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Exhibit 10.3
EMPLOYMENT AGREEMENT
AGREEMENT made as of this 14th day of May, 1999, by and between Xxxxx
X. XxXxxxxx, a person residing at Xxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxxxxx
00000 (the "Employee") and Sipex Corporation, a Massachusetts corporation with a
principal place of business in Billerica, Massachusetts (the "Company").
WHEREAS, the Employee's senior managerial position requires that he be
trusted with extensive confidential information and trade secrets of the Company
and that he develop a thorough and comprehensive knowledge of all details of the
Company's business, including, but not limited to, information relating to
research, development, inventions, manufacturing, purchasing, accounting,
engineering, marketing, distribution and licensing of the Company's products and
services;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. Position and Responsibilities. During the term of this Agreement,
the Employee agrees to serve as Executive Vice President of Finance and Chief
Financial Officer of the Company or in such other positions as may be assigned.
The Employee shall at all times report to, and his activities shall at all times
be subject to the direction and control of the Chief Executive Officer of the
Company or to his designee, and the Employee shall exercise such powers and
comply with and perform, faithfully and to the best of his ability, such
directions and duties in relation to the business and affairs of the Company as
may from time to time be vested in or requested of him. If Employee shall be
elected to other offices of the Company or any of its affiliates, he shall serve
in such positions without further compensation than provided for in this
Agreement. The Employee agrees to follow all rules, policies and directives of
the Company as may be promulgated or modified from time to time. The Employee
shall perform his services under this Agreement at such locations as may be
required by the Company.
2. Compensation: Salary, Bonuses and Other Benefits. During the term of
this Agreement, the Company shall pay the Employee the following compensation:
(A) Salary. In consideration of the services to be rendered by the
Employee to the Company, the Company will pay to the Employee a monthly
salary of $15,312.50 (the Employee's "Base Rate") during the term of this
Agreement. Employee's Base Rate may be adjusted by the Company's Board of
Directors in its sole discretion from time to time; provided, however,
that under no circumstance shall such Base Rate be reduced. Such salary
shall be payable in conformity with the Company's customary practices for
executive compensation, as such practices shall be established or modified
from time to time.
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(B) Fringe Benefits.
(1) The Employee will be entitled to participate on the same
general basis and subject to the same rules and regulations as
other Company executive employees in the Company's standard
benefit plans as such benefits or plans may be modified or
amended from time to time.
(2) The Company will maintain supplemental life insurance on
the life of the Employee so that the aggregate total death
benefit payable to the Employee from all Company life
insurance policies will total Five Hundred Thousand Dollars
($500,000.00).
(3) At the request of the Employee, the Company will maintain
supplemental disability insurance for the Employee so that the
aggregate total disability benefits payable to the Employee
from all Company disability insurance policies will total
sixty-six and two-thirds percent (66 2/3%) of Employee's
salary.
(4) The Company shall pay or reimburse the Employee for all
reasonable business expenses incurred or paid by the Employee
in the performance of his duties and responsibilities
hereunder, provided the Employee provides reasonable
substantiation and documentation of these expenses. The
Company agrees to provide reimbursement within a reasonable
time after receipt of such documentation.
(C) Performance Based Bonus. At the sole discretion of the Board of
Directors, the Employee may also be eligible to receive a discretionary
annual bonus after the end of the Company's calendar year, provided that
the Employee continues to be employed by the Company at such year end. The
amount of this bonus, if any, shall be determined by the Board of
Directors based on objective or subjective goals set by the Board of
Directors in its sole discretion. In the event that the Employee's
employment with the Company is terminated by the Company without Cause or
is terminated by the Employee for Good Reason other than at calendar year
end, the Employee's bonus shall be prorated for such partial year. No
bonus shall be payable to Employee with respect to any calendar year of
the Company during which Employee's employment is terminated for Cause or
Employee terminates his employment without Good Reason.
(D) Taxes. All payments in this Section 2 shall be subject to all
applicable federal, state and local withholding, payroll and other taxes.
3. Termination. The Employee's employment under this Agreement may be
terminated as follows:
(A) By the Employee Without Good Reason. The Employee may terminate his
employment without Good Reason (as defined in Section 3(B)(2) below)
provided that the Employee gives the Company a written notice of intent to
terminate at least thirty (30) days'
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prior to the effective date of such termination. In the event of a
termination by the Employee without Good Reason, the Company may accelerate
the Employee's departure date and will have no obligation to pay Employee
after his actual departure date. In the event of termination by the
Employee without Good Reason, the Employee shall be entitled to no
severance or other termination benefits.
