EMPLOYMENT AGREEMENT
Exhibit
10.45
THIS
AGREEMENT is made and entered into
as of the 4th day of June, 2007, by and between Micron Products, Inc.
(“Micron”), with its principal place of business located in Fitchburg,
Massachusetts, and Xxxxxxx X. Xxxxx (“Employee”), who resides in Brentwood, New
Hampshire.
WHEREAS,
Micron desires to retain the
services of Employee as Chief Operating Officer (“COO”) and Employee desires to
be employed by Micron in such capacity, all upon the terms and subject to
the
conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the
recitals and the mutual covenants and undertakings herein, each Party agrees
as
follows:
1. Employment
and Duties. Micron hereby agrees to employ Employee, and Employee
hereby accepts employment, as Chief Operating Officer, upon the terms and
conditions hereinafter set forth, both Parties expressly revoking any and
all
prior employment agreements between them. Employee hereby agrees to
serve Micron in such capacity for the period commencing on June 4, 2007 (the
“Effective Date”) and continuing for the period stated in Paragraph 2 and upon
the terms and conditions herein provided.
In
his capacity as Chief Operating
Officer, Employee, to the best of his abilities, shall be responsible for
the
work as further described in the “Position Description,” attached hereto as
“Exhibit A” and incorporated by reference herein, and shall perform such other
directly related duties consistent with his position as Chief Operating
Officer. As Chief Operating Officer, Employee shall report directly
to Micron’s President and Chief Executive Officer (“CEO”), and Employee agrees
to perform such duties as may be assigned to him from time to time.
Employee
hereby represents and warrants
that he is not now subject to any agreement which is or would be inconsistent
or
in conflict with his obligations hereunder.
2. Exclusive
Services. Employee agrees that he will, during the employment
term, devote his entire working time, attention and best efforts to the
performance of the duties as aforesaid and to the business and interests
of
Micron, and he shall perform such duties as may be assigned to him ably,
faithfully and diligently. Employee shall not at any time or in any
manner, either directly or indirectly, be involved in any other occupation
while
in the employ of Micron unless agreed to specifically by Micron.
3. Term
of Employment. The period of Employee’s employment under this
Agreement shall commence as of the Effective Date and terminate June 3, 2008,
unless earlier terminated pursuant to the terms hereof. This
Agreement shall be renewed for successive one year terms, unless one party
notifies the other in writing within thirty (30) days of the expiration of
the
then current term of its intention to terminate the Agreement.
4. Compensation.
(a) Salary. As
compensation for the services to be rendered by Employee under this Agreement,
Micron agrees to pay, and Employee agrees to accept, a base salary at the
annualized rate of $125,000, payable in accordance with the Company’s regular
payroll practices, subject to withholding and other applicable
taxes. Employee’s base salary rate shall be subject to an annual
review by the President and CEO or his designee.
(b) Bonus. In
each year of this Agreement, Employee shall be eligible to receive a
discretionary performance bonus. The specific goals criteria for
earning such bonus will be mutually agreed upon by the parties at the beginning
of each year of this Agreement.
(c) All
of Employee’s compensation is subject to deductions for regular payroll taxes
and withholding, as required by State and Federal law, as well as other
deductions that Employee authorizes.
(d) Fringe
Benefits. Employee also shall be entitled to the following
benefits in each year of this Agreement:
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(i)
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Employee
shall be eligible to participate in Micron’s various benefit plans
(including health, dental, life, disability and retirement) on
the same
basis as Micron’s other employees;
and
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(ii)
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Employee
shall be eligible to receive Micron’s various paid time off benefits
(including paid vacations and holiday) on the same basis as Micron’s other
employees.
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X-1a
5. Confidentiality. Employee
is aware that Micron develops and utilizes, and that he will have, or has
had
and will continue to have, access to valuable technical and nontechnical
trade
secrets and confidential information including, but not limited to, knowledge,
information and materials about Micron’s trade secrets, mailing lists, methods
of operation, advertiser lists, advertisers, customer lists, customers or
clients, products, services, know-how, business plans and confidential
information about financial, marketing, pricing, compensation and other
proprietary matters relating to Micron which are not in the public domain
(“Confidential Information”), all of which constitutes a valuable part of the
assets of Micron which Micron seeks to protect.
Accordingly,
Employee shall not at any
time during or after the termination of his employment by Micron reveal,
disclose or make known to any person (other than as may be required by law
or in
the performance of his duties), or use for his own or another’s account or
benefit, any such Confidential Information, whether or not developed, devised
or
otherwise created in whole or in part by the efforts of Employee.
Employee
represents and warrants that
he has not revealed, disclosed or made known to any person (other than as
may be
required by law or in the performance of his duties), or used for his own
or
another’s account or benefit, any such Confidential Information, whether or not
developed, devised or otherwise created in whole or in part by the efforts
of
Employee.
Upon
cessation of Employee’s
employment, no documents, records or other matter or information belonging
to
Micron, whether prepared by Employee or otherwise, and relating in any way
to
the business of Micron, shall be taken or kept by Employee without the written
consent of Micron.
