EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Agreement is entered into on September 12, 1996, by and between
Rheometric Scientific, Inc., a New Jersey corporation ("Company") and
Xxxx X. Xxxxxxxx, a New Jersey resident ("Executive").
Background
A. Executive is currently the Chief Operating Officer and Senior
Vice President of the Company.
B. Executive and the Company are parties to an Employment
Agreement dated May 26, 1992 ("1992 Agreement"), which they now wish to
amend and restate.
C. Each of the Company and Executive acknowledge that it is to
their mutual and respective benefit to enter into this Amended and
Restated Employment Agreement ("Agreement").
Now, therefore, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, the
Company and Executive hereby agree as follows:
1. Employment and Term..
(a) The Company hereby agrees to continue to employ Executive and
the Executive hereby agrees to continue to serve the Company, subject to
and upon the terms and conditions set forth below.
(b) Subject to the provisions of Section 6 hereof, the period of the
Executive's employment by the Company under
this Agreement (the "Employment Term") will commence on the date of this
Agreement and will continue through June 30, 1997. The Employment Term
will continue thereafter on a year-to-year basis, unless the Company
provides Executive notice (at least 3 months prior to June 30, 1997 or
the first anniversary of the continuation then in effect) that the
Company has elected not to continue the Employment Term for the next
year. The last day of the Employment Term, without regard to any early
termination pursuant to Section 6, is herein referred to as the
"Expiration Date."
2. Executive Position and Duties and Responsibilities.
During the Employment Term, the Executive will continue to serve as
the Chief Operating Officer and Senior Vice President of the Company,
with such management and executive duties and responsibilities as may be
assigned to him from time to time by the Company's Board of Directors and
the Company's Chief Executive Officer, provided that such duties and
responsibilities are consistent with the current duties and
responsibilities of the Executive's positions.
3. Compensation and Reimbursement of Expenses.
During the Employment Term, Executive will receive the following
compensation and benefits from the Company:
(a) Base Salary. The Executive will receive an annual base salary,
payable no less frequently than bi-weekly, at the annual rate of $
149,100.12, subject to any increase the Board of
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Directors may provide in its sole discretion (the "Base Salary").
(b) Bonus. Executive will be entitled to receive incentive
compensation based on the performance of the Executive and the Company in
accordance with and subject to the terms and conditions of the Management
Incentive Bonus Program of the Company.
(c) Reimbursement of Expenses. The Executive will be reimbursed for
all reasonable expenses incurred by him in performing services hereunder
upon presentation to the Company by the Executive of documentation
acceptable to the Company under its standard policies.
(d) Benefits. The Executive will be entitled to participate in or
receive the benefits he currently receives (as listed on Schedule A) and
such other benefits as the Company may generally grant to its executive
officers.
(e) Vacation and Leave. The Executive will be entitled to
four (4) weeks annually of vacation during which his compensation
pursuant to this Section 3 will be paid in full, provided that the
Executive will give reasonable notice to the Chief Executive Officer of
the Company of desired vacation periods and no more than two (2) weeks of
vacation will be taken within any thirty (30) day period. Vacation time
not taken by the Executive in any given year will not accrue to
succeeding years unless the standard policies of the Company provide
otherwise. Leaves of absence may be granted by the Board of
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Directors in its sole discretion. The Company shall pay the Executive
for past unused vacation time accrued prior to December 31, 1995 at the
time of a Change in Control or approval by the president and/or CEO (as
defined in Section 12).
4. Performance of Duties.
During the Employment Term the Executive will devote his entire
business time and attention to the performance of his duties under this
Agreement and will serve the Company diligently and to the best of his
abilities and will not engage in any other business activity without the
prior written approval of the Board of Directors, provided that the
Executive may, with the prior approval of the Board of Directors, serve
on boards of directors of other corporations or institutions, if such
service, in the opinion of the Board of Directors, presents no conflict
with the Company.