(B) By the Employee with Good Reason or by the Company without Cause.
(1) The Company may terminate the Employee's employment
without Cause (as defined in Section 3(C)) at any time. The
Employee may terminate his employment for Good Reason (as
defined in Subsection (2) of this Section 3(B)) after giving
the Company a written notice of intent to terminate at least
thirty (30) days prior to the effective date of such
termination.
(2) For purposes of this Agreement, termination by the
Employee for "Good Reason" shall mean the termination of
employment by the Employee: (i) as a result of a material
breach of this Agreement by the Company; (ii) as a result of a
material reduction in the Employee's title or reporting
responsibilities as they exist on the date hereof without the
Employee's written consent; (iii) as a result of the failure
of the Company to pay the Employee's salary or bonus, if any,
in the time and manner contemplated by this Agreement; or (iv)
as a result of the Company requiring the Employee to relocate
more than 50 miles from Billerica, Massachusetts (unless such
relocation is to another facility of the Company); provided,
however, that an event described in this Section shall not
constitute Good Reason unless it is communicated by the
Employee to the Company in writing and is not corrected by the
Company to the Employee's reasonable satisfaction within 30
days of the date of the Employee's delivery of such written
notice to the Company. Notwithstanding Section 3(B)(2)(iv), in
the event a Successor To The Business (as defined in Section
10 hereof) assumes this Agreement, Section 3(B)(2)(iv) shall
be modified to read as follows: "(iv) as a result of the
Company requiring the Employee to relocate more than 50 miles
from Billerica, Massachusetts to any other location (including
without limitation any facility of the Company or the
Successor To The Business)."
(3) In the event that the Company exercises its right to
terminate the Employee without Cause or the Employee
terminates his employment for Good Reason and the Employee
signs a comprehensive release in the form, and of a scope,
acceptable to the Company, the Company agrees to:
(i) pay the Employee a lump sum payment equal to
eighteen (18) months' base salary at the Employee's
then current Base Rate;
(ii) pay the Employee an amount equal to the highest
annual bonus paid or payable by the Company to the
Employee with respect to any
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calendar year during the three (3) calendar years
prior to Employee's termination of employment;
(iii) allow the Employee to participate to the same
extent as active executive employees (including
dependent coverage) in the life, accident,
disability, health and dental insurance plans of the
Company (including the supplemental insurance set
forth in Section 2(B)(2) and 2(B)(3) of this
Agreement) or to provide benefits equivalent to those
of active executive employees, at no cost to the
Employee for a period of twenty four (24) months
commencing on the date of termination of employment;
(iv) allow the Employee the option to buy the Company
automobile leased for the Employee for a price equal
to the buyout amount of the automobile at the end of
the lease. The Employee hereby authorizes the Company
to deduct any tax withholdings applicable to such
transfer from any payments to be made by the Company
hereinafter. All risk of damage or loss with respect
to such automobile shall rest with the Employee. The
automobile will be transferred to the Employee "as
is," with no representations or warranties, express
or implied, being made to the Employee (including
warranties of merchantability and fitness for a
particular purpose) and, without limiting the
generality of the foregoing in any way, in no event
shall the Company be liable for any consequential,
special, punitive or other damages in connection with
the automobile transfer. If this option is not
exercised, the automobile will be returned to the
Company;
(v) In the event of a termination hereunder, each
outstanding option held by the Employee pursuant to
any stock option plan of the Company shall, without
further action by the Company, accelerate and become
immediately exercisable in full; provided that other
than such acceleration(s), such outstanding option(s)
shall continue to be governed by the terms of any
such Stock Option Plan and related Stock Option
Agreement(s);
(vi) In the event that any of the payments to be made
to the Employee, or the compensation received or
deemed to be received by the Employee, pursuant to or
by reason of the provisions of Section 3(B)(3) of
this Agreement result in the imposition of an excise
tax on the Employee pursuant to Section 4999 of the
Internal Revenue Code of 1986, as amended (the
"Code"), or any similar provision of state, local or
foreign tax law (the "Parachute Tax"), the Company
shall pay an additional amount to the Employee (the
"Gross-Up Payment"). The Gross-Up Payment shall be
calculated by the Company and shall equal an amount
necessary to yield the Employee, on an after-tax
basis, an amount equal to the Parachute Tax
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imposed on the Employee (including any Parachute Tax
imposed with respect to the Gross-Up Payment). The
Gross-Up Payment with respect to any Parachute Tax
shall be payable by the Company to the Employee no
later than the last day of the fiscal year in which
such Parachute Tax is imposed.
