Exhibit 10.12
iROBOT CORPORATION
EMPLOYMENT AGREEMENT -- XXXXXXXX CLEAR
THIS IS AN AGREEMENT, dated as of March 28, 2003 (the "Commencement Date") by
and between iRobot Corporation, a Delaware corporation (the "Company" or
"iRobot"), and Xxxxxxxx X. Clear (the "Employee").
RECITALS:
WHEREAS, the Company desires to continue to employ the Employee and the
Employee desires to be employed by the Company;
WHEREAS, the Company and the Employee desire to more formally
memorialize the terms of employment detailed in an April 30, 2002 Offer Letter
the ("Offer Letter");
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which consideration are hereby acknowledged, the parties agree as
follows:
1. Employment
Effective immediately, the Company shall continue to employ the Employee, and
the Employee shall agree to continued employment by the Company, upon the terms
and conditions hereinafter set forth.
2. Duties
The Employee shall serve as Chief Financial Officer of the Company. In such
capacity, the Employee will report to the President and the Chief Executive
Officer of the Company and will perform such duties on behalf of the Company
consistent with such office. The Employee agrees to abide by the reasonable
rules, regulations, instructions, personnel practices and policies of the
Company and any changes therein which may be adopted from time to time by the
Board of Directors of the Company, provided they are not inconsistent with the
provisions of this Agreement.
3. Term
The Employee's employment shall commence upon the Commencement Date and shall
continue, unless sooner terminated as provided below, until December 31, 2005
(the "Employment Term").
4. Extent of Services
During the term of his employment, the Employee will devote full time at a
minimum of 160 hours per month, and his best efforts to the performance of his
duties under this Agreement.
Under no circumstances will the Employee knowingly take any action contrary to
the best interests of the Company.
5. Compensation
In consideration of the services rendered by the Employee under this
Agreement, the Company will pay the Employee compensation as follows:
5.1 Base Salary. A base salary ("Base Salary") of $231,000 per
year for the Employment Term, payable in accordance with the Company's ordinary
payroll practices, and prorated for any partial year.
5.2 Bonus. The Employee will be eligible to receive a fifteen
(15%) to forty (40%) percent bonus, calculated on the Base Salary, each calendar
year during the Employment Term in accordance with the achievement of certain
revenue and profitability criteria to be mutually agreed through good faith
negotiations between Company and Employee. The award and amount of any bonus are
at the discretion of the CEO and President, and subject to approval by the
Compensation Committee of the Board of Directors.
6. Other Benefits
6.1 Additional Compensation and Benefits. The Employee shall
be entitled to three weeks of vacation in each fiscal year and health insurance
consistent with the health insurance provided by the Company to other
similarly-situated employees of the Company from time to time, where
participation in benefit plans is subject to the terms and conditions of those
plans and applicable company policy. As of April 1, 2003, the Employee shall be
entitled to accrue at a rate of four weeks of vacation each fiscal year. The
Employee will be entitled to such additional compensation, bonuses or benefits
as the Company's Board of Directors, in its sole discretion, may decide from
time to time.
6.2 Expense. The Company will, upon substantiation thereof,
reimburse the Employee for all reasonable expenses required in the ordinary
course of business and incurred by the Employee in connection with the Company's
business affairs. The Employee must regularly submit, to the Treasurer or
President of the Company, a statement of these expenses and will comply with
such other accounting and reporting requirements as the Company may from time to
time establish.
6.3 Severance Period. If (i) the Company terminates the
employment of the Employee for reasons other than cause (as defined in Section
7.3), expiration of the Employment Term or the Employee's death or disability,
or (ii) the Employee terminates his employment pursuant to Section 7.2(b), then
for purposes of this Agreement, the "Severance Period" is the period of time
beginning on the effective date of termination and ending at the later of the
following times:
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(a) 6 months thereafter
(b) The expiration of the non-compete clause of this
Agreement.
6.4 Severance Pay. The Employee is entitled to continuing pay
at a level equal to his annual Base Salary in effect immediately prior to the
Severance Period prorated for duration of the Severance Period ("Severance
Pay"). Employee shall receive Severance Pay during the Severance Period in
addition to any compensation due under Section 5 for services through
termination and reimbursement, pursuant to Section 6.2, of all expenses incurred
on or prior to termination. There is no obligation to pay a bonus as defined in
Section 5.2, above, during the severance period. All payments under this Section
6.4 are subject to federal, state and local payroll or tax withholding.
