EMPLOYMENT AGREEMENT
EXHIBIT
10.2
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), made as of this 7th
day of
February 2007, is entered into by Xxxxxx, Inc. a Delaware corporation (the
“Company”), and Xxxxx X. Xxxxxxx (the “Employee”).
The
Company desires to employ the Employee, and the Employee desires to be employed
by the Company. In consideration of the mutual covenants and promises contained
in this Agreement, and other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged by the parties to this Agreement,
the parties agree as follows:
1. Term
of Employment.
The
Company hereby agrees to employ the Employee, and the Employee hereby accepts
employment with the Company, upon the terms set forth in this Agreement,
for the
period commencing on the date hereof (the “Commencement Date”) and ending on
December 31, 2008 (such period, the “Initial Employment Period” and as it may be
extended, the “Employment Period”), unless sooner terminated in accordance with
the provisions of Section 4. On December 31, 2008, if not previously
terminated, this Agreement shall automatically renew and the Employment Period
be extended until December 31, 2009 unless the Company shall elect not to
so
extend the Employment Period and shall have given written notice to the Employee
of such election on or before October 1, 2008.
2. Title;
Capacity.
The
Employee shall serve as Vice President and General Counsel or in such other
position as the Company’s Board of Directors (the “Board”) or its Chief
Executive Officer may determine from time to time. The Employee shall be
based
at the Company’s headquarters in Rhode Island or at such place or places in the
continental United States as the Board and the Employee shall mutually
determine. The Employee shall be subject to the supervision of, and shall
have
such authority as is delegated to the Employee by, the Board or the Chief
Executive Officer of the Company.
The
Employee hereby accepts such employment and agrees to undertake the duties
and
responsibilities inherent in such position and such other duties and
responsibilities as the Board or the Chief Executive Officer shall from time
to
time reasonably assign to the Employee. The Employee agrees to devote his
entire
business time, attention and energies to the business and interests of the
Company during the Employment Period. The Employee agrees to abide by the
rules,
regulations, instructions, personnel practices and policies of the Company
and
any changes therein which may be adopted from time to time by the
Company.
3. Compensation
and Benefits.
3.1 Salary.
The
Company shall pay the Employee, in periodic installments in accordance with
the
Company’s customary payroll practices, an annual base salary $148,500. Such
salary shall be subject to increase but not decrease thereafter as determined
by
the Board and shall be reviewed at least annually by the Board..
3.2 Bonus.
The
Compensation Committee, in its sole discretion, may award the Employee a
bonus
or bonuses during the term hereof.
3.3 Equity
Incentive.
(a) The
Company shall, upon the execution hereof, grant to the Employee an option
to
purchase 135,000 shares of the common stock of the Company (“Common Stock”). To
the extent permitted by the Internal Revenue Code, said options shall be
incentive stock options. Said options shall be granted at the fair market
value
and expire on the eighth anniversary of their grant. Said options shall vest
as
follows:
|
Number
of Shares
|
Vesting
Date
|
|
25,000
|
February
1, 2008
|
|
20,000
|
February
1, 2009
|
|
25,000
|
February
1, 20010
|
|
30,000
|
February
1, 2011
|
|
35,000
|
February
1, 2012
|
Such
grants shall provide that after a Change in Control Event (as defined
in
Schedule A
hereto),
all restrictions on the exercise thereof shall lift and such options shall
vest
upon (a) the termination by the Company of the Employee’s employment, unless
such termination is for Cause (as defined in Section 4.2) or (b) the resignation
of Employee for Good Reason (as defined in Section 4.3).
3.4 Fringe
Benefits.
The
Employee shall be entitled to participate in all bonus and benefit programs
that
the Company establishes and makes available to its employees, if any, to
the
extent that Employee’s position, tenure, salary, age, health and other
qualifications make him eligible to participate.
3.5 Reimbursement
of Expenses.
The
Company shall reimburse the Employee for all reasonable travel, entertainment
and other expenses incurred or paid by the Employee in connection with, or
related to, the performance of his duties, responsibilities or services under
this Agreement, in accordance with policies and procedures, and subject to
limitations, adopted by the Company from time to time.
