the Company's expense, or (ii) that results from
tasks assigned to him by the Company, or (iii) whose creation ordinarily would
be associated with his then current responsibilities as an employee of the
Company (hereinafter "Proprietary Inventions") shall be the exclusive property
of the Company, and the Company shall be the owner of any patents and other
rights related to Proprietary Inventions. Accordingly, Employee hereby assigns
and conveys to the Company all of his right, title, and interest in and to any
Proprietary Inventions.
(b) Employee will promptly disclose to the Company all such Proprietary
Inventions and will help the Company, at its expense, obtain and enforce patents
or Proprietary Inventions in any countries it selects, and Employee will execute
any related documents, including, without limitation, application papers for
patents, assignments, affidavits and oaths of facts within his knowledge, and
assignment of his right, title and interest in and to Proprietary Inventions and
related patent applications and patents to the Company or its designee. Employee
will do any other things the Company requests to convey to, or vest in, the
Company the rights, titles, benefits, and privileges intended to be conveyed.
Employee's obligation under this paragraph shall continue after the termination
of his employment, subject to the Company's compensating him at a reasonable
rate for time actually spent by him at the Company's request after termination.
(c) Employee acknowledge that all works of authorship (including, without
limitation, works or authorship that contain software program code) that
Employee produces during, and within the scope of, his employment by the
company, whether they are or are not created on the Company's premises or during
hours in which he is supposed to be rendering services to the Company, are works
made for hire and are the property of the Company, and that copyrights in those
works of authorship are the property of the Company. If for any reason it
appears that the Company is not the author of any such works of authorship for
copyright purposes, Employee hereby expressly assigns all of his rights in and
to that work to the Company and agrees to sign any instrument of specific
assignment requested.
(d) If Employee is identified as an inventor in any application for any
United States or foreign patent where the invention (i) is claimed to have been
made, conceived, or reduced to practice during the first year after termination
of his employment by the Company and (ii) would have been a Proprietary
Invention relating to the business of Micron if it occurred before the
termination of his employment, then that invention shall be rebuttably presumed
to be a Proprietary Invention.
2
(e) Employee represents that he has not previously disclosed any
information or knowledge that would have fallen within the definition of
"Confidential Information", that he has not transferred the physical embodiment
of such information or knowledge, and that he has not appropriated such
information or knowledge for the benefit of himself or any third party.
8. No Conflicting Agreements. Employee attaches to this Agreement, as
Exhibit A, a complete list of any prior agreements with any other person related
to intellectual property rights. If no such list is attached to this Agreement,
Employee represents that there are no such prior agreements. Employee represents
that his performance of all the terms of this Agreement and as an employee of
the Company will not breach any other agreement related to intellectual property
rights, including any agreement to keeping in confidence Information acquired by
him prior to his employment with the Company. Employee has not previously and
will not enter into any agreement, either written or oral, in conflict with this
Agreement.
9. Non-Competition and Non-Solicitation.
(a) While Employee is employed by the Company, he will not directly or
indirectly perform services for or invest in any person, entity or organization
competitive with the Company, whether as an individual, owner, partner,
stockholder, director, officer, employee, representative or consultant.
(b) For a period of one (1) year after Employee ceases for any reason to
be employed by the Company he will not (i) directly or indirectly, perform
services for or invest in any person, entity, or organization competitive with
the Company, whether as an individual, owner, partner, stockholder, director,
officer, employee, representative or consultant, or (ii) individually, or on
behalf of or through any third party, directly or indirectly, solicit, entice or
persuade any other employee of or consultant to the Company to leave the
services of the Company for any reason. Notwithstanding any expiration of the
post-employment prohibitions contained in this paragraph, the other provisions
of this Agreement shall continue in full force and effect.
10. Termination.
(a) Termination by the Company for Cause. The company may, at its option,
terminate this Agreement by giving written notice of termination to the Employee
without prejudice to any other remedy to which the Company may be entitled
either at law, in equity or under this Agreement, if Employee:
(i) shall have committed any material breach of any material
provisions or covenants herein, or
(ii) shall have committed any act of malfeasance or dishonesty
against the Company; or
(iii) shall have committed any act of gross negligence; or
(iv) is certified by an independent licensed physician to be alcohol
or drug dependent; or
(v) engages in any pattern of prolonged unexcused absence.
In the event of the termination of this Agreement prior to the Completion of the
term of employment specified herein, for any of the reasons set forth in this
Paragraph 10(a), the Company shall send written notice to Employee of such
termination and describe in detail the action constituting the act of default or
other reason. Employee shall be entitled to the compensation earned prior to the
date of termination as provided for in this Agreement, computed pro rata up to
and including the date of termination. Employee shall be entitled to no further
compensation under this Agreement after the date of termination.
