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KEY EMPLOYEE AGREEMENT
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To: Xxxxxx X. Xxxx As of February 1, 1997
0 Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
The undersigned, Centennial Technologies, Inc., a Delaware corporation
(the "Company"), hereby agrees with you as follows:
1. POSITION AND RESPONSIBILITIES.
1.1 You shall serve as the Treasurer and General Counsel of the
Company or in a comparable position with similar responsibilities, as designated
by the Company's Board of Directors, and shall perform such functions as are
customarily associated with such capacity from time to time at the Company's
headquarters or such place or places as are appropriate and necessary in
connection with such employment.
1.2 You will, to the best of your ability, devote your full time
and best efforts to the performance of your duties hereunder and the business
and affairs of the Company. You agree to perform such duties consistent with
your position as may be lawfully and reasonably assigned to you by the Company's
Board of Directors from time to time. Such duties may include similar
responsibilities with companies in which the Company has a majority ownership
interest.
1.3 You will duly, punctually and faithfully perform and
observe any and all lawful rules and regulations which the Company may now or
shall hereafter establish governing the conduct of its business.
2. TERM OF EMPLOYMENT.
2.1 The initial term of this Agreement shall be for one year,
subject to earlier termination in accordance with Section 2.2 hereof.
Thereafter, this Agreement may be renewed upon the written agreement of you and
the Company.
2.2 The Company shall have the right to terminate your
employment at any time either (a) immediately without prior written notice for
"cause" (as defined herein), or (b) upon at least ten (10) days' written notice
without cause. If the Company terminates your employment for cause, the Company
shall be obligated to pay you an amount equal to your salary and vacation pay
which is accrued and unpaid up to the
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date of such termination. If the Company terminates your employment without
cause, the Company shall be obligated to pay you your Base Salary (as defined in
EXHIBIT A attached hereto) for a period of time equal to the greater of (i) six
months, or (ii) that period of time which commences on the date of such
termination and ends with the expiration in the initial term of employment set
forth in Section 2.1 (the "Severance Period"). The Company shall also continue
in full force and effect for the Severance Period all health and insurance
benefits that you enjoyed at the time of your termination without cause, and all
other benefits which applicable law requires to be continued. Should you
continue to be employed by the Company beyond the term of this Agreement without
a mutually agreed upon renewal or modification of this Agreement, a six month
severance provision for termination without cause as described above shall
apply.
2.3 For purposes of Section 2.2 hereof, the term "cause" shall
mean the following: (i) your involvement in any felony crime, material
arrestable criminal offense (excluding road traffic offenses for which a fine or
non-custodial penalty is imposed), or any crime in connection with your
employment with the Company (including theft of Company assets); or (ii)
material insubordination or your unreasonable failure to take actions permitted
by law and necessary to implement strategies or policies of the Company and
which are consistent with your positions and duties, following written warning
of such material insubordination or unreasonable failure; or (iii) drunkenness
or use of any drug or narcotic which adversely affects your job performance; or
(iv) any knowing or intentional misrepresentation of significant information
important to the operating condition of the Company; or (v) acting in material
breach or contravention of any non-competition, non-disclosure or
non-solicitation covenants hereof.
3. COMPENSATION. You shall receive the compensation and benefits
set forth on Exhibit A hereto ("Compensation") for all services to be rendered
by you hereunder and for your transfer of property rights, if any, pursuant to
an agreement relating to proprietary information and inventions of even date
herewith attached hereto and made a part hereof as EXHIBIT C between you and the
Company (the "Proprietary Information and Inventions Agreement"). If you remain
as a full-time employee of the Company until at least August 31, 1997, the
Company will pay you, in a lump-sum payment within two (2) weeks following such
date, a "stay bonus" equal to six (6) months' Base Salary.
4. OTHER ACTIVITIES DURING EMPLOYMENT.
4.1 Except for any outside employments and directorships
currently held by you as listed on EXHIBIT B hereto, if any, and except with the
prior written consent of the Company's Board of Directors (which approval shall
not be unreasonably withheld), you will not during the term of this Agreement
undertake or engage in any other employment, occupation or business enterprise
other than one in which you are an inactive investor.