6. Non-Competition. Employee
acknowledges that, in the course of his employment as Chief Operating Officer
by
Micron, he will have access to Micron’s Confidential Information; and he will be
intimately and directly involved in developing and maintaining Micron’s goodwill
and serving Micron’s customers and prospective customers located throughout the
world. Accordingly, Employee agrees as follows:
(a) To
the extent permitted by law, during Employee’s employment by Micron and for a
period of two (2) years after Employee has ceased to be employed by Micron
for
any reason, Employee shall not, without the prior written consent of Micron,
directly or indirectly engage in, assist or have an interest in (whether
as
proprietor, partner, investor, stockholder, officer, director or any type
of
principal), or enter the employment of or act as an agent for or advisor
or
consultant to, any person, firm, partnership, association, corporation, business
organization, entity or enterprise which is, or is about to become, directly
or
indirectly engaged in any business which is directly or indirectly competitive
with Micron; provided,
however, that Employee may own less than five percent (5%) of the outstanding
equity securities of a Corporation that is engaged in such a competitive
business if the equity securities of such Corporation are publicly traded
and
registered under the Securities Exchange Act of 1934; and
(b) During
Employee’s employment by Micron and for a period of two (2) years after Employee
has ceased to be employed by Micron for any reason, Employee shall not, without
prior written consent of Micron:
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i.
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directly
or indirectly solicit or accept any business substantially similar
to that
done by Micron from any person, company, firm or organization,
or any
affiliate of the foregoing, which is or was a client, customer
or active
prospect of Micron, for or on account of any individual, business
enterprise, firm, partnership, association or corporation other
than
Micron; or
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ii.
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directly
or indirectly solicit the employment of, entice away, or in any
other
manner persuade or attempt to persuade to leave Micron’s employment, any
person employed by Micron; or
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iii.
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take
any action prejudicial to Micron or its business affairs or
interests.
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7. Innovations.
(a) Employee
hereby assigns, transfers and conveys to Micron and its successors and assigns
any and all inventions, processes, procedures, systems, discoveries, designs,
configurations, technology, works of authorship, trade secrets and improvements
(whether or not they are made, conceived or reduced to practice during working
hours or using Micron’s data or facilities) (collectively, “Innovations”) which
Employee makes, conceives, reduces to practice or otherwise acquires during
any
period of his engagement by Micron (either solely or jointly with others),
and
which are related to Micron's present or planned business, Micron’s services or
products, and any and all patents, copyrights, trademarks, trade names and
applications therefore, in the United States and elsewhere, relating
thereto. The Innovations shall be the sole property of Micron and
shall at all times be held by Employee in a fiduciary capacity for the sole
benefit of Micron.
X-1b
(b) All
such Innovations that consist of works of authorship capable of protection
under
copyright laws shall be prepared by Employee as works made for hire, with
the
understanding that Micron shall own all of the exclusive rights to such works
of
authorship under the United States copyright law and all international copyright
conventions and foreign laws. The foregoing notwithstanding, to the
extent that any such Innovation is not deemed a work made for hire, Employee
hereby assigns to Micron such Innovation and any and all patents, copyrights,
trademarks, trade names and applications therefor, in the United States and
elsewhere, relating thereto.
(c) Employee
shall maintain adequate and current written records of all such Innovations,
which shall be available to and remain the sole property of Micron at all
times. Employee shall promptly disclose to Micron all such
Innovations and shall assist Micron in obtaining and enforcing for its own
benefit patents and copyright registrations on and in respect of such
Innovations in all countries in all ways that Micron may request, to secure
and
enjoy the full benefits and advantages of such Innovations. Employee
understands that his obligations under this section shall continue after
the
termination of Employee’s engagement by Micron.
8. Injunctive
Relief. Employee acknowledges that the restrictions contained in
paragraphs 5, 6 and 7 above, in view of the nature of the business in which
Micron is engaged, are reasonable and necessary to protect the legitimate
interests of Micron. Employee understands that the remedies at law
for his violation of any of the covenants or provisions of paragraphs 5,
6 or 7
may be inadequate, that such violations may cause irreparable injury within
a
short period of time, and that Micron shall be entitled to seek preliminary
injunctive relief and other injunctive relief against such
violation. Such injunctive relief shall be in addition to, and in no
way in limitation of, any and all other remedies Micron shall have in law
and
equity for the enforcement of those covenants and provisions.
9. Termination
for Cause. This Agreement may be terminated by Micron for
cause. No compensation shall be paid or other benefits furnished to
Employee after termination for cause. Such a termination shall be
effective immediately upon written notice being issued to
Employee. “Cause” means (i) willful and deliberate
misconduct by Employee, such as being under the influence of drugs or alcohol
on
the job, dishonesty, misappropriation of assets, insubordination or refusal
to
follow reasonable directives and other misconduct of comparable magnitude
and
kind; (ii) willful neglect of duty or other material breach of this Agreement
by
Employee; (iii) commission of any act of fraud involving Micron, involvement
in
any material conflict of interest or self-dealing involving Micron, or
conviction of a felony or any offenses involving moral turpitude or any criminal
offense involving Micron; (iv) any act or omission by Employee which has
a
material adverse effect on the business activities, financial condition,
affairs
or reputation of Micron; (v) violation of any of Micron’s policies or (vi)
Employee’s failure or refusal to perform a substantial or important portion of
his duties under this Agreement, which failure or refusal continues for 30
days
after written notice to Employee, which notice reasonably informs him of
such
failure or refusal.
