EXHIBIT 10.31
Key Employee Agreement
TO:
Xxxx X. XxXxxxx Date of this Agreement:
X.X. Xxx 0000
Xxxxx Xxxxx Xxxxxxxx,
XX 00000
April 25, 1995
The undersigned, Quadrax Corporation, a Delaware corporation (the
Company), hereby agrees with you as follows:
1. Position and Responsibilities.
You shall serve in the position specified in paragraph
2 of Exhibit A hereto as your Primary Position and shall
perform the duties customarily associated with such position from
time to time and at such place or places as the Company shall
designate as appropriate and necessary in connection with such
employment; provided, however, that the Company shall not require
you to relocate without your consent.
1.1 You will, to the best of your ability, devote
substantially full time and your best efforts to the performance
of your duties hereunder and the business and affairs of the
Company. You agree to perform such additional executive duties
as may be assigned to you from time to time by or on authority of
the Company's President.
2. Term of Employment.
2.1. The initial term of this Agreement shall begin on
the date hereof and end on the Expiration Date specified in
paragraph 1 of Exhibit A hereto. Thereafter, this Agreement
shall be automatically renewed for successive periods of one
year, unless the Company shall give you not less then three (3)
months written notice of non-renewal. In the event of
non-renewal, the Company shall pay you the sum specified (and in
the manner specified) in paragraph 3 of Exhibit A as Severance
Pay, such payment to be in consideration of services performed
by you before the date of termination, to have been earned
thereby, and to be payable irrespective of whether you seek or
obtain employment elsewhere after your termination by the
Company. In addition, in the event of such non-renewal, the
Company shall continue to provide you with such health coverage
as it provided under paragraph 6 of Exhibit A hereto, or the
equivalent, for a period of three (3) months after such
expiration.
2.2. The Company shall have the right, on written
notice to you, to terminate your employment immediately, for
cause, in which event you shall not be entitled to severance pay
upon, nor to benefits after, such termination.
2.3. For the purposes of Section 2.2, the term cause
shall include only the following:
Your intentional failure or refusal to perform the
duties of your Primary Position as specified in
paragraph 2 of Exhibit A hereto, or to carry out
any reasonable and lawful directives of the
Company with respect to such duties to be rendered
or the manner of rendering such duties by you;
provided, however, that (i) such failure or
refusal is material and repetitive, and (ii) with
respect to the first two such failures or refusals
you have been given reasonable written notice and
explanation thereof and reasonable opportunity to
cure and no cure has been effected within a
reasonable time after such notice; or
Fraud or embezzlement involving a material amount of
the assets of the Company, its customers,
suppliers, or affiliates.
Any dispute, controversy, or claim arising out of, in connection
with or in relation to this definition of cause shall be
settled by arbitration in Providence, Rhode Island, pursuant to
the rules then in effect of the American Arbitration Association.
Any award or determination shall be final, binding, and
conclusive upon the parties, and a judgment thereon may be
entered in any court having jurisdiction thereof.
2.4 You shall have the right to terminate this
Agreement upon not less than three (3) months prior written
notice to the Company. If you terminate this Agreement, you
shall not be entitled to severance pay upon, nor to benefits
after, such termination.
3. Compensation. You shall receive the compensation and
benefits set forth in paragraphs 4, 5, and 6 of Exhibit A hereto
(Compensation) for all services to be rendered by you hereunder
and for your transfer of property rights pursuant to an agreement
relating to proprietary information and inventions previously
signed by you and delivered to the Company (the Proprietary
Information and Inventions Agreement).
4. Other Activities During Employment.
4.1 You hereby agree that, except with the approval of
the Board of Directors of the Company, during your employment
hereunder, you will not, directly or indirectly, participate in
any capacity (including as an agent or consultant), in any firm,
corporation, partnership, trust, association, or other
organization that is engaged in the research, development,
production, manufacture, or marketing of equipment, materials,
and/or processes in direct competition with those of the Company
now in existence or any other line of business engaged in or
under demonstrable development by the Company.
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
an 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 in the absence of Section 5.2.
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 that is generally known and used by
persons with training and experience comparable to your own and
all information that is common knowledge in the industry or
otherwise legally in the public domain.
6. Proprietary Information and Inventions. You agree to
be bound by the provisions of the Proprietary Information and
Inventions Agreement.
7. Post-Employment Activities.
7.1. For a period of one (1) year after the
termination or expiration, for any reason, of your employment
with the Company hereunder, absent the Company's prior written
approval, you will not directly or indirectly engage in
activities similar or reasonable related to those in which you
shall have engaged hereunder during the two (2) years immediately
preceding termination or expiration for, nor render services
similar or reasonable related to those that you shall have
rendered here under during such two (2) years to, any person or
entity whether now existing or hereafter established that
directly competes with (or proposes or plans to directly compete
with) the Company (a Direct Competitor) in any line of business
engaged in or under development by the Company. Nor shall you
entice, induce, or encourage any of the Company's other employees
to engage in any activity which, were it done by you, would
violate any provision of the Proprietary Information and
Inventions Agreement or this Section 7. As used in this Section
7.1, the term any line of business engaged in or under
development by the Company shall be determined as at the date of
termination of your employment. It is understood and agreed that
the Company is, and is likely to continue to be, engaged in a
business that is worldwide in scope and that, therefore, the
parties have agreed that no geographical limitation on the scope
of this covenant is appropriate and that a worldwide scope is
reasonable.
7.2. Notwithstanding anything to the contrary
contained herein, the provisions of Section 7.1 hereof shall be
enforceable by the Company only if the Company notifies you
within thirty (30) days following receipt of written notification
from you that you propose to become associated with a Direct
Competitor that the Company wishes to enforce Section 7.1 hereof,
and, at the time of such notice, agrees to pay to you as
compensation for your non-competition with the Company the
Non-Competition Compensation specified in paragraph 7 of
Exhibit A, in addition to any severance pay and benefits due to
you pursuant to Section 2.2(b) hereof. Such compensation shall
be payable as specified in paragraph 7 of Exhibit A.
7.3. No provision of this Agreement shall be construed
to preclude you from performing the same services that the
Company hereby retains you to perform for any person or entity
that is not a Direct Competitor of the Company upon the
expiration or termination of your employment so long as you do
not thereby violate any term of the Proprietary Information and
Inventions Agreement.
8. Remedies. Your obligations under the Proprietary
Information and Inventions Agreement and the provisions of
Sections 4, 5, 6 and 7 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 the
Proprietary Information and Inventions Agreement or Section 7
would be inadequate and you therefore agree that the Company
shall be entitled to injunction 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 your (except with respect to benefits earned
hereunder or to benefits to which you may be entitled upon death
or disability, to any trust established by your for estate
planning or similar purposes), except by will or 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 and reducing it as
determined by a court of competent jurisdiction, so as to be
enforceable to the intent compatible with applicable law.
11. Notices. Any notice that 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 that 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 as its principal office, or at such other office
as the Company may from time to time designate in writing. The
date of personal delivery or the date of mailing any notice under
this Section 11 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. This Agreement,
including Exhibit A hereto and the Proprietary Information and
Inventions Agreement, constitutes 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 other than a Special Termination
Agreement executed by the Company and you prior to the date
hereof, which special Termination Agreement is not superseded
hereby. 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.
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 Rhode Island law.
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 the Agreement enclosed
herewith.)
Very truly yours,
Quadrax Corporation
By:
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
Accepted and Agreed to:
By:
/s/Xxxx X. XxXxxxx
Xxxx X. XxXxxxx