(vii) The payments in this Section 3(B)(3) shall be
subject to all applicable federal, state and local
withholding, payroll and other taxes.
If Employee breaches his obligations under the
Noncompetition, Nondisclosure and Developments
Agreement executed herewith between Employee and the
Company, the Company may immediately cease payment of
all severance and/or benefits described in this
Agreement. This cessation of severance and/or
benefits shall be in addition to, and not as an
alternative to, any other remedies in law or in
equity available to the Company, including the right
to seek specific performance or an injunction. Except
as expressly set forth in this Section 3(B), Employee
acknowledges that the Company shall not have any
further obligations to the Employee in the event of
Employee's termination under this Section 3(B),
except such further obligations as may be imposed by
law.
(C) At the election of the Company for Cause. The Company may,
immediately and unilaterally, terminate the Employee's employment
hereunder for "Cause" at any time during the term of this Agreement by
giving to the Employee written notice of such termination ten (10) days
prior to the effective date of termination. The Company may pay Employee
for this ten (10) day period in lieu of such notice. Termination of the
Employee's employment by the Company shall constitute a termination for
"Cause" if such termination is for one or more of the following causes:
(1) the substantial and continuing failure of the Employee to
render services to the Company substantially in accordance
with his assigned duties or obligations under this Agreement,
which materially and adversely affects or could materially and
adversely affect the business, prospects, financial condition,
operations, property or affairs of the Company, which is not
cured by the Employee to the satisfaction of the Company
within thirty (30) days notice to the Employee by the Company
of the failure;
(2) dishonesty, deliberate disregard of the rules or policies
of the Company, material breach of the terms of this
Agreement, which is not cured by the Employee to the
satisfaction of the Company within thirty (30) days notice to
the Employee by the Company;
(3) the commission by the Employee of an act of fraud,
embezzlement or breach of fiduciary duty;
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(4) acts of moral turpitude by the Employee which materially
adversely affect the Employee's ability to perform his duties
hereunder and represent the Company;
(5) the conviction by the Employee of a felony; or
(6) the commission of an act which constitutes unfair
competition with the Company or which induces any customer of
the Company to breach a contract with the Company.
In the event of a termination for "Cause" pursuant to the
provisions of clauses (1) through (6) above, inclusive, the
Employee shall be entitled to no severance or other
termination benefits.
(D) Benefits if Agreement Terminated Due to Death or Disability. The
Company shall have the right to terminate Employee's employment if
Employee dies or suffers physical incapacity or mental incompetence. In
the event Employee's employment shall terminate due to the physical
incapacity or mental incompetence of the Employee, the Company shall pay
the Employee an amount equal to: (i) twenty-four (24) months salary at the
then current Base Rate, less (ii) any amounts recovered by the Employee
under any health and disability insurance programs available through the
Company. For the purposes of this Agreement, the Employee shall be deemed
to have suffered physical incapacity or mental incompetence if the
Employee is unable to perform the essential functions of his job with
reasonable accommodation. Any accommodation will not be deemed reasonable
if it imposes an undue hardship on the Company. If this Agreement
terminates due to the death of Employee, Employee will not be entitled to
any payments after the date of his death.
4. Survival of Certain Provisions. Provisions of this Agreement shall
survive any termination of employment or of this Agreement if so provided herein
or if necessary or desirable to fully accomplish the purposes of such provision.
Without limiting the foregoing, the obligations of the Employee under Sections
3, 4, 5, 8 and 10 hereof and the Employee Noncompetition, Nondisclosure and
Developments Agreement of even date herewith by and between Employee and the
Company expressly survive any termination of employment or termination of this
Agreement. The obligation of the Company to make payments to or on behalf of the
Employee under Section 3(B) hereof is expressly conditioned upon Employee's
continued full performance of the obligations under the terms of Section 5 and
the Noncompetition, Nondisclosure and Developments Agreement executed herewith
between Employee and the Company.
5. Noncompetition, Nondisclosure and Developments Agreement. In
connection with his employment by the Company pursuant to the terms of this
Agreement, the Employee shall execute, prior to the execution hereof by the
Company, the Noncompetition, Nondisclosure and Developments Agreement attached
hereto as Exhibit A.
