Exhibit 10.9
EMPLOYMENT AGREEMENT, executed on November 22, 2000 (the "Execution Date"),
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effective as of January 15, 2001 (the "Effective Date"), by and between XXXXX
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MEDICAL CORP., a Delaware corporation (the "Employer"), and XXXXX XXXXX of 22
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Peach Xxxxx Xxxx, Xxxxxxxx Xxx Xxxx 00000 (the "Employee").
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The Employer and Employee hereby agree as follows:
1. Term; Duties. For the period from January 15, 2001 through December
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31, 2002 (or earlier, pursuant to paragraphs 7, 8, 15 or 16) (the "Term"), the
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Employer will employ the Employee, and the Employee will serve the Employer, as
its Chief Technology Officer, reporting to its President and subject at all
times to the direction of its Board of Directors and Executive Committee. The
Employee's office will be at such office of the Employer in Connecticut as the
Employer may designate. The Employee agrees that during the Term he will devote
his entire working time and give his best efforts and attention to the business
of the Employer.
2. Salary. As compensation for his services during the Term, the Employer
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will pay the Employee, in installments on the Employer's regular payroll payment
dates and subject to statutory withholding amounts, a salary:
(a) for the period from January 15, 2001 through December 31, 2001,
at the annual rate of $210,000; and
(b) for 2002, at the annual rate of $210,000 plus an inflationary
adjustment for any increase during 2001 in the Consumer Price Index.
3. Bonus Compensation. As additional compensation for his services during
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the Term, the Employer will pay the Employee such bonus compensation as may
become due to senior executive officers of the Employer under the 2001 Executive
Officers' Bonus Plan of the Employer. The Employee has received a copy of said
Plan.
4. Resettlement Allowance. The Employer will pay the Employee relocation
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reimbursement of up to $40,000 for his reasonable and customary moving
expenses, within 30 days of his relocation of his residence to Connecticut.
5. Vacation; Benefits. The Employee will be entitled to three weeks
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vacation during each calendar year in the Term. The Employee has received a
list of the Employer's current benefit plans and policies regarding severance,
sick leave and the like, available or applicable to the Employer's executives,
including the Employee. The Employee acknowledges that said list does not set
forth all material terms and conditions of these plans and policies, and that
they are subject to modification or
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elimination by the Employer. If a new benefit plan is made available to officers
of the Employer generally, the Employee will be a participant thereunder.
6. Non-Competition. The Employee covenants and agrees that during the
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Term, and thereafter until June 30, 2003, he will not, directly or indirectly,
engage or own any interest in any business competing with or planning to compete
with any business or (if the Employee is aware thereof) planned business of the
Employer, whether as principal, agent, partner, director, officer, stockholder,
investor, lender, consultant, employee, or in any other capacity. The Employee
agrees that a remedy at law for any breach or threatened breach of the foregoing
covenant will be inadequate, and that Employer will be entitled to temporary and
permanent injunctive relief in respect thereof without the necessity of posting
a bond or proving actual damage to Employer.
7. Death. The death of the Employee will terminate the Term.
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8. Incapacity. If during the Term the Employee is unable, on account of
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illness or other incapacity, to perform his duties for a total of more than 45
days during any twelve month period, the Employer has the right to terminate the
Term on ten days' written notice to the Employee, and the Employee will
thereafter be entitled to receive only one-half of his salary installments
otherwise payable until the earlier of the last day of (i) the month-end after
the delivery of said notice, or (ii) the Term (determined without giving effect
to such termination).
9. Employer Information. All information and materials disclosed by the
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Employer to the Employee or acquired at the Employer's expense by the Employee
or acquired or developed by the Employee in connection with his services under
this Agreement, all trade secrets of the Employer and all Work-Product
(hereinafter defined) (herein collectively "Employer Information") shall be and
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remain the sole property of the Employer. The Employee shall protect all
Employer Information which may be in his possession or custody and shall deliver
all such Information (and all copies thereof, in any media) to the Employer at
its request. Notwithstanding the foregoing, Employment Information shall not
include information that the Employee can demonstrate (i) was known to him prior
to the disclosure to him by the Employer, or (ii) was publicly known at the time
of the disclosure or which thereafter became publicly known without fault of the
Employee.
10. Work-Product. All right, title and interest in and to any
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work-product which the Employee acquires, compiles, authors, invents, makes or
otherwise generates, in whole or in part, including all works authored and all
inventions made, for use in connection with or arising out of or in relation to
his services under this Agreement, whether or not copyrightable or patentable
(herein collectively "Work-Product"), shall belong exclusively to the Employer.
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During and after the Term of this Agreement, the Employee shall execute,
acknowledge, and deliver all documents, including, without limitation, all
instruments of assignment, and perform all acts, which the Employer may
reasonably request to secure its rights hereunder.