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4.2 You hereby agree that, except as disclosed on EXHIBIT B
hereto, during your employment hereunder, you will not, directly or indirectly,
engage (a) individually, (b) as an officer, (c) as a director, (d) as an
employee, (e) as a consultant, (f) as an advisor, (g) as an agent (whether a
salesperson or otherwise), (h) as a broker, or (i) as a partner, coventurer,
stockholder or other proprietor owning directly or indirectly more than one
percent (1%) interest, in any firm, corporation, partnership, trust,
association, or other organization which is engaged in any line of business
engaged in or under demonstrable development by the Company (such firm,
corporation, partnership, trust, association, or other organization being
hereinafter referred to as a "Prohibited Enterprise"). You hereby represent that
you are not presently engaged in any of the foregoing capacities described in
(a) through (i) in any Prohibited Enterprise.
5. FORMER EMPLOYERS.
5.1 You represent and warrant that your employment by the
Company will not conflict with and will not be constrained by any prior or
current employment, consulting agreement or relationship whether oral or
written. You represent and warrant that you do not possess confidential
information arising out of any such employment, consulting agreement or
relationship which, in your best judgment, would be utilized in connection with
your employment by the Company.
5.2 If, in spite of the second sentence of Section 5.1, you
should find that confidential information belonging to any other person or
entity might be usable in connection with the Company's business, you will not
intentionally disclose to the Company or use on behalf of the Company any
confidential information belonging to any of your former employers; but during
your employment by the Company you will use in the performance of your duties
all information which is generally known and used by persons with training and
experience comparable to your own, all information which is common knowledge in
the industry or otherwise legally in the public domain.
6. PROPRIETARY INFORMATION AND INVENTIONS. You agree to execute,
deliver and be bound by the provisions of the Proprietary Information and
Inventions Agreement attached hereto as EXHIBIT C and incorporated herein.
7. [NOT USED].
8. REMEDIES. Your obligations under the Proprietary Information and
Inventions Agreement and the provisions of Sections 9, 10 and 11 of this
Agreement (as modified by Section 12, if applicable) shall survive the
expiration or termination of your employment (whether through your resignation
or otherwise) with the Company. You acknowledge that a remedy at law for any
breach or threatened breach by you of the provisions of this Agreement or the
Proprietary Information and Inventions Agreement would be inadequate and you
therefore agree that the Company shall be entitled to injunctive relief in case
of any such breach or threatened breach.
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9. ASSIGNMENT. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of any successor or
successors of the Company by reorganization, merger or consolidation and any
assignee of all or substantially all of its business and properties, but, except
as to any such successor or assignee of the Company, neither this Agreement nor
any rights or benefits hereunder may be assigned by the Company or by you,
except by operation of law or by a further written agreement by the parties
hereto.
10. CONFIDENTIALITY. You agree to keep confidential, except as the
Company may otherwise consent in writing, and, except for the Company's benefit,
not to disclose or make any use of at any time either during or subsequent to
your employment, any trade secrets, confidential information, knowledge, data or
other information of the Company relating to products, processes, know-how,
techniques, methods, designs, formulas, test data, customer lists, business
plans, marketing plans and strategies, pricing strategies, or other subject
matter pertaining to any business of the Company or any of its affiliates, which
you may produce, obtain, or otherwise acquire during the course of your
employment, except as herein provided. You further agree not to deliver,
reproduce or in any way allow any such trade secrets, confidential information,
knowledge, data or other information, or any documentation relating thereto, to
be delivered to or used by any third parties without specific direction or
consent of a duly authorized representative of the Company.
11. ARBITRATION. Any dispute concerning this Agreement including,
but not limited to, its existence, validity, interpretation, performance or
non-performance, arising before or after termination or expiration of this
Agreement, shall be settled by a single arbitrator in Boston, Massachusetts, in
accordance with the expedited procedures of the commercial rules then in effect
of the American Arbitration Association. Judgment upon any award may be entered
in the highest court, state or federal, having jurisdiction.
