Exhibit 10.18
[GRAPHIC]
EMPLOYMENT AND NON-COMPETITION AGREEMENT
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THIS AGREEMENT is made this 1st day of May, 2002, by and between ADE
Corporation ("ADE") and Xxxxx Xxxxx ("Employee").
In consideration of Employee's continued employment with ADE and other
good and valuable consideration, including the salary and other remuneration and
benefits paid by ADE to the Employee while employed by ADE, and in consideration
of the benefits provided in this Agreement the receipt and sufficiency of which
is hereby acknowledged by the parties, the parties agree:
1. TRADE SECRETS, CONFIDENTIAL INFORMATION AND INVENTIONS
The Employee agrees that ADE is engaged in the highly competitive
business of infrastructure performance management solutions. ADE's involvement
in this business has required and continues to require the expenditure of
substantial amounts of money and the use of skills developed over a long period
of time. As a result of these investments of money, skill and time, ADE has
developed and will continue to develop certain valuable trade secrets,
confidential information and inventions that are peculiar to ADE's business and
the disclosure of which would cause ADE great and irreparable harm.
(a) The term "Trade Secrets" means any information protected as Trade
Secrets under Massachusetts or other applicable law and includes scientific or
technical information, design, process, procedure, formula, or improvement that
is valuable and not generally known to ADE's competitors. To the fullest extent
consistent with the foregoing, Trade Secrets shall include, without limitation,
all information and documentation, whether or not patented, copyrighted or
trademarked, pertaining to the design, specifications, capacity, testing,
installation, implementation and customizing techniques and procedures
concerning ADE's products and services.
(b) The term "Confidential Information" means any data or information
and documentation, other than Trade Secrets, which is valuable to ADE and not
generally known to the public, including without limitation:
1. Product information, including but not limited to designs,
specifications, modifications, advancements and discoveries;
2. Financial information, including but not limited to earnings,
assets, debts, prices, fee structures, volumes of purchases or
sales, or other financial data, whether relating to ADE
generally, or to particular products, services, geographic
areas, or time periods;
3. Supply and service information, including but not limited to
information concerning the goods and services used or
purchased by ADE, the names and addresses of suppliers, terms
of supplier service contracts, or of particular transactions,
or related information about potential suppliers, to the
extent that such information is not generally known to the
public, and to the extent that the combination of suppliers
or use of particular suppliers, though generally known or
available, yields advantages to ADE the details of which are
not generally known;
4. Marketing information, including but not limited to details
about ongoing or proposed marketing programs or agreements by
or on behalf of ADE, marketing forecasts, results of marketing
efforts or information about impending transactions;
5. Personnel information, including but not limited to employees'
personal or medical histories, compensation or other terms of
employment, actual or proposed promotions, hiring,
resignations, disciplinary actions, terminations or reasons
therefore, training methods, performance or other employee
information;
6. Customer information, including but not limited to any
compilations of past, existing or prospective customers,
customer proposals or agreements between customers and ADE,
status of customer accounts or credit, or related information
about actual or prospective customers; and
7. Business information, including but not limited to business
plans, minutes of board meetings, financial reports,
strategic plans, operations manuals and best practices
memoranda.
2. DISCLOSURE AND ASSIGNMENT OF TRADE SECRETS, CONFIDENTIAL INFORMATION
AND/OR OTHER WORKS AND INVENTIONS
The Employee agrees that with respect to any and all Trade Secrets,
Confidential Information and/or other works and inventions made or conceived by
him/her while employed
by ADE, including any time of employment prior to the date of this Agreement (or
within one year of the termination of his/her employment if based on or related
to ADE's Trade Secrets or Confidential Information), whether solely or jointly
with any other person or organization, during or after regular hours of
employment:
(a) The Employee will disclose promptly to ADE all such Trade Secrets,
Confidential Information and other works and inventions.
(b) The Employee will execute and promptly deliver to ADE (at ADE's
expense) such written instruments and do such other acts as may be required to
patent, copyright or otherwise protect such Trade Secrets, Confidential
Information and other works and inventions, and any documentation or other
materials pertaining thereto, and to vest the entire right and title thereof in
ADE.