3.6 Withholding.
All
salary, bonus and other compensation payable to the Employee shall be subject
to
applicable withholding taxes.
3.7 Professional
Liability Coverage.
During
the Employment Period, Company shall maintain professional liability coverage
covering employed lawyers’ professional liability reasonable satisfactory to
Employee in an amount not less than $1,000,000.
4. Termination
of Employment Period.
The
employment of the Employee by the Company pursuant to this Agreement shall
terminate upon the occurrence of any of the following:
4.1 Expiration
of the Employment Period;
4.2 At
the
election of the Company, for Cause (as defined below), immediately upon written
notice by the Company to the Employee, which notice shall identify the Cause
upon which the termination is based. For the purposes of this Section 4.2,
“Cause” shall mean (a) a good faith finding by the Company that
(i) the Employee has failed in any material respect to perform his
reasonably assigned duties for the Company and has failed to remedy such
failure
within 10 days following written notice from the Company to the Employee
notifying him of such failure, or (ii) the Employee has engaged in
dishonesty, gross negligence or misconduct with respect to the Company, or
(b) the conviction of the Employee of, or the entry of a pleading of guilty
or nolo contendere by the Employee to, any crime involving moral turpitude
or
any felony;
4.3 At
the
election of the Employee, for Good Reason (as defined below), immediately
upon
written notice by the Employee to the Company, which notice shall identify
the
Good Reason upon which the termination is based. For the purposes of this
Section 4.3, “Good Reason” for termination shall mean (i) a material adverse
change in the Employee’s authority, duties or compensation without the prior
consent of the Employee, (ii) a material breach by the Company of the terms
of
this Agreement (other than of Section 3.7), which breach is not remedied
by the
Company within 10 days following written notice from the Employee to the
Company
notifying it of such breach or (iii) any requirement imposed by Section 307
of
the Xxxxxxxx-Xxxxx Act or any rule promulgated thereunder.
4.4 Upon
the
death or disability of the Employee. As used in this Agreement, the term
“disability” shall mean the inability of the Employee, due to a physical or
mental disability, for a period of 90 days, whether or not consecutive, during
any 360-day period to perform the services contemplated under this Agreement,
with or without reasonable accommodation as that term is defined under state
or
federal law. A determination of disability shall be made by a physician
satisfactory to both the Employee and the Company, provided that
if the
Employee and the Company do not agree on a physician, the Employee and the
Company shall each select a physician and these two together shall select
a
third physician, whose determination as to disability shall be binding on
all
parties;
4.5 At
the
election of either party, upon not less than 30 days’ prior written notice of
termination.
5. Effect
of Termination.
5.1 At-Will
Employment.
If the
Employment Period expires pursuant to Section 1 hereof, then, unless the
Company
notifies the Employee to the contrary, the Employee shall continue his
employment on an at-will basis following the expiration of the Employment
Period. Such at-will employment relationship may be terminated by either
party
at any time and shall not be governed by the terms of this
Agreement.
5.2 Payments
Upon Termination.
(a) In
the
event the Employee’s employment is terminated pursuant to Section 4.1, Section
4.2 or by the Employee pursuant to Section 4.5, the Company shall pay to
the
Employee the compensation and benefits otherwise payable to him under Section
3
through the last day of his actual employment by the Company.
(b) In
the
event the Employee’s employment is terminated by the Employee pursuant to
Section 4.3 or by the Company pursuant to Section 4.5, the Company shall
continue to pay to the Employee his salary as in effect on the date of
termination and continue to provide to the Employee the other benefits owed
to
him under Section 3.4 (to the extent such benefits can be provided to
non-employees, or to the extent such benefits cannot be provided to
non-employees, then the cash equivalent thereof) until the date one year
after
the date of termination and for the purposes of the vesting of options to
purchase common stock granted to the Employee pursuant to Section 3.3, the
Employee shall be deemed to be employed by the Company until the date three
years after the date of termination. The payment to the Employee of the amounts
payable under this Section 5.2(b) (i) shall be contingent upon the execution
by
the Employee of a release in a form reasonably acceptable to the Company
and
(ii) shall constitute the sole remedy of the Employee in the event of a
termination of the Employee’s employment in the circumstances set forth in this
Section 5.2(b).