12. INTERPRETATION. IT IS THE INTENT OF THE PARTIES THAT in case
any one or more of the provisions contained in this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the other provisions
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. MOREOVER, IT
IS THE INTENT OF THE PARTIES THAT if any one or more of the provisions contained
in this Agreement is or becomes or is deemed invalid, illegal or unenforceable
or in case any provision shall for any reason be held to be excessively broad as
to duration, geographical scope, activity or subject, such provision shall be
construed by amending, limiting and/or reducing it to conform to applicable laws
so as to be valid and enforceable or, if it cannot be so amended without
materially altering the intention of the parties, it shall be stricken and the
remainder of this Agreement shall remain in full force and effect.
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13. NOTICES. Any notice which the Company is required to or may
desire to give you shall be given by personal delivery or registered or
certified mail, return receipt requested, addressed to you at your address of
record with the Company, or at such other place as you may from time to time
designate in writing. Any notice which you are required or may desire to give to
the Company hereunder shall be given by personal delivery or by registered or
certified mail, return receipt requested, addressed to the Company at its
principal office, or at such other office as the Company may from time to time
designate in writing with a copy to Xxxx X. Xxxxxx, Esquire, X'Xxxxxx, Broude &
Xxxxxxx, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxxxxx 00000. The date
of personal delivery or the date of mailing of any notice under this Section 13
shall be deemed to be the date of delivery thereof.
14. WAIVERS. No waiver of any right under this Agreement shall be
deemed effective unless contained in a writing signed by the party charged with
such waiver, and no waiver of any right arising from any breach or failure to
perform shall be deemed to be a waiver of any future such right or of any other
right arising under this Agreement. If either party should waive any breach of
any provision of this Agreement, such party shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
15. COMPLETE AGREEMENT; AMENDMENTS. The foregoing, including
Exhibits A, B and C hereto, is the entire agreement of the parties with respect
to the subject matter hereof, superseding any previous oral or written
communications, representations, understandings, or agreements with the Company
or any officer or representative thereof. Any amendment to this Agreement shall
be effective only if evidenced by a written instrument executed by the parties
hereto, upon authorization of the Company's Board of Directors.
16. HEADINGS. The headings of the Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning of this Agreement.
17. COUNTERPARTS. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed
under Massachusetts law, without regard to its conflict of laws principles.
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If you are in agreement with the foregoing, please sign your name below
and also at the bottom of the Proprietary Information and Inventions Agreement,
whereupon this Agreement shall become binding in accordance with its terms.
Please then return this Agreement to the Company. (You may retain for your
records the accompanying counterpart of this Agreement enclosed herewith).
Very truly yours,
CENTENNIAL TECHNOLOGIES, INC.
By:
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Xxxxxxxx X. Xxxxxxxxx
Interim Chief Executive Officer
Accepted and Agreed:
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Xxxxxx X. Xxxx
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EXHIBIT A
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EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF
XXXXXX X. XXXX
1. TERM. The term of the Agreement to which this Exhibit A is annexed and
incorporated shall be until January 31, 1998.
2. COMPENSATION. Your Base Salary shall be $150,000 per annum, payable in
accordance with the payroll policies established by the Company.
3. STOCK OPTIONS. Upon acceptance of this Agreement, you shall be granted
an incentive stock option to purchase 150,000 shares of the common
stock of the Company pursuant to the Company's 1994 Stock Option Plan
at the fair market value determined by the Company's Board of
Directors. These incentive stock options shall vest one-third on
October 1, 1997, one-third on October 1, 1998, and one-third on October
1, 1999. These stock options will replace your existing 15,000 options
granted on September 5, 1996 at an exercise price of $16.815, and you
agree to execute all documents reasonably necessary to effect this
cancellation of your prior options. In the event of a sale or
acquisition of substantially all of the stock or assets of the Company,
the Company shall give you thirty (30) days notice of such an event and
advise you that any of your then outstanding options shall be
immediately exercisable before the event takes place, whether or not by
their terms the stock options are then vested. In the event you are
terminated involuntarily for any reason other than for "cause" as
defined in section 2.3 of this Agreement after a change in the majority
of the Board of Directors of the Company, fifty percent (50%) of any
options which on such date have not vested shall be and become fully
vested.