(c) All such Trade Secrets, Confidential Information and other works
and inventions, together with any documentation or other materials pertaining
thereto, shall be considered work made for hire and prepared by the Employee
within the scope of his/her employment by ADE.
(d) The employee assigns all rights and ADE shall have the perpetual,
exclusive and unlimited right, without cost, to use in its business and to
sublicense and assign, in whole or in part, any of such Trade Secrets,
Confidential Information or other works and inventions, and to make, use and
sell any and all products, processes, research and services derived from any of
such Trade Secrets, Confidential Information or other works and inventions. This
includes, but is not limited to, using, making and selling products, processes
and/or services derived from such Trade Secrets, Confidential Information or
other works and inventions.
(e) If ADE 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 regarding Trade
Secrets, Confidential Information or other works and inventions, whether
because of my physical or mental incapacity or for any other reason whatsoever,
I hereby irrevocably designate and appoint ADE and its duly authorized officers
and agents as my agent and attorney-in-fact to act for and in my behalf and 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.
3. NON-DISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION
The Employee agrees, except as specifically required in the performance
of his/her duties for ADE, that he/she will not, while employed by ADE,
including any time of employment prior to the date of this Agreement and for so
long thereafter as the pertinent information or documentation remains a Trade
Secret or Confidential Information, directly or indirectly use, disclose or
disseminate to any other person, organization or entity or otherwise employ any
Trade Secret or Confidential Information. Nothing in this paragraph shall
preclude the employee from disclosing or using Trade Secrets or Confidential
Information if:
(a) the Trade Secrets or Confidential Information have become generally
known, at the time the Trade Secrets or Confidential Information are used or
disclosed, to the public or to competitors of ADE through no act or omission of
the Employee or
(b) the disclosure of the Trade Secrets or Confidential Information is
required to be made by any law, regulation, governmental body or authority, or
court order. In the event that disclosure is required, the Employee agrees to
notify ADE within 24 hours of receipt of any demand for disclosure of such
information.
4. RETURN OF PROPERTY
The Employee agrees that he/she will deliver to ADE upon the conclusion
of his/her employment, and at any other time upon ADE's request all Confidential
Information, Trade Secrets, memoranda, notes, records, computers, computer
programs, computer files, computer disks, drawings or other documentation, and
all copies thereof, in his/her possession, custody or control, whether made or
compiled by the Employee alone or with others or made available to him/her while
employed by ADE. The Employee further agrees to sign a statement verifying that
he/she has returned all such property.
5. NON-ASSERTION OF RIGHTS AND ABSENCE OF CONFLICTING AGREEMENTS
Except for the matters listed in Schedule "A" to this Agreement, the
Employee does not and will not assert any rights to any inventions, discoveries,
concepts or ideas, or improvements thereof or know-how related thereto, as
having been made or acquired by the Employee prior to his/her employment with
ADE, or since the date of his/her employment and not otherwise covered by the
terms of this Agreement. The Employee represents and warrants that his/her
performance of all the terms of this Agreement, as well as the performance of
his/her duties as an employee of ADE, does not and will not breach any agreement
with any other entity to preserve the confidentiality of any information. The
Employee further acknowledges that he has not entered into, and will not enter
into, any agreement that would be in conflict with this Agreement. The Employee
also represents and warrants that he/she has delivered to ADE a true and correct
copy of any employment, non-competition, non-solicitation or confidentiality
agreement, or related agreement, to which he/she is or was a party and which
remains or may remain in effect as of the date of this Agreement.
6. DEVOTION OF SERVICES
The Employee agrees to devote his/her best efforts to the services of
ADE in such capacity as ADE from time to time shall direct. The Employee further
agrees that while employed by ADE he/she will not have any direct or indirect
financial interest in any entity reasonably deemed to compete with ADE with the
exception of shares in publicly traded companies.
7. NON-COMPETITION
The Employee agrees that during his/her employment with ADE and for one
year after the conclusion of his/her employment with ADE under whatever
circumstances, the Employee shall not, directly or indirectly, on his/her own
behalf or another's behalf, be employed by, be contracted to, own, manage,
operate, control, participate in, or be associated in any manner with the
ownership, management, operation or control of any company or business which is,
or will be, in competition with the products or services offered or being
developed by ADE at the time of termination of his/her employment with ADE. In
recognition of the global nature of ADE's business, employee agrees that this
restriction shall apply worldwide.