(c) In
the
event the Employee’s employment is terminated pursuant to Section 4.4, the
Company shall continue to pay to the Employee (or his estate) his salary
as in
effect on the date of termination and the amount of the annual bonus paid
to him
for the fiscal year immediately preceding the date of termination (payable
in
annualized monthly installments) and, if such termination was on account
of
disability, continue to provide to the Employee the other benefits owed to
him
under Section 3.4 (to the extent such benefits can be provided to non-employees,
or to the extent such benefits cannot be provided to non-employees, then
the
cash equivalent thereof) until the date one year after the date of termination
and for the purposes of the vesting of options to purchase common stock granted
to the Employee pursuant to Section 3.3, the Employee shall be deemed to
be
employed by the Company until the date one year after the date of termination.
The amounts payable to the Employee under this Section 5.2(c) shall be reduced
by the aggregate amount of all insurance proceeds paid to the Employee or
his
beneficiaries pursuant to insurance policies paid for by the
Company.
5.3 Survival.
The
provisions of Sections 5.2, 6 and 7 shall survive the termination of this
Agreement.
6. Non-Competition
and Non-Solicitation.
6.1 Restricted
Activities.
While
the Employee is employed by the Company and for a period of one year after
the
termination or cessation of such employment for any reason, the Employee
will
not directly or indirectly:
(a) Engage
in
any business or enterprise (whether as owner, partner, officer, director,
employee, consultant, investor, lender or otherwise, except as the holder
of not
more than 1% of the outstanding stock of a publicly-held company) that develops,
manufactures, markets, licenses, sells or provides any product or service
that
competes with any product or service developed, manufactured, marketed,
licensed, sold or provided, or planned to be developed, manufactured, marketed,
licensed, sold or provided, by the Company while the Employee was employed
by
the Company; or
(b) Either
alone or in association with others (i) solicit, or permit any organization
directly or indirectly controlled by the Employee to solicit, any employee
of
the Company to leave the employ of the Company, or (ii) solicit for
employment or permit any organization directly or indirectly controlled by
the
Employee to solicit for any person who was employed by the Company at any
time
during the term the Employee’s employment with the Company; provided,
that
this clause (ii) shall not apply to the solicitation, hiring or engagement
of
any individual whose employment with the Company has been terminated for
a
period of six months or longer.
6.2 Extension.
If the
Employee violates the provisions of Section 6.1, the Employee shall continue
to
be bound by the restrictions set forth in Section 6.1 until a period of two
years has expired without any violation of such provisions.
6.3 Interpretation.
If any
restriction set forth in Section 6.1 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period
of
time or over too great a range of activities or in too broad a geographic
area,
it shall be interpreted to extend only over the maximum period of time, range
of
activities or geographic area as to which it may be enforceable.
6.4 Equitable
Remedies.
The
restrictions contained in this Section 6 are necessary for the protection
of the business and goodwill of the Company and are considered by the Employee
to be reasonable for such purpose. The Employee agrees that any breach of
this
Section 6 is likely to cause the Company substantial and irrevocable damage
which is difficult to measure. Therefore, in the event of any such breach
or
threatened breach, the Employee agrees that the Company, in addition to such
other remedies which may be available, shall have the right to obtain an
injunction from a court restraining such a breach or threatened breach and
the
right to specific performance of the provisions of this Section 6 and the
Employee hereby waives the adequacy of a remedy at law as a defense to such
relief.
7. Proprietary
Information and Developments.
7.1 Proprietary
Information.