5. Restrictive Covenants.
(a) Acknowledgments. The Executive acknowledges that:
(i) His position with the Company requires the performance of services
that are special, unique and intellectual in character and he is and will
be in a position of confidence and trust with the employees and customers
of the Company and its subsidiaries and their joint venture partners,
through which he has obtained or will obtain, among other things,
knowledge of such organizations and their customers, in which those
organizations have a proprietary interest, and
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(ii) The restrictive covenants set forth in this Agreement are
necessary in order to protect such proprietary information and other
legitimate business interests of the Company and its subsidiaries and
their joint venture partners and that the Company would not have entered
into this Agreement unless those restrictive covenants were included, and
(iii) The business and sales efforts of the Company are
conducted on a worldwide basis and that he has personally supervised or
engaged in such business and will continue to do so pursuant and subject
to the terms of this Agreement, and
(iv) The enforcement of the restrictive covenants set forth in
this Agreement will not prevent him from maintaining a livelihood.
(b) Noncompetition and Nonsolicitation.
(i) Mandatory Restrictions during Employment. Subject to the
further provisions of this Section 5, for so long as the Executive is
employed pursuant to the terms of this Agreement and without any
requirement of further payment therefor, Executive shall not take any of
the actions set forth in Section 5(b)(iii) hereof anywhere in the world
without the prior express written consent of the Company.
(ii) Mandatory Restrictions following term of Employment. (A)
Subject to the further provisions of this Section 5, in the event of
Voluntary Termination (as defined
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hereinafter) by the Executive or in the event of Company Termination for
Cause (as defined hereinafter) and without any requirement of further
payment therefor, Executive shall not take any of the actions set forth
in Section 5(b)(iii)(A)or 5(b)(iii)(B)(I)hereof anywhere in the world
for one (1) year following termination of employment hereunder and
Executive shall not take any of the actions set forth in Section
5(b)(iii)(B)(II) or Section 5(b)(iii)(B)(III) hereof anywhere in the
world for two(2) years following termination of employment hereunder.
(B) Subject to the further provisions of this Section 5, in
the event of an Involuntary Termination by Executive (as defined
hereinafter); Company Termination Without Cause (as defined hereinafter);
or Termination Upon Disability (as defined hereinafter), the Executive
shall not, without the prior written consent of the Company take any of
the actions set forth in Section 5(b)(iii)(A)or 5(b)(iii)(B)(I) within
the "Restricted Period" (as defined below)and shall not take any of the
actions set forth in Section 5(b)(iii)(B)(II) or Section
5(b)(iii)(B)(III)for a period of two (2) years following the termination
of employment hereunder anywhere in the world. For purposes of this
Agreement "Restricted Period" means the period of time in which Executive
is entitled to receive payments and benefits under Section 7(a), 7(b) or
7(c), as the case may be, notwithstanding any reduction or elimination of
those payments and benefits pursuant to the second sentence of Section
7(d).
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(iii) Prohibited Actions. To the extent that this Section
5(b)(iii) is expressly made applicable by other provisions of this
Agreement, the Executive shall not:
(A) directly or indirectly (whether for compensation or
otherwise), alone or as an agent, principal, partner, officer, employee,
trustee, director, shareholder, consultant or in any other capacity, own,
manage, operate, control, or participate in the ownership, management,
operation or control of any business which competes with the business of
the Company or its subsidiaries or their joint venture partners as it may
be conducted at the time of termination of employment provided, however
that nothing in this Section 5(b)(iii)(A) will prohibit the Executive
from acquiring or holding not greater than one percent of any class of
publicly traded securities of any business; or
(B) directly or indirectly (I) approach or solicit for
business or otherwise deal with any customer of the Company or its
subsidiaries or their joint venture partners other than on behalf of the
Company, (II) approach or attempt to induce any employee of the Company
or its subsidiaries or their joint venture partners to leave the employ
of the Company or its subsidiaries or their joint venture partners, (III)
employ any person who is an employee of the Company or its subsidiaries
or their joint venture partners on the date of, or within the six months
preceding, the termination of the employment of
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Executive, or (IV) aid or counsel any other person to undertake any
action listed in (I),(II) or (III) above.
