Exhibit 10.9
KEY EMPLOYEE AGREEMENT
To: Xxxxxx X. Xxxxxxxxx As of Nov. 5th, 1996
3 Carnoustie
Xxxxxxx
Xxxxxxxxxx
Xxxx & Xxxx XX00 0XX
XXXXXX XXXXXXX
The undersigned, Century Industries, Inc., a company incorporated in the
State of Delaware, United States of America (the "Company") hereby agrees with
you as follows:
1. Position and Responsibilities.
1.1 You shall serve as President and Chief Executive Officer of the
Company, and shall perform the duties customarily associated with such position,
including, but not limited to, those set forth in section 1.2 herein, from time
to time at the offices of the Company presently located at 00 Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, or at such place or places as are appropriate
and necessary in connection with such employment.
1.2 The President and Chief Executive Officer shall be the chief executive
officer of the Company and, subject to the direction of the Board of Directors
of the Company, shall have general charge of the business, affairs and property
of the Company and general supervision over its other officers and agents. In
general, he shall perform all duties incident to the office of President and
Chief Executive Officer and shall see that all lawful and reasonable orders of
the Company's Board of Directors are carried into effect. The Company's Board of
Directors may from time to time confer like powers upon any other person or
persons.
1.3 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 other duties as may be reasonably
assigned to you by the Company's Board of Directors from time to time.
1.4 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 appointment shall commence on Nov. 5th 1996 (the date on which the
Company completes its acquisition of all of the outstanding capital stock of
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TRIAX Technology Group, Ltd. ("TRIAX")) (the "Commencement Date") and shall
continue (subject to earlier termination in accordance with Sections 2.2 or 2.4)
for a fixed period ending three (3) years from the Commencement Date (the "Fixed
Term").
2.2 The Company shall have the right, upon written notice to you, to
terminate your employment at any time for cause.
2.3 For purposes of Section 2.2, the term "cause" shall mean the
following: (i) your involvement in any felony crime, severe 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 (including
theft of Company assets); or (ii) gross insubordination or your 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 failure; or (iii) drunkenness or use of any drug or
narcotic which adversely affects your performance; or (iv) any knowing or
intentional misrepresentation of sales or operating status, or other significant
information important to the operating condition of the Company; or (v) acting
in serious or persistent breach or contravention of the non-competition,
non-disclosure or non-solicitation covenants hereof.
2.4 The Company shall have the right to terminate your employment at any
time without cause upon written notice, provided that the Company shall be
obligated to provide you as severance pay an amount equal to (a) your Base
Salary (as set forth in Exhibit A) for a period equal to the lesser of (i) six
(6) months or (ii) the amount of time remaining in the Fixed Term at the time of
your termination, but in any event not less than three (3) months (the
"Severance Period"), less (b) applicable taxes and other required withholdings,
and less (c) any amounts you may owe the Company ("Severance Pay"). 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 termination, and
all other benefits which applicable law requires to be continued.
2.5 You shall have the right to terminate this Agreement for any reason
upon not less than six (6) months prior written notice to the Company.
2.6 After receipt of notice from the Company of termination of your
employment hereunder pursuant to Section 2.2 or 2.4, you shall continue to be
available to the Company, at its sole discretion, for up to twenty (20) hours
per week for a period of up to four (4) weeks to assist in any necessary
transition (the "Transition Period"). If you are terminated for cause pursuant
to Section 2.2 and the Company exercises its rights under this Section, your
compensation for work performed during the Transition Period shall be calculated
pro rata based on your then current Base Salary (as set forth in Exhibit A). If
you are terminated without cause pursuant to Section 2.4 hereof, you shall
receive no further compensation for work performed during the Transition Period
beyond the Severance Pay described in Section 2.4.
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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 your transfer of property rights pursuant to provisions relating
to proprietary information and inventions contained in the Stock Purchase and
Sale Agreement between the Company, you, TRIAX, and other shareholders of TRIAX.
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 your are an inactive investor.
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 five percent (5%)
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 of the Company or any of its subsidiaries (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 (a) through (i)
in any Prohibited Enterprise.