7. Termination
7.1 By the Company. The Company may terminate the Employee's
employment with the Company (a) upon the expiration of the Employment Term in
accordance with the terms of this Agreement, provided at least six (6) month
notice of intention to terminate is provided by the Company to the Employee, (b)
at any time without notice for "cause", as defined in subsections (a) or (c) of
Section 7.3, (c) at any time upon thirty (30) days' notice for "cause", as
defined in subsections (b), (c) or (e) of Section 7.3, (d) at any time upon 60
days' advance notice (provided Severance Pay is paid to Employee), (e) if the
Employee is incapacitated or disabled by accident, sickness or otherwise so as
to render the Employee mentally or physically incapable of performing the
services required to be performed under this Agreement with or without
reasonable accommodation for a period of ninety (90) consecutive days or longer
or for any ninety (90) days in any period of one hundred eighty (180)
consecutive days or (f) upon the death of the Employee.
7.2 By the Employee. (a) The Employee may terminate his
employment with the Company at any time upon 60 days' advance notice, (b) The
Employee may terminate his employment with the Company if the Company materially
breaches any of the terms or conditions contained herein. Any termination by the
Employee under this subsection (b) shall be made by giving thirty (30) days'
advance written notice of such termination, with reasonable specificity of the
details thereof, and shall be deemed to be information subject to the
confidentiality provisions of Section 8.2. Such notice of termination must be
given within thirty (30) days of the alleged material breach precipitating the
notice of termination, or, if the breach is not immediately known to the
Employee, within thirty (30) days of the date the Employee learns of the alleged
breach. A termination pursuant to this Section 7.2(b) shall take effect thirty
(30) days after the giving of the notice contemplated hereby unless the Company
shall, during such thirty (30) day period, remedy the alleged breach. The
Employee acknowledges and agrees that any attempted remedy hereunder by the
Company shall not be considered to be an admission of any violation or breach of
this Agreement by the Company.
7.3 Cause. For the purposes of Section 7.1 and Section 6.3,
"cause" means:
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(a) participation in a fraud or act of dishonesty
against the Company, including a breach of the duty of loyalty, which adversely
affects the Company in a material way, or
(b) failure or refusal to perform specific directives
of the Company's Board of Directors consistent with the Employee's duties,
unless the Employee remedies such failure or refusal (if such failure or refusal
is susceptible to remedy) within thirty (30) days following notice by the
Company of its intent to terminate the Employee's employment pursuant to this
Section, or
(c) conviction of a felony or any crime involving
moral turpitude or dishonesty, or
(d) material failure to adhere to written Company policies, unless the Employee
remedies such failure (if such failure is susceptible to remedy) within thirty
(30) days following notice by the Company of its intent to terminate the
Employee's employment pursuant to this Section, or
(e) a material breach of this Agreement or the
Employee's Invention and Confidentiality Agreement executed on or about February
6, 2003
7.4 Amounts Payable Upon Termination. Upon termination of the
Employee's employment with the Company in accordance with Section 7.1, all
monies owed the Employee, other than Severance Pay obligations, if any, will
become immediately payable, and all compensation and benefits under this
Agreement with the exception of Severance Pay will cease, effective the date of
termination.
8. Additional Terms
8.1 Non Competition. During the term of this Agreement and for
a period of one (1) year after the termination of this Agreement for Section
8.1(a) and two (2) years after the termination of this Agreement for Sections 8.
l(b) and 8.1(c), the Employee shall not, without the Company's prior written
consent, which shall not be unreasonably withheld, directly or indirectly:
(a) as an individual proprietor, partner, stockholder,
officer, employee, consultant, director, joint venturer, investor,
lender, or in any other capacity whatsoever (other than as a holder of
not more than 5% of the total outstanding stock of a publicly held
company), engage in the business of developing, producing, marketing or
selling products or services in the same specific categories similar to
products or services that (i) were developed, produced, marketed or
sold by the Company during the Employee's employment with the Company,
or (ii) were discussed within the previous three years but not
dismissed by the Company's Board of Directors during the Employee's
employment;
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(b) recruit, solicit or induce, or attempt to induce, any
employee, consultant or agent of the Company to terminate their
employment with, or otherwise cease their relationship with, the
Company after or just prior to the Employee's departure; or
(c) divert or take away, or attempt to divert or take away,
the business or patronage of any of the clients, customers or accounts,
or prospective clients, customers or accounts, of the Company which
were contacted, solicited or served by the Employee during the term of
this Agreement.