For the purposes of this Section 5, "customer" means any customer of the
Company during the last two years of the Executive's employment with the
Company or any prospective customer to whom the Company made a
presentation (or similar offering of services) during the last year of
Executive's employment with the Company.
(c) Confidentiality. Executive shall comply with the terms of a
certain agreement containing (a) restrictions of confidential information
and (b) inventions and discoveries by executive (among other provisions)
(the "Confidentiality Agreement") as attached hereto as Exhibit A.
(d) The parties hereby agree that the restrictions contained in
this Section 5 and the Confidentiality Agreement are reasonable in scope
and duration. However, in the event a court of competent jurisdiction
determines finally that the duration or scope of any provision of this
Section 5 and the Confidentiality Agreement is unreasonable or
unenforceable in part, then this Section 5 and the Confidentiality
Agreement will be deemed to be amended so as to contain such provisions
as the court will deem reasonable and enforceable.
(e) Notwithstanding any provision to the contrary in Section 5 (b),
the restrictions contained in subsections (A) and (B) of Section
5(b)(iii) will continue for any period in excess
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of the applicable period following termination of employment in which
Executive continues to receive compensation under Section 7 of this
Agreement.
6. Termination of Employment. Subject to the further provisions
of this Agreement, the Company and Executive may terminate the employment
of Executive under this Agreement prior to the Expiration Date as
follows:
(a) Voluntary Termination by the Executive. The Executive may
terminate his employment under this Agreement at any time (a "Voluntary
Termination by Executive").
(b) Involuntary Termination by Executive. The Executive may
terminate his employment under this Agreement at any time for good
reason. "Good reason" means (i) the assignment to the Executive of any
duties inconsistent with his present duties and responsibilities or any
reduction or elimination of those duties or responsibilities as Chief
Operating Officer and Senior Vice President, (ii) the withdrawal by the
Company of the title of Chief Operating Officer and Senior Vice President
from the Executive without his consent; (iii) the Company's requirement
that the Executive maintain his principal office or conduct his
principal activities (other than business trips) from anywhere other than
the present principal executive offices of the Company in Piscataway, New
Jersey; (iv) the failure by the Company to obtain the assumption and
agreement to perform this Agreement on the terms described in Section 12;
or (v) the breach by the
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Company of any material obligation of the Company under this Agreement,
provided that any breach of a payment obligation to the Executive under
this Agreement will constitute "good reason" only if the breach is not
cured within five days of notice by Executive.
(c) Termination Without Cause. The Company may, at any time,
terminate the Executive's employment under this Agreement without cause
(a "Company Termination Without Cause").
(d) Termination for Cause. Notwithstanding anything to the
contrary contained in this Agreement, the Company may terminate the
Executive's employment under this Agreement at any time for cause (a
"Company Termination for Cause"). As used herein, the term "for cause"
means (1) the Executive's conviction for a felony under the laws of the
United States or any state or political subdivision, (2) misappropriation
by the Executive of company funds or other misconduct materially
injurious to the Company, (3) breach of the Executive's fiduciary duty to
the Company involving personal profit or (4) material breach of this
Agreement by the Executive.
(e) Termination Upon Death or Disability of the Executive. In the
event that the Executive dies, his employment hereunder will be deemed
terminated without further action ("Termination Upon Death"). In the
event that the Executive is declared incompetent by a court of
appropriate jurisdiction, or is unable to perform his duties hereunder
for a continuous period
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exceeding six (6) months by reason of illness or disability, then, upon
at least thirty (30) days' advance notice following the event giving rise
to the power to terminate hereunder, the Company may terminate the
Executive's employment under this Agreement ("Termination Upon
Disability"). Executive agrees to take such reasonable actions
(including providing full and accurate information requested by insurers)
as may be necessary to allow the Company to obtain and maintain, for its
own benefit, life and disability insurance covering the Executive.