5. Confidentiality, Proprietary Information and Inventions.
5.1 Confidentiality. Except to the extent otherwise required by law, 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, information,
including, without limitation, any inventions, trade secrets, confidential
information, knowledge, data or other information of the Company or any of its
affiliates 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
its affiliates (hereinafter known as "Confidential Information") which you may
produce, obtain or otherwise acquire during the Fixed Term hereof or in the
course of your employment, except as herein provided. You further agree, except
to the extent otherwise required by law, 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 the Company's
Board of Directors. You
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acknowledge and agree that your obligations under this section shall survive the
termination of your employment with the Company.
5.2 Trade Secrets of Others. You represent and warrant that your
performance of the terms of this Agreement and your position as an employee of
the Company do not and will not breach any agreement to keep confidential any
proprietary information, knowledge or data acquired by you in confidence or in
trust prior to your employment with the Company, and you will not disclose to
the Company, or induce the Company to use, any confidential or proprietary
information or material belonging to any previous employer or other. You agree
not to enter into any agreement either written or oral in conflict herewith.
5.3 Return of Confidential Information. In the event your employment with
the Company terminates for any reason whatsoever, you shall promptly surrender
and deliver to the Company all Confidential Information, records, materials,
equipment, drawings, documents and data which you may obtain or produce during
the course of your employment, and you will not take with you any description
containing or pertaining to any Confidential Information, knowledge or data of
the Company or any of its affiliates which you may produce or obtain during the
course of your employment.
5.4 Proprietary Information. You agree that documents, files and tapes
containing software programs, or marketing, financial, production, employee
relations, legal or other information that could, if circulated, hurt the
Company's competitive position or its relationship with the public, customers,
vendors or others will be kept confidential. You agree that the Company's
information will be given special handling, including storage in a locked desk,
file or other similar container when not in use. You agree that such information
will not be divulged to anyone outside the Company.
5.5 Assignment of Inventions. As used in this Agreement, "Invention" shall
include, but not be limited to, improvements, designs, discoveries,
developments, and works of authorship or artistry (including software,
integrated circuit, printed circuit board or computer design and documentation).
You hereby assign and transfer to the Company your entire right, title and
interest in and to all Inventions, whether or not protectable by patent,
trademark, copyright or mask work right and whether or not used by the Company,
which are reduced to practice, made or conceived by you (solely or jointly with
others) during the period of your employment with the Company, which relate in
any manner to the business, products, technologies, processes, services or
research and development of the Company or any of its affiliates. You agree that
Inventions shall be and remain the sole and exclusive property of the Company or
its nominee, whether or not used by the Company or protected by patent,
copyright, trademark, mask work right or trade secrecy. You agree to disclose
each Invention promptly in writing to the Board of Directors of the Company. You
agree to assist the Company, upon request and at its expense, during and after
your employment, in every reasonable way, to obtain for the Company's own
benefit, patents, trademarks,
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copyrights, mask work rights or other proprietary rights for Inventions in any
and all countries. You agree to execute such papers and perform such lawful acts
as the Company deems to be necessary to allow it to exercise all right, title
and interest in such patents, trademarks, copyrights and mask work rights,
including executing, acknowledging, and/or delivering to the Company, upon its
request and at its expense, applications for and assignments of Inventions, and
patents, trademarks, copyrights and mask work rights to be issued therefor, in
any and all countries, and to vest title thereto in the Company or its nominee,
You agree that the obligations contained in this section 5.5 shall survive the
termination of your employment with the Company.
5.6 Former Employers. You hereby 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, except for information relating
to the business of your former employers, 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 (for these purposes, not including your former
employment with TRIAX). In the alternative, if you should find that confidential
information belonging to any other person or entity (other than TRIAX) might be
usable in connection with the Company's business other than information relating
to the business of your former employers, you agree not to disclose
intentionally 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 your 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. Post Employment Activities.
6.1 You shall not for a period of two (2) years after termination of your
employment hereunder (howsoever occasioned), without the prior written consent
of the Company, directly or indirectly do any business with or have any dealings
with any person, firm or company who was a client, customer, supplier, agent or
distributor of the Company or any of its subsidiaries during the period of one
(1) year prior to the end of your employment hereunder and with whom you have
contact during the period of one (1) year prior to the end of your employment.