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11. Confidentiality; Non-use. During and after the Term, the Employee
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shall not, without first obtaining the written consent of the Employer, divulge
or disclose to anyone outside the Employer, whether by private or public
communication or publication or otherwise, or use except pursuant to this
Agreement, any Employer Information; however, an incidental non-derogatory
disclosure by the Employee of Employer Information (other than trade secret or
Work Product information) after 18 months following the end of the Term will not
breach this provision.
12. Conflicts of Interest; Conflicting Obligations. The Employee agrees
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that it is his responsibility to recognize and avoid, and disclose to the
President of the Employer in writing, any situation which might, either directly
or indirectly, adversely affect his judgment in serving the Employer or which
might otherwise involve a conflict between his personal interests and the
interests of the Employer. The Employee represents and warrants to the Employer
that at the date hereof no such situation exists or is contemplated or
anticipated. The Employee agrees not to disclose or use in the course of his
services for the Employer any trade secret, confidential or proprietary
information, or work-product of any party other than the Employer. The Employee
represents and warrants to the Employer that his entry into and performance of
this Agreement do not and will not conflict with any obligation by which he is
or may become bound or any right of a third party to which or he is or may
become subject. The Employee will not serve as a Board member of another company
unless he seeks and obtains the Employer's approval prior to making a commitment
to do so.
13. Non Solicitation. The Employee agrees that, until one year after the
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Term, he will not solicit, induce, attempt to hire, or hire any employee of the
Employer, or assist in such hiring by any other party, or encourage any such
employee to terminate his or her employment with the Employer.
14. Stock Option as an Inducement. As an inducement to the Employee to
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enter into this Agreement, on November 22, 2000 the Compensation Committee of
the Employer's Board of Directors authorized the grant to the Employee on the
Effective Date of a non-qualified stock option pursuant to the Employer's 2000
Incentive Compensation Program to purchase 20,000 shares of the common stock of
the Employer at an exercise price equal to the closing market price of said
stock on the Effective Date; the option to be subject to the Employee's
execution and delivery of this Agreement and his commencement of employment of
employment pursuant thereto on the said Date and it to become exercisable in
four cumulative annual installments commencing on January 15, 2002, and to
expire on January 14, 2006 Although the option will have the tax treatment of a
non-qualified, non-incentive option, it will be subject to the terms and
conditions required for an incentive stock option and to the condition that the
Employee not be in material breach of this Agreement ; also, it will be subject
to acceleration of exercisability of 50% of all otherwise non-exercisable
installments in the event the Employee becomes entitled to a severance payment
under paragraph 15.
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15. Effect of "Change of Control"; Termination; Severance. The Employer
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or Employee may terminate the Term on written notice to the other within 30 days
after a "Change of Control" (as defined in Section 3(b) of the Employer's Change
of Control and Change of Position Payment Plan). The Employee has received a
copy of said Plan. The Employee may also terminate the Term on written notice to
the Employer within 30 days after "Change of Position" (as defined in Section
3(c)(ii) of the Plan)) occurring within twelve months after a Change of Control.
A termination will be effective 30 days after the delivery of the notice. In
the event of a termination by the Employer, the Employee will be entitled to a
severance payment, under Section 4 of the Plan and subject thereto, in the
amount of 100% of the "Base Amount" (as defined in Section 4 of the Plan). In
the event of a termination by the Employee after a Change of Position within
twelve months of a Change of Control, the Employee will be entitled to a
severance payment, under Section 4 of the Plan and subject thereto, in the
amount of 75% of said Base Amount.
16. Termination. The Employer will have the right to terminate the Term
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for cause. However, in the event the Employee's employment is terminated by the
Employer without cause, the Employee will be entitled to receive his salary
payments through the end of the Term, less the compensation earned and
consideration received by the Employee from any subsequent employment or for
otherwise providing services. However, the Employee will not have an
affirmative duty to seek employment not consistent with his experience
(including prior levels of responsibility) and expertise. "Cause" shall include
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material breach of this Agreement not cured within 10 days, breach of fiduciary
duty, gross insubordination, willful neglect of duties, habitual unreliability,
personal conduct in material violation of the Employer's written policies, and
other matters of comparable severity, but it shall not consist of
dissatisfaction with job performance.
17. Governing Law; Etc. This Agreement is governed by the laws of
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Connecticut. It represents the entire agreement of the parties and it can not
be changed except by a writing signed by the President of the Employer and the
Employee. All notices by the Employee to the Employer under this Agreement shall
be delivered to the President of the Employer.
IN WITNESS WHEREOF, the parties have signed and delivered this Employment
Agreement, effective as of the Effective Date.
XXXXX MEDICAL CORP.
/s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
XXXXX XXXXX Xxxxx X. Xxxxxx, President
President
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