(f) Notice of Termination. Except for a Termination Upon Death,
any purported termination of employment under Sections 6(a) through 6(e)
of this Agreement will be communicated by a written notice of termination
from the party exercising its right to terminate ("Notifying Party") to
the other party ("Responding Party"). For the purposes of this
Agreement, a "Notice of Termination" will indicate the specific
termination provision in this Agreement relied upon and will set forth in
reasonable detail the facts and circumstances then known to the Notifying
Party which are claimed to provide a basis for termination under the
provision so indicated, provided, however, that no recitation of facts
and circumstances will be required in respect to a Company Termination
Without Cause or a Voluntary Termination by Executive.
7. Payments and Benefits Following Termination Pursuant to Section
6.
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(a) Before a Change in Control. Following a Company Termination
Without Cause, an Involuntary Termination by Executive, a Termination for
Death or a Termination for Disability, to the extent such a termination
occurs before a Change in Control (as defined in Section 12 hereof), the
Executive (or his personal representative) will receive until the
Expiration Date:
(i) One hundred percent of the salary set forth in Section
3(a) as the same may have been increased from time to time, payment of
which will be at the time provided for in this Agreement as if the
Executive's employment under this Agreement had not terminated, minus, in
the event of a Termination for Disability, the amount of any disability
benefits provided for the Executive under any sickness, retirement or
other benefit plans provided by the Company,
(ii) Health (as to the Executive and his dependents who are
covered as of the termination), life and disability insurance coverage
substantially comparable to those furnished to the Executive by the
Company immediately prior to the termination of employment hereunder,
(iii) the full amount of reimbursement of expenses incurred
through the date of termination of employment in accordance with Section
3(d), and
(iv) the full amount which would have been due under any bonus
or profit-sharing plan, or similar arrangement, under
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which the Executive was eligible prior to termination for the full fiscal
year (or other applicable period) during which the termination occurred,
subject to a prorated reduction in the event of a Section 6(e)
Termination for the period of time in such fiscal year (or other
applicable period) following the termination.
(b) Within Three Months Following a Change in Control. Following a
Company Termination Without Cause, a Voluntary Termination by Executive,
Involuntary Termination by Executive, a Termination for Death or a
Termination for Disability, to the extent such a termination occurs on a
Change in Control (as defined in Section 12 hereof) or within the three
months following such Change in Control, the Executive (or his personal
representative) will receive the salary, payments and benefits described
in Section 7(a) above until the first annual anniversary of the
termination.
(c) Following the Three Month Anniversary of a Change in Control.
Following a Company Termination Without Cause, an Involuntary Termination
by Executive, a Termination for Death or a Termination for Disability, to
the extent such a termination occurs on or after the three month
anniversary of a Change in Control (as defined in Section 12 hereof), the
Executive (or his personal representative) will receive the salary,
payments and benefits described in Section 7(a) above until the later of
the sixth month anniversary of the termination or the Expiration
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Date.
(d) In the event of a Company Termination Without Cause, an
Involuntary Termination by Executive, or a Voluntary Termination by
Executive under Section 7(b), the above payments and benefits will
constitute the sole damages to which Executive will be entitled as a
result of such termination. Executive will not be required to mitigate
his damages under this Agreement by seeking employment or otherwise;
provided, however, that in the event the Executive does provide personal
services to a third party in exchange for compensation or benefits, or
both, the payments and benefits hereunder, to the extent they have not
yet been paid or received, will be appropriately reduced to reflect the
compensation and benefits that result to Executive from such other
employment. In addition, in the event Executive is paid under Section
7(b) following a Voluntary Termination by Executive or if an Involuntary
Termination by Executive occurs for the reason described in (iii) of
Section 6(b), the Executive will provide from time to time though the
Expiration Date and at the request of the Company, notwithstanding such
termination, part-time (i.e., no more than 10 hours per week)
consultation and advice on such executive and technical matters as are
consistent with the Executive's background at mutually convenient times
and places without interference with the Executive's ability to perform
employment elsewhere and he shall be reimbursed for reasonable expenses
in accordance with this Agreement.