In addition, you shall not for a period of two (2) years after termination of
your employment (howsoever occasioned) render services similar or reasonably
related to those which you shall have rendered hereunder during the one (1) year
period prior to the end of your employment, to any person or entity whether now
existing or hereafter established which directly competes with (or proposes or
plans to directly compete with) the Company or any of its subsidiaries ("Direct
Competitor") in any line of business engaged in or under development by the
Company or any of its subsidiaries. Nor shall you entice, induce or encourage
any of the other employees of the Company or any of its subsidiaries to
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engage in any activity which, were it done by you, would violate any provision
of the Assignment of Inventions and Confidentiality Agreement which you have
executed or this Section 6. As used in this Section 6.1, The phrase "any line of
business engaged in or under development by the Company or any of its
subsidiaries" shall be applied as at the date of termination of your employment.
6.2 For a period of one (1) year after the termination of your employment
with the Company, the provisions of Section 4.2 shall be applicable to you and
you shall comply therewith. As applied to such one (1) year post-employment
period, the phrase "any other line of business engaged in or under development
by the Company or any of its subsidiaries," as used in Section 4.2, shall be
applied as at the date of termination of your employment with the Company.
6.3 No provision of this Agreement shall be construed to preclude you from
performing the same service which the Company hereby retains you to perform for
any person or entity which is not a Direct Competitor of the Company or any of
its subsidiaries upon the expiration or termination of your employment so long
as you do not thereby violate any term of the Assignment of Inventions and
Confidentiality Agreement.
6.4 You agree that for a period of one (1) year following the termination,
for any reason, of your employment with the Company, you shall not entice or
encourage any then-current employee of the Company or any of its subsidiaries to
leave his or her employment, nor shall you assist, directly or indirectly, any
company, entity, recruitment firm, employment agency, or other organization in
the hiring or recruitment of any then-current employee of the Company or any of
its subsidiaries for another position in the field of business in which the
Company or any of its subsidiaries is engaged without the prior knowledge and
written consent of the Company's officers and Board of Directors. You agree
that, in the event of a breach by you of this Section 6.4, you shall pay all
damages to the Company or any of its subsidiaries resulting therefrom,
including, but not limited to, the full amount of the fee paid to the executive
recruitment firm, if any, employed by the Company or any of its subsidiaries in
connection with the recruitment and hiring of the employee(s) lost as a result
of your breach of this Section 6.4.
7. Assignment of Inventions and Confidentiality Agreement. You agree to execute,
deliver and be bound by the provisions of the Assignment of Inventions and
Confidentiality Agreement attached hereto as Exhibit C.
8. Remedies. Your obligations under the provisions of Sections 4, 5, 6, 7 and 9
of this Agreement (as modified by Section 10, if applicable) shall survive the
expiration or termination of your employment (whether through your resignation
or otherwise) with the Company. You acknowledge that a remedy at law for any
breach or threatened breach by you of the provisions of Sections 4, 5, 6.1
through 6.3, and the provisions of the Assignment of Inventions and
Confidentiality Agreement would be inadequate and
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you therefore agree that the Company shall be entitled to injunctive relief in
case of any such breach or threatened breach.
9. Assignment. This Agreement and the rights and obligations of the parties
hereto shall bind and inure to the benefit of any successor or successors of the
Company by reorganization, merger or consolidation and any assignee of all or
substantially all of its business and properties, but, except as to any such
successor or assignee of the Company, neither this Agreement nor any rights or
benefits hereunder may be assigned by the Company or by you, except by operation
of law.
10. Interpretation. It is the intent of the parties that in case any one or more
of the provisions contained in this Agreement shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. MOREOVER, it is the intent of the
parties that in case any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, such provision shall be construed by
limiting or reducing it as determined by a court of competent jurisdiction, so
as to be enforceable to the extent compatible with applicable law.
11. Notices. Any notice that the Company or you is required to or may desire to
give the other under this Agreement shall be deemed to have been duly given if
dispatched by the party hereto by registered post addressed to the other party
as in the case of the Company's registered office for the time being and in the
case of your last known address and such notice shall be deemed to have been
given on the day on which in the ordinary course of post it would have been
delivered. The date of personal delivery of any notice under this Section 10
shall be deemed to be the date of delivery thereof.