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6. Consent and Waiver by Third Parties. The Employee hereby represents
and warrants that he has obtained all waivers and/or consents from third parties
which are necessary to enable him to enjoy employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agreement
without being in conflict with any other agreement, obligation or understanding
with any such third party. The Employee represents that he is not bound by any
agreement or any other existing or previous business relationship which
conflicts with, or may conflict with, the performance of his obligations
hereunder or prevent the full performance of his duties and obligations
hereunder.
7. Governing Law. This Agreement, the employment relationship
contemplated herein and any claim arising from such relationship, whether or not
arising under this Agreement, shall be governed by and construed in accordance
with the internal laws of the Commonwealth of Massachusetts, without giving
effect to the principles of choice of law or conflicts of laws of such
Commonwealth and this Agreement shall be deemed to be performable in
Massachusetts. Any claims or legal actions by one party against the other
arising out of the relationship between the parties contemplated herein (whether
or not arising under this Agreement) shall be commenced or maintained in any
state or federal court located in Massachusetts, and Employee hereby submits to
the jurisdiction and venue of any such court.
8. Severability. In case any one or more of the provisions contained in
this Agreement or the other agreements executed in connection with the
transactions contemplated hereby for any reason shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or such
other agreements, but this Agreement or such other agreements, as the case may
be, shall be construed and reformed to the maximum extent permitted by law.
9. Waivers and Modifications. This Agreement may be modified, and the
rights, remedies and obligations contained in any provision hereof may be
waived, only in accordance with this Section 9. No waiver by either party of any
breach by the other or any provision hereof shall be deemed to be a waiver of
any later or other breach thereof or as a waiver of any other provision of this
Agreement. This Agreement sets forth all of the terms of the understandings
between the parties with reference to the subject matter set forth herein and
may not be waived, changed, discharged or terminated orally or by any course of
dealing between the parties, but only by an instrument in writing signed by the
party against whom any waiver, change, discharge or termination is sought. No
modification or waiver by the Company shall be effective without the consent of
at least a majority of the members of the Chief Executive Officer excluding the
Employee then in office at the time of such modification or waiver.
10. Assignment. The Employee acknowledges that the services to be
rendered by him hereunder are unique and personal in nature. Accordingly, the
Employee may not assign any of his rights or delegate any of his duties or
obligations under this Agreement. The rights and obligations of the Company
under this Agreement shall inure to the benefit of, and shall be binding upon,
the successors and assigns of the Company. To that end, the Company will require
any successor (a "Successor To The Business") to all or substantially all of the
business and/or assets of the Company (whether direct or indirect, by purchase,
merger, consolidation or
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otherwise), expressly to assume and agree, by agreement in form and substance
satisfactory to the Employee, to perform this Agreement in the same manner and
to the same extent that Company would be required to perform it if no such
transaction had taken place. Failure of the Company to obtain such agreement
prior to the effective date of such transaction shall be a breach of this
Agreement and shall entitle the Employee to compensation and benefits from the
Company in the same amount and on the same terms as the Employee would be
entitled hereunder if he were to terminate his employment pursuant to Section
3(B) of this Agreement. In the event the Company fails to obtain a successor's
agreement to assume this Agreement under this Section 10, the date upon which
any such transaction becomes effective shall be deemed the termination date and
Employee's employment with the Company will end on that date.
11. Acknowledgments. The Employee hereby acknowledges and recognizes
that the enforcement of any of the provisions in this Agreement and the
Noncompetition, Nondisclosure and Developments Agreement executed herewith may
potentially interfere with the Employee's ability to pursue a proper livelihood.
The Employee represents that he is knowledgeable about the business of the
Company and further represents that he is capable of pursuing a career in other
industries to earn a proper livelihood. The Employee recognizes and agrees that
the enforcement of the Noncompetition, Nondisclosure and Developments Agreement
is necessary to ensure the preservation, protection and continuity of the
business, trade secrets and goodwill of the Company. The Employee agrees that,
due to the proprietary nature of the Company's business, the restrictions set
forth in the Noncompetition, Nondisclosure and Developments Agreement are
reasonable as to time and scope.
12. Entire Agreement. This Agreement and the Noncompetition,
Nondisclosure and Developments Agreement executed herewith constitutes the
entire understanding of the parties relating to the subject matter hereof and
supersedes and cancels all agreements, written or oral, made prior to the date
hereof between the Employee and the Company relating to employment, salary,
bonus, or other compensation of any description, equity participation, pension,
post-retirement benefits, severance or other remuneration, except for the
Company stock option plan(s) and the stock option agreement(s) between the
Company and the Employee which shall remain in full force and effect in
accordance with their respective terms (except as modified by this Agreement).