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(e) The Executive will have no right to receive compensation or any
other benefits for any period after a Company Termination for Cause or a
Voluntary Termination by Executive (except as provided in Section 7(b)
above), other than the reimbursement or expenses pursuant to Section 3(c)
incurred through the date of termination or as required by law.
8. Reserved.
9. Survival. This Agreement (except for Sections 1, 2, 3, and 4)
will remain in full force and effect notwithstanding any termination of
Executive's employment prior to the Expiration Date. This Agreement
(except for Sections 1, 2, 4 and 3 (other than in respect to compensation
and expense reimbursements earned but not paid)) will remain in full
force and effect notwithstanding the termination of Executive's
employment under this Agreement on the Expiration Date. Nothing in this
Agreement will be construed (i) to provide the Executive any continued
right to employment with the Company or its affiliates following the
Employment Term or (ii) to provide the Company or its affiliates any
continued right to employ the Executive following the Employment Term.
10. Withholding of Taxes. The Company may withhold from any
payments under this Agreement all applicable taxes, as will be required
pursuant to any law or governmental regulation or ruling.
11. Prior Agreements.This Agreement constitutes the
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entire agreement and understanding between the parties with respect to
the subject matter hereof. This Agreement amends and restates the 1992
Agreement and supersedes all other prior agreements and understandings
with respect to such subject matter between and among the Company and the
Executive.
12. Consolidation or Merger, Change in Control. Nothing in this
Agreement will preclude the Company from consolidating or merging into or
with, or transferring all or substantially all of the Company's assets to
(any of the foregoing, a "Purchase Transaction")any person or entity
("Purchaser"). In the event such person or entity assumes all obligations
of the Company hereunder by written agreement reasonably acceptable to
the Executive, then upon the closing of the Purchase Transaction the
terms "Company" will refer to the Purchaser and this Agreement will
continue in full force and effect. For purposes of this Agreement,
"Change in Control" means:
(a) any event by which (i) an "Acquiring Person"(as defined
below)has become such, or (ii) "Continuing Directors (as defined below)
cease to comprise a majority of the members of the board of directors of
the Company (the "Board"). For purposes of this definition an "Acquiring
Person" means any person or group (as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder as in effect on the date of this
Agreement (the "Exchange Act")) who or which, together with all
affiliates and
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associates (as defined in Rule 12b-2 under the Exchange Act) becomes the
beneficial owner of shares of the Company having 50% or more of the total
number of votes that may be cast for the election of directors of the
Company; and "Continuing Director" means any member of the Board, while
such person is a member of the Board, who is not an Acquiring Person, or
an affiliate or associate of an Acquiring Person or a representative of
an Acquiring Person or of any such affiliate or associate and who (i) was
a member of the Board prior to the date of this Agreement, or (ii)
subsequently becomes a member of such Board and whose nomination for
election or election to the Board is recommended or approved by
resolution of a majority of the Continuing Directors or who is included
as a nominee in a proxy statement of the Company distributed when a
majority of the Board consists of Continuing Directors, or
(b) The consolidation or merger of the Company with, or the transfer
of all or substantially all of the Company's assets to, any person or
entity not controlled by the Company or by an affiliate or affiliates of
the Company (as defined in Rule 12b-2 under the Exchange Act).
13. Arbitration; Availability of Equitable Relief.
(a) Except as provided in subsection (b) of this Section, any
dispute, controversy or claim arising under or in connection with this
Agreement will be settled by arbitration in the City of Newark, State of
New Jersey, conducted in accordance with the
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rules of the American Arbitration Association, and judgment upon the
award rendered in such arbitration may be entered in any court of
competent jurisdiction. The hearing or any such claim, controversy or
dispute will be heard with 60 days of written notice of the same, and
such hearing will not exceed five business days. Each party will pay its
own expenses.
(b) Executive acknowledges that the remedy at law for any breach or
threatened breach of Section 5 of this Agreement will be inadequate, and
that the Company will, in addition to all other available remedies, be
entitled to injunctive relief restraining the Executive from such breach
without being required to post bond or other security and without having
to prove the inadequacy of the available remedies at law.