8.2 Confidentiality and Nondisclosure. In consideration and as
a condition of the Employee's employment, or continuing employment, by iRobot
and/or by companies which it owns, controls, or is affiliated with, or their
successors in business (for purposes of this Section 8.2 only, the "Company"),
and the compensation paid therefor, the Employee agrees:
(a) (i) To keep confidential, except as the Company
may otherwise consent in writing, and not to disclose, or make any use of except
for the benefit of the Company, at any time either during or subsequent to the
Employee's employment, any trade secrets, confidential information, knowledge,
data, or other information of the Company relating to products, processes,
know-how, designs, customer lists, business plans, marketing plans and
strategies, and pricing strategies or any subject matter pertaining to any
business of the Company or any of its clients, licensees or affiliates, which
the Employee may produce, obtain or otherwise acquire during the course of his
employment, except as herein provided and (ii) not to deliver, reproduce or in
any way allow any such trade secrets, confidential information, knowledge, data
or other information, or any documentation relating thereto, to be delivered or
used by any third parties without specific direction or consent of a duly
authorized representative of the Company.
(b) In the event of the Employee's termination of
employment with the Company for any reason whatsoever, (i) to surrender and
deliver to the Company promptly all records, materials, equipment, drawings and
data of any nature pertaining to any invention or confidential information of
the Company or to the Employee's employment, and the Employee will not take with
him any description containing or pertaining to any confidential information,
knowledge or data of the Company which the Employee may produce or obtain during
the course of his employment and (ii) to sign and deliver a "Termination
Certificate" in the form to be provided by the Company.
8.3 Remedies. The Employee acknowledges that any breach of the
provisions of this Section 8 shall result in serious and irreparable injury to
the Company for which the Company cannot be adequately compensated by monetary
damages alone. The Employee agrees, therefore, that, in addition to any other
remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Employee and to seek both temporary and
permanent injunctive relief (to the extent permitted by law) without the
necessity of proving actual damages.
9. Assignment of Inventions.
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9.1 Disclosure. The Employee will promptly and fully disclose
to the Company any and all computer programs and documentation, inventions,
discoveries, developments, designs, data, know-how, concepts and ideas, whether
or not patentable, that are authored, conceived, developed, reduced to practice
or prepared by the Employee alone or by the Employee and others, during the
period of the Employee's employment with the Company, relating either to any
computer programs and other products and services developed and/or licensed,
sold, leased or otherwise distributed or put into use by the Company, during the
term of the Employee's employment, or to any prospective activities of the
Company known to the Employee as a consequence of employment with the Company
(the "Inventions").
9.2 Further Assurances. Upon and/or following disclosure of
each Invention to the Company, the Employee will, during the Employee's
employment and at any time thereafter, at the request and cost of the Company,
sign, execute, make and do all such deeds, documents, acts and things as the
Company and its duly authorized agents may reasonably require to apply for,
obtain and vest in the name of the Company alone (unless the Company otherwise
directs) letters patent, copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to renew and restore the
same; and defend any opposition proceedings in respect of such applications and
any opposition proceedings or petitions or applications for revocation of such
letters patent, copyright or other analogous protection.
9.3 Works Made For Hire. The Employee acknowledges that all
computer programs, documentation, works of authorship and copyrightable works
prepared in whole or in part by the Employee in the course of the Employee's
employment, including without limitation all Inventions, will be "works made for
hire" under the Copyright Act of 1976 (the "Copyright Act"), and will be the
sole property of the Company and the Company will be the sole author of such
works within the meaning of the Copyright Act. All such works, as well as all
copies of such works in whatever medium, will be owned exclusively by the
Company and the Employee hereby expressly disclaims any and all interests in
such works. If the copyright to any such work would not be the property of the
Company by operation of law, the Employee hereby and without further
consideration, irrevocably assigns to the Company all right, title and interest
in such work, including all so-called "moral rights," and will assist the
Company and its nominees in every proper way, at the Company's expense, to
secure, maintain and defend for the Company's own benefit copyrights and any
extensions and renewals thereof on such work, including translations thereof in
any and all countries, such work to be and to remain the property of the Company
whether copyrighted or not. If the foregoing moral rights cannot be so assigned
under the applicable laws of the countries in which such rights exist, the
Employee hereby waives such moral rights and consents to any action of the
Company that would violate such rights in the absence of such consent.