12. Waivers. If either party should waive any breach of any provision of this
Agreement, such party shall not thereby be deemed to have waived any preceding
or succeeding breach of the same or any other provision of this Agreement.
13. Complete Agreement; Amendments. The foregoing, including Exhibits A, B and C
hereto, is the entire agreement of the parties with respect to the subject
matter hereof, superseding any previous oral or written communications,
representations, understandings, or agreements with the Company or any officer
or representative thereof. Any amendment to this Agreement or waiver by the
Company of any right hereunder shall be effective only if evidenced by a written
instrument executed by the parties hereto, upon authorization of the Company's
Board of Directors.
14. Headings. The headings of the Sections hereof are inserted for convenience
only and shall not be deemed to constitute a part hereof nor to affect the
meaning of this Agreement.
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15. Counterparts. This Agreement may be signed in two counterparts, each of
which shall be deemed an original and both of which shall together constitute
one agreement.
16. Governing Law. This Agreement shall be governed by and construed under the
laws of the Commonwealth of Massachusetts. The parties consent to the
jurisdiction of the courts of the Commonwealth of Massachusetts, and any federal
court located therein, and to the appropriateness of the venue of such courts,
in connection with any dispute which may arise pursuant to this Agreement.
If you are in agreement with the foregoing, please sign your name below,
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,
CENTURY INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Accepted and Agreed:
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxx
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Exhibit A
EMPLOYMENT TERM, COMPENSATION, STOCK OPTIONS AND BENEFITS
OF XXXXXX X. XXXXXXXXX
1. Term. The term of the Agreement to which this Exhibit A is annexed and
incorporated shall be until November 5, 1999.
2. Compensation. Your Base salary shall be $200,000 per annum which shall accrue
day to day and be payable by equal monthly instalments in arrears in accordance
with the payroll policies of the Company then in effect.
3. Company Stock. Upon acceptance of this Agreement, you shall be granted an
incentive stock option to purchase 25,000 shares of common stock of the Company
at the fair market value determined by the Board of Directors of the Company.
The options shall vest three (3) years after your Commencement Date (the
"Vesting Date"), and may be exercised after the Vesting Date for a period of
three (3) years (the "Exercise Period"). Notwithstanding the foregoing, upon a
declaration of effectiveness by the Securities and Exchange Commission of a
registration statement filed in connection with an Initial Public Offering of
the shares of the Company, all options granted herein shall become fully vested
and the Exercise Period shall begin.
4. Centennial Stock. Upon the anniversary of each year of the Fixed Term of this
Agreement, you shall be granted an incentive stock option to purchase 10,000
shares of the common stock of the Company's parent, Centennial Technologies,
Inc. ("Centennial") under Centennial's 1994 Stock Option Plan. These incentive
stock options shall be granted at a price equal to the fair market value per
share on the date of the grant. The options granted hereunder shall vest in
thirst over a three (3) year period.
5. Vacation. You shall be entitled to all public holidays in accordance with
Company policy, and four (4) weeks paid vacation per annum. You will not be
permitted to carry over unused holiday entitlements into a following year except
with the prior written consent of the Company. Any holiday entitlement
unutilized when permission has not been given for it to be carried forward will
be forfeited.
6. Relocation. To assist you in your relocation to Massachusetts, the Company
will reimburse you for the reasonable cost of moving you, your family and your
household and personal belongings from your current residence to Massachusetts.
Relocation expense reimbursements shall comply with deductible moving expense as
defined by the Internal Revenue Code. Reimbursements will only be made directly
to you. The Company will not directly contract with or make payment to any third
parties.
Relocation expenses may consist of the moving of household goods, which includes
the cost of packing, crating and transporting your household and personal
effects and those of the members of your household from your former home to your
new home, plus traveling and lodging expenses incurred during the period of
travel from the former residence to the new place of residence. Examples of
non-reimbursable moving expenses are meals while moving from your old residence
to your new residence; travel expenses, meals and lodging for pre-move
house-hunting trips; or staying in temporary quarters in the general location of
your new principal place of work.
7. Insurance and Benefits. You shall be eligible for participation in any
health, other group insurance plan, or pension insurance and benefits scheme
that may be established by the Company or which the Company is required to
maintain by law. You shall also be eligible to receive any other benefits that
are provided to any of the executive officers of the Company.