10. Termination
Other Than for Cause.
(a) Death
or Disability. If Employee dies or becomes totally disabled
during the term of this Agreement, Employee’s employment and salary shall
terminate at the end of the month during which death or total disability
occurs,
and no other compensation or benefits shall be paid to Employee. For
the purposes of this Agreement, Employee shall be deemed to be “totally
disabled” if he has been unable to perform his duties by reason of medical
condition for 90 days in any 365-day period, all as determined in good faith
by
Micron’s President and CEO, or his designee.
(b) Resignation. Notwithstanding
any other provision of this Agreement, Employee shall have the right to
terminate this Agreement, without cause, upon thirty (30) days’ written notice
to the President and CEO of Micron. Upon such termination, no further
compensation or benefits shall be paid to Employee.
(c) Other
“Without Cause” Termination. This Agreement may be
terminated immediately by Micron without cause
or for reasons other than
“cause”
as
defined in Paragraph
9. In the event of such termination, Micron shall pay Employee, as a
severance benefit, six (6) months’ pay (at his most recent regular rate of pay);
provided, however, that, as a prerequisite to receiving such severance pay,
he
shall be required to sign a separation agreement, including a release
of claims against Micron and its
affiliated entities, and their employees and directors.
X-1c
11. Mediation/Arbitration
of Disputes. In the event of a dispute between the parties,
Employee and Micron agree to work cooperatively to resolve the dispute amicably
at appropriate, mutually determined management levels. In the event
that a resolution at such management levels does not occur, either party
may
submit the dispute to mediation. Both parties shall agree on one
mediator and participate in said mediation in good faith. If the
matter has not been resolved pursuant to mediation within sixty (60) days
of the
commencement of such procedure, which may be extended by mutual agreement
of the
parties, the dispute shall be settled by final and binding arbitration in
Worcester, Massachusetts in accordance with the rules then prevailing of
the
American Arbitration Association. Judgment upon the award rendered by
the arbitrators may be entered in any court of competent jurisdiction, and
each
party shall bear his or its own costs, including attorneys’ fees. Notwithstanding the
foregoing, any dispute relating
Employee’s obligations pursuant to
Paragraphs 5, 6, and 7 above shall not be subject
to the mediation/arbitration provisions
set forth in this Paragraph 11.
12. Agreement
Binding Upon Successors. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns, personal representatives, heirs, legatees and beneficiaries, provided,
however, that Employee may not delegate his duties and obligations hereunder
to
any other person, and further provided that no assignment of this Agreement
by
Micron shall relieve Micron of any of its obligations under the terms of
this
Agreement.
13. Waiver
of Breach. The waiver of either party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any
subsequent breach by either Micron or Employee. The failure to
enforce any provision(s) of this Agreement shall not be construed as a waiver
of
such provision(s).
14. Severability. It
is the desire and intent of the Parties that the provisions of this Agreement
be
enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Each
provision of this Agreement or part thereof shall be severable. If
for any reason any provision or part thereof of this Agreement is finally
determined to be invalid and contrary to, or in conflict with any existing
or
future law or regulation of a court or agency having valid jurisdiction,
such
determination shall not impair the operation or affect the remaining provisions
of this Agreement, and such remaining provisions will continue to be given
full
force and effect and bind each Party.
15. Notices. Any
notices or other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given
if
delivered personally, or sent by registered or certified mail, return receipt
requested, postage prepaid, to the address listed below for the parties,
or to
such other address as any party may hereafter direct in writing to the other
party.
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To
Micron:
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To
Employee:
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Micron
Products, Inc.
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Xxxxxxx
X. Xxxxx
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25
Xxxxxx Passway
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00
Xxxxxx Xxxx
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Xxxxxxxxx,
XX 00000
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Xxxxxxxxx,
XX 00000
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Attn:
President & CEO
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16. Entire
Agreement; Amendment. This instrument contains the entire
agreement of the Parties. It may not be changed orally but only by an
agreement in writing signed by both parties hereto.
17. Governing
Law. This Agreement is made in, and shall be governed by, the
laws of the Commonwealth of Massachusetts without reference to its conflict
of
laws provisions.
IN
WITNESS WHEREOF, the parties hereto,
individually or by their duly authorized representatives, have executed and
delivered this Agreement to be effective as of the day and year first above
written.
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MICRON
PRODUCTS, INC.
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EMPLOYEE
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By: /s/
Xxxxx X. Xxxxx
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/s/
Xxxxxxx X. Xxxxx
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Xxxxx
X.
Xxxxx
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Xxxxxxx
X. Xxxxx
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President
& Chief Executive Officer
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X-1d