9.4 Assignment; Power of Attorney. Without in any way limiting
the foregoing, the Employee hereby assigns to the Company all right, title and
interest to all Inventions, including but not limited to patent rights. In the
event the Company is unable, after reasonable effort, to secure the Employee's
signature on any letters patent, copyright or other analogous
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protection relating to an Invention, whether because of the Employee's physical
or mental incapacity or for any other reason whatsoever, the Employee hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as his agent and attorney-in-fact, to act for and in his behalf and
stead to execute and file any such application or applications and to do all
other lawfully permitted acts to further the prosecution thereon with the same
legal force and effect as if executed by the Employee.
10. Notices
All notices under this Agreement must be in writing and must be
delivered by hand or mailed by certified or registered mail, postage prepaid,
return receipt requested, to the parties as follows:
IF TO THE COMPANY: iRobot Corporation
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
IF TO THE EMPLOYEE: To the address set forth below the signature of the
Employee;
or to such other address as is specified in a notice complying with this Section
10. Any such notice is deemed given on the date delivered by hand or three days
after the date of mailing.
11. Miscellaneous
11.1 Modification. This Agreement constitutes the entire
Agreement between the parties with regard to the subject matter hereof,
superseding all prior understandings and agreements, whether written or oral,
including without limitation the Offer Letter. Notwithstanding the foregoing,
nothing in this Agreement shall modify the Invention & Confidentiality Agreement
executed by the Employee and Company on or about February 6, 2003. This
Agreement may not be amended or revised except by a writing signed by the
parties.
11.2 Successors and Assigns. This Agreement is binding upon
and inures 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 its assets or business, although the obligations
of the Employee are personal and may be performed only by him.
11.3 Captions. Captions have been inserted in this Agreement
solely for convenience of reference, and in no way define, limit or affect the
scope or substance of any provision of this Agreement.
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11.4 Severability. The provisions of this Agreement are
severable, and invalidity of any provision does not affect the validity of any
other provision. In the event that any court of competent jurisdiction
determines that any provision of this Agreement or the application thereof is
enforceable because of its duration or scope, the parties agree that the court
in making such determination will have the power to reduce the duration and
scope of such provision to the extent necessary to make it enforceable, and that
the Agreement in its reduced form is valid and enforceable to the full extent
permitted by law.
11.5 Governing Law. This Agreement is to be construed under
and governed by the laws of the Commonwealth of Massachusetts, excluding its
conflict of laws provisions. Any and all actions under this Agreement shall be
brought by the parties in the courts of the Commonwealth of Massachusetts, which
is the exclusive jurisdiction and venue for this Agreement.
11.6 Survival. The provisions of Sections 6.3, 6.4, 7, 8, 9,
10 and 11 shall survive the Employee's employment and the termination of this
Agreement.
11.7 Arbitration. Except for the right to obtain provisional
remedies or interim relief, which right is preserved without any waiver of the
right to arbitration, any dispute under this Agreement shall be settled by
arbitration under the rules of the American Arbitration Association, in Boston,
Massachusetts. The arbitration shall be kept confidential to the maximum extent
practical. Such arbitration shall be final and binding on the parties. In the
event of any dispute between the parties arising out of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorney's fees and
costs incurred in the action, as determined by a court of competent jurisdiction
or an arbitration court having competence under this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date and year first above written.
iROBOT CORPORATION
By: /s/ XXXXX XXXXXXX
---------------------------------------
Xxxxx Xxxxxxx, President
EMPLOYEE
/s/ XXXXXXXX X. CLEAR
---------------------------------------
Xxxxxxxx X. Clear
Address:
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xxx.xxxxxx.xxx
iROBOT
May 2, 2003
Xx. Xxxxxxxx X. Clear
iRobot Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Re: First Modification to March 28, 2003 Employment Agreement
Dear Geoff:
Pursuant to Section 11.1 of your March 28, 2003 Employment Agreement,
you hereby agree to replace Section 5.2 in its entirety with the following:
5.2 Bonus. The Employee will be eligible to receive up to a
forty (40%) percent bonus, calculated on the Base Salary, each
calendar year during the Employment Term in accordance with
the achievement of certain revenue and profitability criteria
to be mutually agreed through good faith negotiations between
Company and Employee. The award and amount of any bonus are at
the discretion of the CEO and President, and subject to
approval by the Compensation Committee of the Board of
Directors.
Sincerely,
/s/ XXXX XXXXXXXXX
-------------------
Xxxx Xxxxxxxxx
Agreed:
/s/ XXXXXXXX X. CLEAR
---------------------
Xxxxxxxx X. Clear
May 2, 2003
tel (000) 000-0000
fax (000) 000-0000
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