4. VACATION. You shall be entitled to 4 weeks paid vacation per year. You
will be allowed to carry over unused vacation entitlement to future
periods or at your option receive compensation equivalent to the unused
vacation entitlement at your then current salary.
5. OTHER BENEFITS. You shall be eligible for participation in any health,
group insurance plan, or pension insurance and benefits plan that may
be established by the Company or which the Company is required to
maintain by law. You shall also be eligible to receive other benefits
that are provided to the executive officers of the Company from time to
time.
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EXHIBIT B
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OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS OF
XXXXXX X. XXXX
None
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EXHIBIT C
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PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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To: Centennial Technologies, Inc. As of February 1, 1997
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
The undersigned, in consideration of and as a condition of my services
to you and/or to companies which you own, control, or are affiliated with or
their successors in business (collectively, the "Company"), hereby agrees as
follows:
1. CONFIDENTIALITY. I agree to keep confidential, except as the
Company may otherwise consent in writing, and, except for the Company's benefit,
not to disclose or make any use of at any time either during or subsequent to my
employment with the Company, any Inventions (as hereinafter defined), trade
secrets, confidential information, knowledge, data or other information of the
Company relating to products, processes, know-how, designs, formulas, test data,
customer lists, business plans, marketing plans and strategies, pricing
strategies, or other subject matter pertaining to any business of the Company or
any of its affiliates, which I may produce, obtain, or otherwise acquire during
the course of my employment, except as herein provided. I further agree not to
deliver, reproduce or in any way allow any such trade secrets, confidential
information, knowledge, data or other information, or any documentation relating
thereto, to be delivered to or used by any third parties without specific
direction or consent of a duly authorized representative of the Company.
2. CONFLICTING EMPLOYMENT; RETURN OF CONFIDENTIAL MATERIAL. I agree
that during my employment with the Company I will not engage in any other
employment, occupation, consulting or other activity relating to the business in
which the Company is now or may hereafter become engaged, or which would
otherwise conflict with my obligations to the Company. In the event my
employment with the Company terminates for any reason whatsoever, I agree to
promptly surrender and deliver to the Company all records, materials, equipment,
drawings, documents and data which I may obtain or produce during the course of
my employment, and I will not take with me any description containing or
pertaining to any confidential information, knowledge or data of the Company
which I may produce or obtain during the course of my employment.
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3. ASSIGNMENT OF INVENTIONS.
3.1 I hereby acknowledge and agree that the Company is the owner
of all Inventions. In order to protect the Company's rights to such Inventions,
by executing this Agreement I hereby irrevocably assign to the Company all my
right, title and interest in and to all Inventions.
3.2 For purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, technologies, devices, or improvements in any
of the foregoing or other ideas, whether or not patentable and whether or not
reduced to practice, made or conceived by me (whether solely or jointly with
others) during the period of my employment with the Company, which relate in any
manner to the actual or demonstrably anticipated business, work, or research and
development of the Company or its affiliates, or result from or are suggested by
any task assigned to me or any work performed by me for or on behalf of the
Company or its affiliates.
3.3 Any discovery, process, design, technology, device, or
improvement in any of the foregoing or other ideas, whether or not patentable
and whether or not reduced to practice, made or conceived by me (whether solely
or jointly with others) which I develop entirely on my own time during the term
of this Agreement not using any of the Company's equipment, supplies,
facilities, or trade secret information ("Personal Invention") is excluded from
this Agreement provided such Personal Invention (a) does not relate to the
actual or demonstrably anticipated business, research and development of the
Company, and (b) does not result, directly or indirectly, from any work
performed by me for the Company.
4. DISCLOSURE OF INVENTIONS. I agree that in connection with any
Invention, I will promptly disclose such Invention to the Company in order to
permit the Company to enforce its property rights to such Invention in
accordance with this Agreement. My disclosure shall be received in confidence by
the Company.
5. PATENTS AND COPYRIGHTS; EXECUTION OF DOCUMENTS.
5.1 Upon request, I agree to assist the Company or its nominee
(at its expense) during and at any time subsequent to my employment with the
Company in every reasonable way to obtain for its own benefit patents and
copyrights for Inventions in any and all countries. Such patents and copyrights
shall be and remain the sole and exclusive property of the Company or its
nominee. I agree to perform such lawful acts as the Company deems to be
necessary to allow it to exercise all right, title and interest in and to such
patents and copyrights.