(a) The
Employee agrees that all information, whether or not in writing, of a private,
secret or confidential nature concerning the Company’s business, business
relationships or financial affairs (collectively, “Proprietary Information”) is
and shall be the exclusive property of the Company. By way of illustration,
but
not limitation, Proprietary Information may include inventions, products,
processes, methods, techniques, formulas, compositions, compounds, projects,
developments, plans, research data, clinical data, financial data, personnel
data, computer programs, customer and supplier lists, and contacts at or
knowledge of customers or prospective customers of the Company. The Employee
will not disclose any Proprietary Information to any person or entity other
than
employees of the Company or use the same for any purposes (other than in
the
performance of his duties as an employee of the Company) without written
approval by an officer of the Company, either during or after his employment
with the Company, unless and until such Proprietary Information has become
public knowledge without fault by the Employee.
(b) The
Employee agrees that all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or other written,
photographic, or other tangible material containing Proprietary Information,
whether created by the Employee or others, which shall come into his custody
or
possession, shall be and are the exclusive property of the Company to be
used by
the Employee only in the performance of his duties for the Company. All such
materials or copies thereof and all tangible property of the Company in the
custody or possession of the Employee shall be delivered to the Company,
upon
the earlier of (i) a request by the Company or (ii) termination of his
employment. After such delivery, the Employee shall not retain any such
materials or copies thereof or any such tangible property.
(c) The
Employee agrees that his obligation not to disclose or to use information
and
materials of the types set forth in paragraphs (a) and (b) above, and his
obligation to return materials and tangible property, set forth in
paragraph (b) above, also extends to such types of information, materials
and tangible property of customers of the Company or suppliers to the Company
or
other third parties who may have disclosed or entrusted the same to the Company
or to the Employee.
7.2 Developments.
(a) The
Employee will make full and prompt disclosure to the Company of all inventions,
improvements, discoveries, methods, developments, software, and works of
authorship, whether patentable or not, which are created, made, conceived
or
reduced to practice by him or under his direction or jointly with others
during
his employment by the Company, whether or not during normal working hours
or on
the premises of the Company (all of which are collectively referred to in
this
Agreement as “Developments”). Notwithstanding the foregoing, the term
“Developments” does
not
include
any written works and any software concepts that are unrelated to the Company’s
business and are not created during Company time.
(b) The
Employee agrees to assign and does hereby assign to the Company (or any person
or entity designated by the Company) all his right, title and interest in
and to
all Developments and all related patents, patent applications, copyrights
and
copyright applications. However, this paragraph (b) shall not apply to
Developments which do not relate to the business or research and development
conducted or planned to be conducted by the Company at the time such Development
is created, made, conceived or reduced to practice and which are made and
conceived by the Employee not during normal working hours, not on the Company’s
premises and not using the Company’s tools, devices, equipment or Proprietary
Information. The Employee understands that, to the extent this Agreement
shall
be construed in accordance with the laws of any state which precludes a
requirement in an employee agreement to assign certain classes of inventions
made by an employee, this paragraph (b) shall be interpreted not to apply
to any invention which a court rules and/or the Company agrees falls within
such
classes. The Employee also hereby waives all claims to moral rights in any
Developments.
(c) The
Employee agrees to cooperate fully with the Company, both during and after
his
employment with the Company, with respect to the procurement, maintenance
and
enforcement of copyrights, patents and other intellectual property rights
(both
in the United States and foreign countries) relating to Developments. The
Employee shall sign all papers, including, without limitation, copyright
applications, patent applications, declarations, oaths, formal assignments,
assignments of priority rights, and powers of attorney, which the Company
may
deem necessary or desirable in order to protect its rights and interests
in any
Development. The Employee further agrees that if the Company is unable, after
reasonable effort, to secure the signature of the Employee on any such papers,
any executive officer of the Company shall be entitled to execute any such
papers as the agent and the attorney-in-fact of the Employee, and the Employee
hereby irrevocably designates and appoints each executive officer of the
Company
as his agent and attorney-in-fact to execute any such papers on his behalf,
and
to take any and all actions as the Company may deem necessary or desirable
in
order to protect its rights and interests in any Development, under the
conditions described in this sentence.
7.3 United
States Government Obligations.