8. NON-SOLICITATION OF CUSTOMERS & SUPPLIERS
The Employee agrees that for twelve months after the conclusion of
his/her employment he/she will not directly or indirectly solicit, contact, call
upon, communicate with or attempt to communicate with any customer, former
customer, prospective customer, supplier, former supplier or prospective
supplier of ADE for the purpose of providing or obtaining any product or service
reasonably deemed competitive with any product or service then offered by ADE.
This restriction shall apply only to:
(a) any customer, former customer, prospective customer, supplier,
former supplier or prospective supplier of ADE with whom the Employee had
contact during the last twelve months of his/her employment with ADE, or
(b) any customer, former customer, prospective customer, supplier,
former supplier or prospective supplier of ADE for which the Employee has
obtained Confidential Information or Trade Secrets, as defined by this
Agreement, during the last twelve months of his/her employment with ADE.
9. NON-SOLICITATION OF EMPLOYEES
The Employee agrees that while employed by ADE and for twelve months
after the conclusion of his/her employment he/she will not directly or
indirectly recruit or hire, attempt to recruit or hire, assist any entity or
individual to recruit or hire, or otherwise have any involvement with the
recruiting or hiring of any employee of ADE with whom the Employee had contact
during his/her employment with ADE.
10. REQUESTS FOR WAIVER
In the event that the Employee believes that employment otherwise in
violation of this Agreement would not harm ADE's legitimate business interests,
the Employee may request ADE to waive the restrictions contained in this
Agreement. Any such request shall be made in writing to the President and CEO
and shall identify the business with which the Employee seeks to associate and
describe the duties that the Employee seeks to perform. ADE has the sole
discretion whether to grant such a waiver and no waiver of any restrictions
under this Agreement shall be effective unless in writing and signed by the
President of ADE.
11. ATTORNEY'S FEES
If Employee breaches any of the covenants set forth in this Agreement,
Employee agrees to pay all costs (including reasonable attorney's fees) incurred
by ADE in establishing that breach and in otherwise enforcing any of the
covenants or provisions of this Agreement.
12. WAIVER OF BREACH
ADE's waiver of a breach of any provision of this Agreement by the
Employee does not waive any subsequent breach by the Employee, nor does ADE's
failure to take action against any other employee for similar breaches operate
as a waiver by ADE of a breach.
13. TOLLING
In the event that Employee violates any of the provisions of this
Agreement, the obligations contained in those provisions will run from the date
on which the Employee ceased to be in violation of any such provision.
14. COURT'S RIGHT TO MODIFY RESTRICTIONS
The parties have attempted to limit the Employee's activities only to
the extent necessary to protect ADE from unfair competition. The parties
recognize, however, that reasonable people may differ in-making such a
determination. Consequently, the parties agree that, if the scope or
enforceability of this Agreement is in any way disputed at any time, a court or
other trier of fact may modify and enforce the Agreement to the extent it
believes to be reasonable under the circumstances.
15. SEVERABILITY
If any provision in this Agreement is determined to be in violation of
any law, rule or regulation or otherwise unenforceable, and cannot be modified
to be enforceable, such determination shall not affect the validity of any other
provision of this Agreement, but such other provisions shall remain in full
force and effect. Each provision, paragraph and subparagraph of this Agreement
is severable from every other provision, paragraph and subparagraph and
constitutes a separate and distinct covenant.
16. SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of ADE and
its successors and assigns, and the Employee, his/her heirs, executors and
administrators. ADE shall have the right to assign this Agreement to a successor
to all or substantially all of the business or assets of ADE or any division or
part of ADE with which employee is employed at any time.
17. INJUNCTIVE RELIEF
The Employee understands, acknowledges and agrees that in the event of a
breach or threatened breach of any of the covenants and promises contained in
this Agreement ADE shall suffer irreparable injury for which there is no
adequate remedy at law. ADE will therefore be entitled to injunctive relief from
the courts without bond, enjoining the Employee from engaging in activities in
breach of the Agreement. Such injunctive relief shall be in addition to any and
all other remedies available to the Company, whether at law or in equity.