14. General Provision.
(a) Non-Assignability. In the event of the Executive's death, this
Agreement and the Executive's rights hereunder will inure to the benefit
of his personal representatives and heirs. Except as set forth in the
preceding sentence and in Section 12, neither this Agreement nor any
right or interest hereunder will be assignable by the Company or the
Executive.
(b) No Attachment. Except as otherwise required by law, including
the laws of descent and distribution, no right to receive payments under
this Agreement will be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge or hypothecation or to
execution,
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attachment, levy or similar process or assignment by operation of law,
and any attempt, voluntary or involuntary, to effect any such action will
be null, void and of no effect.
15. Amendment. No amendment or modification of this Agreement
will be deemed effective unless executed in writing by the parties
hereto, and approved by the Board of Directors of the Company.
16. Severability. If for any reason any provision of this
Agreement will be held invalid, such invalidity will not affect any other
provision of this Agreement not held so invalid, and all other such
provisions will to the full extent consistent with law continue in full
force and effect. If any such provision will be held invalid in part,
such invalidity will in no way affect the rest of such provision not held
so invalid, and the rest of such provision, together with all other
provisions of this Agreement, will likewise to the full extent consistent
with law continue in full force and effect.
17. Headings. The headings are included solely for convenience of
reference and will not control the meaning or interpretation of any of
the provisions of this Agreement.
18. Governing Law. This Agreement has been executed and delivered
in the State of New Jersey and its validity, interpretation, performance
and enforcement will be governed by and construed in accordance with the
laws thereof applicable to contracts executed and to be wholly performed
in the State of New
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Jersey.
19. Consent to Jurisdiction. The Executive hereby irrevocably
consents to the exclusive jurisdiction of the courts of the State of New
Jersey and of any federal courts located within the State of New Jersey
for all purposes in connection with any action or proceeding which arises
out of or relates to this Agreement and agrees that service of summons,
complaint or process in connection therewith may be made as set forth in
this Agreement with respect to giving notices and that service so made
will be as effective as if personally made.
20. Notices. All notices, requests, demands and other
communications hereunder will be in writing and will be deemed to have
been duly given if delivered by hand or mailed, certified or registered
mail, return receipt requested, with postage prepaid, to the following
addresses or to such other address as any party hereto may designated by
like notice:
A. If to Executive, to:
Xxxx X. Xxxxxxxx
00 Xxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
B. With a copy to:
_________________________________
_________________________________
_________________________________
C. If to the Company, to:
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Rheometric Scientific, Inc.
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx XX 00000
D. With copies to:
Xxxxxx Xxxxx, Esquire
Crummy Del Xxx Xxxxx Griffinger
& Xxxxxxxxx
0 Xxxxxxxxxx Xxxxx
Xxxxxx XX 00000
and
R. Xxxxxxx Xxxxxxxxx, President
Axess Corporation
000 Xxxxxxxxxxx Xxxx.
Xxxxxx XX 00000
and to such other or additional person or persons (but no more than two
persons) as either party will have designated to the other party in
writing by like notice.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officers, and the Executive has signed
this Agreement, all as of the day and year first above written.
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ R. E. Xxxxx
____________________
Title: CEO
EXECUTIVE
WITNESS:
/s/ Xxxxxxxx X. Xxxxxxxxxx /s/ Xxxx X. Xxxxxxxx
__________________________ _____________________
Xxxx X. Xxxxxxxx
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Schedule A
Current Benefits
1. Medical and dental insurance as per the company's overall plan.
2. Reimbursement of medical and dental expenses in excess of the
company plan for officers and their dependents in an amount not to exceed
$10,000,00 per year.
3. Company vacation policy with option to take pay in lieu of vacation
days, as limited by policy.
4. Provided company car or appropriate car allowance as per present
company policy.
5. Long term disability policy.
Life insurance as per company policy.
Accidental death and business travel coverage as per Company
provided plan.
Company provided plan
6. 401(k) as per the Company ERISA qualified plan.