The
Employee acknowledges that the Company from time to time may have agreements
with other parties or with the United States Government, or agencies thereof,
which impose obligations or restrictions on the Company regarding inventions
made during the course of work under such agreements or regarding the
confidential nature of such work. The Employee agrees to be bound by all
such
obligations and restrictions which are made known to the Employee and to
take
all appropriate action necessary to discharge the obligations of the Company
under such agreements.
7.4 Equitable
Remedies.
The
restrictions contained in this Section 7 are necessary for the protection
of the business and goodwill of the Company and are considered by the Employee
to be reasonable for such purpose. The Employee agrees that any breach of
this
Section 7 is likely to cause the Company substantial and irrevocable damage
which is difficult to measure. Therefore, in the event of any such breach
or
threatened breach, the Employee agrees that the Company, in addition to such
other remedies which may be available, shall have the right to obtain an
injunction from a court restraining such a breach or threatened breach and
the
right to specific performance of the provisions of this Section 7 and the
Employee hereby waives the adequacy of a remedy at law as a defense to such
relief.
8. Other
Agreements.
The
Employee represents that his performance of all the terms of this Agreement
and
the performance of his duties as an employee of the Company do not and will
not
breach any agreement with any prior employer or other party to which the
Employee is a party (including without limitation any nondisclosure or
non-competition agreement). Any agreement to which the Employee is a party
relating to nondisclosure, non-competition or non-solicitation of employees
or
customers is listed on Schedule
B
attached
hereto.
9. Miscellaneous.
9.1 Notices.
Any
notices delivered under this Agreement shall be deemed duly delivered four
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent for
next-business day delivery via a reputable nationwide overnight courier service,
in each case to the address of the recipient set forth in the introductory
paragraph hereto. Either party may change the address to which notices are
to be
delivered by giving notice of such change to the other party in the manner
set
forth in this Section 9.1.
9.2 Pronouns.
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
forms of nouns and pronouns shall include the plural, and vice
versa.
9.3 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties and supersedes
all prior agreements and understandings, whether written or oral, relating
to
the subject matter of this Agreement; provided, however, that it is acknowledged
and agreed by the Company and the Employee that stock option grants made
by the
Company to the Employee prior to the date hereof are not superseded hereby
and
each such grant remains in full force and effect in accordance with its
terms.
9.4 Amendment.
This
Agreement may be amended or modified only by a written instrument executed
by
both the Company and the Employee.
9.5 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Rhode Island (without reference to the conflicts of laws provisions
thereof). Any action, suit or other legal proceeding arising under or relating
to any provision of this Agreement shall be commenced only in a court of
the
State of Rhode Island (or, if appropriate, a federal court located within
Rhode
Island), and the Company and the Employee each consents to the jurisdiction
of
such a court. The Company and the Employee each hereby irrevocably waive
any
right to a trial by jury in any action, suit or other legal proceeding arising
under or relating to any provision of this Agreement.
9.6 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of both parties
and
their respective successors and assigns, including any corporation with which,
or into which, the Company may be merged or which may succeed to the Company’s
assets or business, provided, however, that the obligations of the Employee
are
personal and shall not be assigned by him. Notwithstanding the foregoing,
if the
Company is merged with or into a third party which is engaged in multiple
lines
of business, or if a third party engaged in multiple lines of business succeeds
to the Company’s assets or business, then for purposes of Section 6.1(a), the
term “Company” shall mean and refer to the business of the Company as it existed
immediately prior to such event and as it subsequently develops and not to
the
third party’s other businesses.
9.7 Waivers.
No
delay or omission by the Company in exercising any right under this Agreement
shall operate as a waiver of that or any other right. A waiver or consent
given
by the Company on any one occasion shall be effective only in that instance
and
shall not be construed as a bar or waiver of any right on any other
occasion.
9.8 Captions.
The
captions of the sections of this Agreement are for convenience of reference
only
and in no way define, limit or affect the scope or substance of any section
of
this Agreement.