13. Notices. All notices hereunder shall be in writing and shall be
delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as follows:
If to the Company, to: Sipex Corporation
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
If to the Employee, at the Employee's address set forth on the
signature page hereto.
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14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
15. Section Headings. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written as an instrument under seal.
SIPEX CORPORATION: EMPLOYEE:
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Xxxxx X. XxXxxxxx
By: /s/ Xxxxx R, XxXxxxxx
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Signature
Title:
----------------------- 0 Xxxxxxxx Xxxx
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Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
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City State Zip Code
11
Exhibit A of Employment Agreement by and between Xxxxx X. XxXxxxxx
and Sipex Corporation
EMPLOYEE NONCOMPETITION,
NONDISCLOSURE AND DEVELOPMENTS AGREEMENT
May 14, 1999
In consideration of and as a condition of my employment or continued
employment by Sipex Corporation (the "Company"), I hereby agree with the Company
as follows:
1. During the period of my employment by the Company, I shall devote my
full time and best efforts to the business of the Company and I shall neither
pursue any business opportunity outside the Company nor take any position with
any organization other than the Company without the approval of a majority of
the disinterested members of the Company's Board of Directors. Further, during
the period of my employment by the Company and for one year thereafter, I shall
not, directly or indirectly, alone or as a partner, officer, director, employee
or stockholder of any entity, (a) engage in any business activity which is in
competition with the products or services being developed, manufactured or sold
by the Company, (b) solicit or do business with any customer of the Company, or
any potential customer of the Company with whom I have had contact, in
competition with the products or services being developed, manufactured or sold
by the Company, or (c) solicit, interfere with or endeavor to entice away any
employee of the Company. For purposes of clause (a) of the preceding sentence as
it relates to the one year period following the termination of my employment by
the Company, an entity which neither sells, directly or indirectly, its products
or services to at least one of the existing customers of the Company or the
customers being actively developed or solicited by the Company nor proposes to
develop products or services for sale, directly or indirectly, to any such
customer, shall not be deemed to be in competition with the Company.
2. I shall not at any time, whether during or after the termination of
my employment, reveal to any person or entity any Confidential Information (as
defined in Exhibit A hereto), except to employees of the Company who need to
know such Confidential Information for the purposes of their employment, or as
otherwise authorized by the Company in writing, and I shall keep secret all
matters entrusted to me and shall not use or attempt to use any Confidential
Information except as may be required in the ordinary course of performing my
duties as an employee of the Company, nor shall I use any Confidential
Information in any manner which may injure or cause loss or may be calculated to
injure or cause loss to the Company, whether directly or indirectly.
Furthermore, I agree that during my employment I shall not
make, use or permit to be used any Company Documentation (as defined in Exhibit
A hereto) otherwise than for the benefit of the Company. I further agree that I
shall not, after the termination of my employment, use or permit others to use
any such Company Documentation, it being agreed that all Company Documentation
shall be and remain the sole and exclusive property of the Company. Immediately
upon the termination of my employment I shall deliver all Company Documentation
in my possession, and all copies thereof, to the Company, at its main office.
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3. If at any time or times during my employment, I shall (either alone
or with others) make, conceive, create, discover, invent or reduce to practice
any Development (as defined in Exhibit A hereto) that (a) relates to the
business of the Company or any customer of or supplier to the Company or any of
the products or services being developed, manufactured or sold by the Company or
which may be used in relation therewith; or (b) results from tasks assigned to
me by the Company; or (c) results from the use of premises or personal property
(whether tangible or intangible) owned, leased or contracted for by the Company,
then all such Developments and the benefits thereof are and shall immediately
become the sole and absolute property of the Company and its assigns, as works
made for hire or otherwise. I shall promptly disclose to the Company (or any
persons designated by it) each such Development. I hereby assign all rights
(including, but not limited to, rights to inventions, patentable subject matter,
copyrights and trademarks) I may have or may acquire in the Developments and all
benefits and/or rights resulting therefrom to the Company and its assigns
without further compensation and shall communicate, without cost or delay, and
without disclosing to others the same, all available information relating
thereto (with all necessary plans and models) to the Company.