18. ENTIRE AGREEMENT AND MODIFICATION
This Agreement constitutes the entire agreement and understanding
between ADE and the Employee concerning the subject matters contained herein.
This Agreement supersedes any and all prior understandings and agreements
between the parties concerning these subject matters. This Agreement may not be
modified, terminated, waived altered or amended except in writing, signed by the
Employee and a duly authorized officer of ADE.
19. CHOICE OF LAW AND FORUM
The parties agree that this Agreement shall be construed in accordance
with and governed by the substantive laws of the State of Massachusetts
(regardless of the law that might otherwise govern under applicable
Massachusetts principles of conflict of laws) and further agree that any claims
or causes of action which arise out of this Agreement shall be instituted and
litigated only in a court of competent jurisdiction located within the State of
Massachusetts.
20. INVOLUNTARY TERMINATION WITHOUT CAUSE
If the Employee's employment with ADE is involuntarily terminated by
ADE, and ADE does not have "cause" for such termination, then ADE will continue
to pay the Employee the Employee's base salary for a period of twelve months.
During such period, the Employee shall
remain eligible to participate in ADE's medical and dental plans in accordance
with and to the extent permitted under plan documents at the time of involuntary
termination. Upon completion of such period of benefit continuation the
Employee shall be eligible to elect benefit continuation, under existing
statutory regulations such as COBRA. For purposes of this section, "cause" is
defined as: a) the Employee's continued material failure to perform the
reasonable and customary duties and responsibilities assigned to him/her for a
period of 30 days following written notice from the Company explicitly stating
the performance deficiencies, where the employee does not cure the deficiency
during the 30-day period and at the end of which the Company notifies the
Employee in writing of its conclusion that the deficiencies have not been cured,
together with clearly documented evidence of same; b) conduct that is materially
detrimental to the business, goodwill or reputation of ADE; c) conduct that
constitutes dishonesty, fraud or other malfeasance; d) felonious conduct; e)
immoral and/or reprehensible conduct; f) violation of any provision of this
Agreement; or g) any other action constituting "cause" under the laws of the
State of Massachusetts. ADE is not obligated to make any payments to the
Employee if (i) the Employee resigns from ADE, except as provided for in
paragraph 21 of this Agreement or (ii) the Employee is terminated for cause.
Salary payments and benefits otherwise payable to the Employee under this
section will cease if the Employee breaches any of the terms of this Agreement
21. CONSTRUCTIVE TERMINATION
If the Employee's employment with ADE is "Constructively Terminated,"
then ADE will provide the Employee with the compensation and benefits identified
within paragraph 20. Such compensation and benefits are subject to the
conditions and limitations contained within paragraph 20. For purposes of this
section, "Constructive Termination" is defined as either (i) involuntary
relocation beyond a reasonable commuting distance or (ii) a substantial,
sustained and material reduction in the Employee's compensation, title, status,
authority or responsibility at ADE, without the Employee's consent. For the
purpose of this Agreement "reasonable commuting distance" shall be defined as 1
hour travel from the Employee's primary residence in Lincoln, RI. In order to
claim "Constructive Termination," the Employee must provide written notice to
ADE, thirty days prior to resignation, that identifies the conditions or
situations that the Employee believes caused the "Constructive Termination." ADE
has thirty days from the date
of notice to cure the conditions or situations and prevent the Employee's
"Constructive Termination."
22. EMPLOYMENT AT WILL
THIS AGREEMENT DOES NOT GUARANTEE CONTINUATION OF EMPLOYMENT FOR ANY
PERIOD AFTER THE DATE IT IS EXECUTED; I RESERVE THE RIGHT TO TERMINATE MY
EMPLOYMENT AT ANY TIME FOR ANY OR NO REASON; AND ADE RESERVES THE RIGHT TO
TERMINATE MY EMPLOYMENT AT ANY TIME FOR ANY OR NO REASON.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THIS
AGREEMENT, THAT THEY HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL IF THEY SO
CHOSE, AND THAT THEY ENTER INTO THIS AGREEMENT FREELY AND VOLUNTARILY.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above mentioned.
ADE Corporation Employee
By: /s/ Xxxxxx X. Xxxx /s/ Xxxxx Xxxxx
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Dated: May 1st, 2002