(b) Termination for Other Specified Causes. This Agreement shall terminate
immediately on the occurrence of any one of the following events:
(i) The occurrence of circumstances that make it impossible or
impracticable for the business of the Company to be continued;
(ii) The death of Employee;
(iii) The loss by Employee of legal capacity; or
3
(iv) The continued incapacity (due to a cause other than an
industrial accident) on the part of Employee to perform his
duties for a continuous period of 180 days, unless waived by
the Company.
In the event of the termination of this Agreement prior to the completion of the
term of employment specified herein, for any of the reasons set forth in this
Paragraph 10(b), Employee shall be entitled to the compensation earned prior to
the date of termination as provided for in this Agreement, computed pro rata up
to and including the date of termination.
(c) Termination Without Cause by Current Ownership. The Company may
terminate this Agreement at any time by giving thirty (30) days' notice to
Employee. In that event, the Company shall pay to Employee his compensation for
a period of twelve (12) months from the date of termination as provided in
paragraph 4(a) above. Employee shall also be entitled, for a period of twelve
(12) months, to all medical and dental benefits to which he would be entitled if
he remained in the employ of the Company Employee shall not be entitled to any
other severance payment.
(d) Termination Without Cause by New Ownership. In the event of a sale of
all or substantially all of the consolidated assets of the Company or a sale or
other transfer of voting securities of the Company which result in the holders
of a majority of the Company's voting securities prior to the transaction not
holding a majority of the Company's voting securities after such transaction,
the Company may terminate this Agreement at any time by giving thirty (30) days'
notice to Employee. In that event, the Company shall pay to Employee the greater
of his current annual base compensation up to the date of termination or his
current annual base compensation for a period of twenty four (24) months.
Employee shall also be entitled, for a period of eighteen (18) months, to all
medical and dental benefits to which he would be entitled to if he remained in
the employ of the Company.
11. Remedies for Breach. The parties recognize that the services to be
performed by Employee are special and unique. Accordingly, if Employee breaches
the terms and conditions of this Agreement, or shall threaten a breach of any
such terms and conditions, then the Company shall be entitled to institute legal
and equitable proceedings in any court of competent jurisdiction. The Company
may seek to obtain damages for any breach of this Agreement, to enforce its
specific performance by Employee, or to obtain injunctive relief, without the
necessity of posting a bond, to protect itself from such breach.
12. Partial Invalidity. Wherever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law. Moreover, in the event that any one or more of the provisions
hereof shall be held to be excessively broad as to duration, geographic 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 under the specific circumstances of the particular case. Such
holding shall, to the extent possible, not affect the validity or enforceability
of any other provision hereof or of this Agreement as a whole. The parties
acknowledge that they have closely examined and carefully negotiated the terms
of this Agreement, deem such terms fair and adequate and wish them to be
preserved.
13. Notices. Any notice to be delivered under this Agreement shall be
deemed sufficiently given if in writing and delivered personally or mailed by
certified mail, postage prepaid, to Employee at 0 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX
00000, and to the Company at 00 Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
or to any changed address that either party may designate by like notice. The
effective date of such notice shall be its mailing date.
14. Surviving Clauses. The provisions of Paragraphs 6 (regarding
non-disclosure of trade secrets and confidential information) and 7 (regarding
disclosure and of inventions and works of authorship) will survive the
expiration or termination of this Agreement and will continue in full force and
effect.
15. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to its subject matter and supersedes any previous oral
or written communications, representations, understandings or agreements. Any
amendment, modification or waiver of this Agreement shall be effective only if
evidenced by a written instrument executed by both parties, and in the case of
the Company, upon written authorization of the Company's Board of Directors.
Employee's obligations, however, may not be delegated.
(b) Binding Effect. All terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties, and
their respective heirs, successors, assigns, and legal
4
representatives. The rights and benefits of the Company under this Agreement
shall be transferable and assignable to any business entity with which the
Company may merge or to which it may transfer all or a substantial part of its
assets, and all the covenants and agreements hereunder shall be binding upon
Employee's heirs, executors, administrators and legal representatives.
(c) Non-Waiver. No delay or omission in enforcing any of the terms or
conditions of this Agreement shall be construed as or constitute a waiver
thereof or bar thereto; nor shall a waiver on any one occasion be construed as a
bar to or waiver of any right or remedy on any future occasion.
(d) Applicable Law. This Agreement shall be governed by, subject to, and
interpreted in accordance with the laws of the Commonwealth of Massachusetts.
(e) Headings. Headings in this Agreement shall not be used to interpret or
construe its provisions.
(f) Arbitration Any dispute arising out of or related to this Agreement
shall be settled by arbitration in Boston, Massachusetts, by a panel of three
arbitrators and pursuant to the rules and procedures of the American Arbitration
Association.
EXECUTED under seal on the date set forth above.
MICRON PRODUCTS INC. By
/s/ X. X. Xxxxxxx
-----------------
X. X. Xxxxxxx
Chairman of the Board
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
Employee
5