4. Excluded from this Agreement are my developments that I cannot
assign to the Company because of a prior agreement with
____________________________________ which is effective until
______________________. (Give name and date or write "none").
5. I hereby consent to the use of my name, picture, signature, voice,
image, and/or likeness by the Company during my employment by the Company and at
any time thereafter. Further, I waive all claims I may now have or may ever have
against the Company and its officers, employees, and agents arising out of the
Company's use, adaptation, reproduction, modification, distribution, exhibition
or other commercial exploitation of my' name, picture, signature, voice, image
and/or likeness, including but not limited to right of privacy, right of
publicity and celebrity, use of voice, name or likeness, defamation and
copyright infringement. I represent and warrant that I have not made any
contract or commitment in conflict with this consent and waiver.
6. I shall, during my employment and at any time thereafter, at the
request and cost of the Company, promptly sign, execute, make and do all such
deeds, documents, acts and things as the Company and its duly authorized
officers may reasonably require:
(a) to apply for, obtain, register and vest in the name of the Company
alone (unless the Company otherwise directs) patents, copyrights,
trademarks or other analogous protection in any country throughout the
world relating to a Development and when so obtained or vested to renew
and restore the same; and
(b) to defend any judicial, opposition or other proceedings in respect
of such applications and any judicial, opposition or other proceeding,
petition or application for revocation of any such patent, copyright,
trademark or other analogous protection.
7. If the Company is unable, after reasonable effort, to secure my
signature on any application for patent, copyright, trademark or other analogous
registration or other documents regarding any legal protection relating to a
Development, whether because of my physical or
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mental incapacity or for any other reason whatsoever, I hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney-in-fact, to act for and in my behalf and stead to execute
and file any such application or applications or other documents and to do all
other lawfully permitted acts to further the prosecution and issuance of patent,
copyright or trademark registrations or any other legal protection thereon with
the same legal force and effect as if executed by me.
8. 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.
9. I understand that this Agreement does not create an obligation on
the Company or any other person or entity to continue my employment.
10. I further represent that my performance of all of the terms of this
Agreement and as an employee of the Company does not and will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I shall not enter into, any agreement either written or oral in
conflict herewith.
11. 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.
12. I hereby agree that each provision herein shall be treated as a
separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses of the
Agreement. Moreover, if one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to scope,
activity, subject or otherwise so as to be unenforceable at law, such provision
or provisions shall be construed by the appropriate judicial body by limiting or
reducing it or them, so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then appear. I hereby further agree that the
language of all parts of this Agreement shall in all cases be construed as a
whole according to its fair meaning and not strictly for or against either of
the parties.
13. Any amendment to or modification of this Agreement, or any waiver
of any provision hereof, shall be in writing and signed by the Company.
14. 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.
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15. 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.
16. This Agreement 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 of
Massachusetts, without giving effect to the principles of conflicts of laws of
such state. Any claims or legal actions by one party against the other arising
out of the relationship between the parties contemplated herein (whether or not
arising under this Agreement) shall be governed by the laws of the Commonwealth
of Massachusetts and shall be commenced and maintained in any state or federal
court located in such state, and I hereby submit to the jurisdiction and venue
of any such court.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as a
sealed instrument as of the date first above written.
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Xxxxx X. XxXxxxxx
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Name - Please Print
Address:
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15
EXHIBIT A
DEFINITIONS
The term "Company" shall include Sipex Corporation and any of its
subsidiaries, divisions, or affiliates. 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.
The term "Company Documentation" shall mean notes, memoranda, reports,
lists, records, drawings, sketches, specifications, software programs, data,
documentation or other materials of any nature and in any form, whether written,
printed, or in digital format or otherwise, relating to any matter within the
scope of the business of the Company or concerning any of its dealings or
affairs.
The term "Confidential Information" shall mean any information
concerning the organization, business or finances of the Company or of any third
party which the Company is under an obligation to keep confidential that is
maintained by the Company as confidential. Such Confidential Information shall
include, but is not limited to, trade secrets or confidential information
respecting inventions, products, designs, methods, know-how, techniques,
systems, processes, software programs, works of authorship, customer lists,
projects, plans and proposals.
The term "Development" shall mean any invention, modification,
discovery, design, development, improvement, process, software program, work of
authorship, documentation, formula, data, technique, know-how, trade secret or
intellectual property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright, trademark or similar statutes
(including but not limited to the Semiconductor Chip Protection Act) or subject
to analogous protection).