9.9 Severability.
In case
any provision of this Agreement shall be invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
THE
EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND
UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year set forth above.
|
XXXXXX,
INC.
|
|
|
By:
/s/ Xxxxx X. Xxxxxxx
|
|
|
Chief
Financial Officer
|
|
|
EMPLOYEE
|
|
|
By:
/s/ Xxxxx X. Xxxxxxx
|
|
|
Xxxxx
X. Xxxxxxx
|
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SCHEDULE
A
Change
in
Control Definition
A
“Change
in Control Event” shall mean:
|
(i)
|
the
acquisition by an individual, entity or group (within the meaning
of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of
beneficial ownership of any capital stock of the Company if, after
such
acquisition, such Person beneficially owns (within the meaning
of Rule
13d-3 promulgated under the Exchange Act) 30% or more of either
(x) the
then-outstanding shares of common stock of the Company (the “Outstanding
Company Common Stock”) or (y) the combined voting power of the
then-outstanding securities of the Company entitled to vote generally
in
the election of directors (the “Outstanding Company Voting Securities”);
provided,
however,
that for purposes of this subsection (i), the following acquisitions
shall
not constitute a Change in Control Event: (A) any acquisition directly
from the Company (excluding an acquisition pursuant to the exercise,
conversion or exchange of any security exercisable for, convertible
into
or exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging such security
acquired such security directly from the Company or an underwriter
or
agent of the Company), (B) any acquisition by any employee benefit
plan
(or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, (C) any acquisition by any
corporation pursuant to a Business Combination (as defined below)
which
complies with clauses (x) and (y) of subsection (iii) of this definition,
or (D) any acquisition by Silver Star Partners I, LLC or its affiliates
(each such party is referred to herein as an “Exempt Person”) of any
shares of capital stock of the Company;
or
|
|
(ii)
|
such
time as the Continuing Directors (as defined below) do not constitute
a
majority of the Board (or, if applicable, the Board of Directors
of a
successor corporation to the Company), where the term “Continuing
Director” means at any date a member of the Board (x) who was a member of
the Board on the date hereof or (y) who was nominated or elected
subsequent to such date by at least a majority of the directors
who were
Continuing Directors at the time of such nomination or election
or whose
election to the Board was recommended or endorsed by at least a
majority
of the directors who were Continuing Directors at the time of such
nomination or election; provided,
however,
that there shall be excluded from this clause (y) any individual
whose
initial assumption of office occurred as a result of an actual
or
threatened election contest with respect to the election or removal
of
directors or other actual or threatened solicitation of proxies
or
consents, by or on behalf of a person other than the Board;
or
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(iii)
|
the
consummation of a merger, consolidation, reorganization, recapitalization
or share exchange involving the Company or a sale or other disposition
of
all or substantially all of the assets of the Company (a “Business
Combination”), unless, immediately following such Business Combination,
each of the following two conditions is satisfied: (x) all or
substantially all of the individuals and entities who were the beneficial
owners of the Outstanding Company Common Stock and Outstanding
Company
Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the
then-outstanding shares of common stock and the combined voting
power of
the then-outstanding securities entitled to vote generally in the
election
of directors, respectively, of the resulting or acquiring corporation
in
such Business Combination (which shall include, without limitation,
a
corporation which as a result of such transaction owns the Company
or
substantially all of the Company’s assets either directly or through one
or more subsidiaries) (such resulting or acquiring corporation
is referred
to herein as the “Acquiring Corporation”) in substantially the same
proportions as their ownership of the Outstanding Company Common
Stock and
Outstanding Company Voting Securities, respectively, immediately
prior to
such Business Combination and (y) no Person (excluding Exempt Persons,
the
Acquiring Corporation or any employee benefit plan (or related
trust)
maintained or sponsored by the Company or by the Acquiring Corporation)
beneficially owns, directly or indirectly, 30% or more of the
then-outstanding shares of common stock of the Acquiring Corporation,
or
of the combined voting power of the then-outstanding securities
of such
corporation entitled to vote generally in the election of directors
(except to the extent that such ownership existed prior to the
Business
Combination).
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SCHEDULE
B
Prior
Agreements
None.
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