5.2 In connection with this Agreement, I agree to execute,
acknowledge and deliver to the Company or its nominee upon request and at its
expense all documents, including assignments of title, patent or copyright
applications, assignments
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of such applications, assignments of patents or copyrights upon issuance, as the
Company may determine necessary or desirable to protect the Company's or its
nominee's interest in Inventions, and/or to use in obtaining patents or
copyrights in any and all countries and to vest title thereto in the Company or
its nominee to any of the foregoing.
6. MAINTENANCE OF RECORDS. I agree to keep and maintain adequate
and current written records of all Inventions made by me (in the form of notes,
sketches, drawings, flowcharts and other records as may be specified by the
Company), which records shall be available to and remain the sole property of
the Company at all times.
7. PRIOR INVENTIONS. It is understood that all Personal Inventions,
if any, whether patented or unpatented, which I made prior to my association
with the Company, are excluded from this Agreement. To preclude any possible
uncertainty, I have set forth on Schedule A attached hereto a complete list of
all of my prior Personal Inventions, including numbers of all patents and patent
applications and a brief description of all unpatented Personal Inventions which
are not the property of a previous employer. I represent and covenant that the
list is complete and that, if no items are on the list, I have no such prior
Personal Inventions. I agree to notify the Company in writing before I make any
disclosure or perform any work on behalf of the Company which appears to
threaten or conflict with proprietary rights I claim in any Personal Invention.
In the event of my failure to give such notice, I agree that I will make no
claim against the Company with respect to any such Personal Invention.
8. OTHER OBLIGATIONS. I acknowledge that the Company from time to
time may have agreements with other persons or with the U.S. Government or
agencies thereof, which impose obligations or restrictions on the Company
regarding Inventions made during the course of work thereunder or regarding the
confidential nature of such work. I agree to be bound by all such obligations
and restrictions and to take all action necessary to discharge the Company's
obligations.
9. TRADE SECRETS OF OTHERS. I represent that my performance of all
the terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to keep confidential proprietary information, knowledge
or data acquired by me in confidence or in trust prior to my services to the
Company, and I will not disclose to the Company, or induce the Company to use,
any confidential or proprietary information or material belonging to any
previous client, employer or others. I agree not to enter into any agreement
either written or oral in conflict herewith.
10. MODIFICATION. I agree that any subsequent change or changes in
my duties, salary or compensation or in any Employment Agreement between the
Company and me, shall not affect the validity or scope of this Agreement.
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11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon my
heirs, executors, administrators or other legal representatives and is for the
benefit of the Company, its successors and assigns.
12. INTERPRETATION. IT IS THE INTENT OF THE PARTIES THAT in case any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT in case any one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by limiting and reducing it in accordance with a judgment of a court
of competent jurisdiction, so as to be enforceable to the extent compatible with
applicable law.
13. WAIVERS. If either party should waive any breach of any
provision of this Agreement, he or it shall not thereby be deemed to have waived
any preceding or succeeding breach of the same or any other provision of this
Agreement.
14. COMPLETE AGREEMENT, AMENDMENTS. I acknowledge receipt of this
Agreement, and agree that with respect to the subject matter thereof it is my
entire agreement with the Company, superseding any previous oral or written
communications, representations, understandings, or agreements with the Company
or any officer or representative thereof. Any amendment to this Agreement or
waiver by either party of any right hereunder shall be effective only if
evidenced by a written instrument executed by the parties hereto, and, in the
case of the Company, upon written authorization of the Company's Board of
Directors.
15. HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning hereof.
16. COUNTERPARTS. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
17. GOVERNING LAW. This Agreement shall be governed by and construed
under Massachusetts law, excluding its conflict of law principles.
XXXXXX X. XXXX
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Accepted and Agreed:
CENTENNIAL TECHNOLOGIES, INC.
By:
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Xxxxxxxx X. Xxxxxxxxx, Interim Chief Executive Officer
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SCHEDULE A
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(to Exhibit C)
PERSONAL INVENTIONS
OF
XXXXXX X. XXXX
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