7. Stock option plan or equivalent.
8. Membership in one health club.
9. Severance: Greater of contract amount or company policy
EXHIBIT A
CONFIDENTIALITY AGREEMENT
TO: Rheometric Scientific, Inc.
Piscataway, New Jersey
RE: Employee Confidential and Proprietary Information Agreement
In consideration of my employment with Rheometric Scientific, Inc.
("Company") and of the salary or wages paid for my services in the course
of such employment, I agree as follows:
(A) to communicate to the Company promptly and fully and to assign to
the Company all inventions or significant technical or business
innovations developed or conceived solely by me or jointly with others
from the time of entering the Company's employ until any termination of
my employment, (1) which are along the lines of the business, work or
investigations of the Company, of (2) which result from or are suggested
by any work which I may do for or on behalf of the Company;
(B) to execute all necessary papers and otherwise to assist the Company
during and subsequent to such employment in every proper way (entirely at
its expense) to obtain for its own benefit patents, copyrights or other
legal protection for such inventions, or for publications pertaining to
them, in any and all countries, said inventions and innovations to be the
exclusive property of the Company, whether or not patented or
copyrighted;
(C) to make and maintain adequate and current written records of all
such inventions or innovations, in the form of notes, sketches, drawings,
or reports relating thereto, which records shall be and remain the
property of and available to the Company at all times;
(D) upon any termination of my employment, promptly to deliver to the
Company, all drawings, blueprints, manuals, letters, notes, notebooks,
reports, models and other materials (including all copies) which are of a
secret or confidential nature relating to the business of the Company,
and which are in my possession or under my control;
(E) except as the Company may otherwise consent in writing, not to
publish or otherwise disclose (except as my Company duties may require)
either during or subsequent to my employment, any information, knowledge,
or data of the Company or its customers which I may reveive or develop
during the course of my employment relating to inventions, discoveries,
formulas, processes, machines, manufactures, compositions, computer
programs, accounting methods, information systems or business or
financial plans or reports, or relating to other matters which are of a
secret or confidential nature;
(F) to notify the Company in writing before I make any disclosure or
perform or cause to be performed any work for or on behalf of the Company
which appears to threaten conflict with (1) rights I claim in any
invention or idea (a) conceived by me or others prior to my employment of
(b) otherwise outside the scope of this agreement, or (2) rights of
others arising out of obligations incurred by me (d) prior to this
agreement or (b) otherwise outside the scope of this agreement. In the
event of my failure to give notice under the circumstances specified in
(1) of the foregoing, the Company may assume that no such conflicting
invention or idea exists, and I agree that I will make no claim against
the Company with respect to the use of any such invention or idea in any
work or the product of any work which I perform or cause to be performed
for or on behalf of the Company.
Discharge of my undertakings in this agreement shall be an
obligation of my executors, administrators, or other legal
representatives of assigns.
This agreement may not on behalf of or in respect to the Company be
changed or modified or released, discharged, abandoned, or otherwise
terminated, in while or in part, except by an instrument in writing
signed by an officer or other authorized executive of the Company.
I represent that except as stated on the reverse side of this
agreement, I have no agreements with or obligations to others in conflict
with the foregoing.
Discharge of my undertakings to the Company in this agreement shall
apply with equal vigor to any present or future subsidiaries or
affiliates of the Company and to any successor(s) interest to the
business and/or assets of the Company by way of acquisition, merger,
consolidation or liquidation at any time in the future and shall be
enforceable by any of the foregoing entities. I recognize that the
remedies provided to Rheometrics, Inc. (and to any other entities in
whose favor this agreement shall run) are inadequate at law and this
undertaking on my part
shall be enforceable to the extent of all forms of equitable relief
permitted by the laws of the State of New Jersey or any other
jurisdiction in which this agreement may become enforceable.
(Signed) /s/ Xxxx X. Xxxxxxxx
______________________
Xxxx X. Xxxxxxxx
(Date) 9/12/96
________________________
WITNESS: /s/ Xxxxxxxx X. Xxxxxxxxxx
___________________________
/s/ R. E. Xxxxx
_____________________________________
President, Rheometric Scientific, Inc.
