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EXHIBIT 10.1
June 18, 1999
Xx. Xxxxxxx X. Xxxxx
00 Xxxxxxxxx Xxx
Xxxx Xxxxxxxxx, XX 00000
Dear Xxxxx:
Sipex Corporation is very pleased to extend an offer of employment to you
on the terms and conditions set forth in this letter.
As a condition of your employment, you will be required to execute an
Employee Noncompetition, Nondisclosure and Developments Agreement in the form
attached to this letter, as well as an Employment Agreement in the form attached
to this letter. A signed copy of this letter will also be attached to and made
part of your Employment Agreement.
The following is a summary of the terms and conditions upon which you will
be employed by the Company:
1. TITLE AND RESPONSIBILITIES: Your starting position and title will be
President and Chief Operating Officer. You will report directly to me, along
with Xxxx Xxxxxxx, Vice President of Sales, Xxxxx Xxxx, Vice President of
Quality Assurance, and Xxxxx XxXxxxxx, Executive Vice President and CFO.
Initially, Operations (Yener Gurler), Product Development (Xxxxxxx Xxxx) and
Marketing (Xxxx Xxxxxxxx) will report directly to you. I will retain the title
of Chairman and CEO.
2. STARTING SALARY AND BONUS: Your starting salary will be $250,000 per
year. If you are still employed by the Company as of March 1, 2000, you will
receive a guaranteed bonus of $175,000 reflecting your service in 1999.
3. PROMOTION: Both you and Sipex would contemplate that you would, if
successful, transition to the position of CEO in addition to your position as
President within a reasonable period of the commencement of your employment with
the Company. If this occurs, Sales and Quality Assurance would then report to
you, I would remain Chairman, and you and Xxxxx XxXxxxxx would report directly
to me. You recognize that this promotion is not guaranteed, but will be based on
the Board of Directors' assessment of your fitness and readiness to assume the
title of CEO. The Company will agree to inform you no later than March 1, 2000
whether the Board intends to appoint you CEO. In the event that Board informs
you on or before March 1, 2000 that you will not be appointed CEO, you will be
free within thirty days of such notice to terminate your employment, and such
termination will be considered to be with Good Reason (as defined in Section 3
(B) (2) of the Employment Agreement). You would then be entitled to receive the
benefits set forth in Section 3 (B) (3) of the
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Employment Agreement, provided you signed the necessary comprehensive release.
In the event you are promoted to CEO, the Board may, at its discretion, increase
your base salary.
4. STOCK OPTIONS: At the commencement of your employment, you shall be
granted options to purchase 150,000 shares of Sipex stock at the fair market
value of the stock on the date of grant, vesting over a 5-year period, all in
accordance with the terms of the Company's Stock Option Plan. In the event the
Board promotes you to CEO, you shall on the first anniversary of your date of
employment be granted an option (vesting over 5 years, all in accordance with
the terms of the Company's Stock Option Plan) to purchase an additional 175,000
shares of Sipex stock at the fair market value of the stock on the date of
grant, and you shall, if you are still employed on the second anniversary of
your date of employment, be granted an option (vesting over 5 years, all in
accordance with the terms of the Company's Stock Option Plan) to purchase an
additional 175,000 shares of Sipex stock at the fair market value of the stock
on the date of grant. If the Company fails to obtain agreement by any Successor
To The Business as defined in Section 10 of the Employment Agreement to perform
your Employment Agreement (all as set forth in Section 10 of the Employment
Agreement), all stock options you then hold will vest to 100% on the effective
date of any such transaction described in said section 10.
5. HOUSING AND RELOCATION: The Company will grant you a loan in the
amount of $250,000 to offset the cost of obtaining new housing in Massachusetts.
The loan will be contingent on the purchase of your new home in Massachusetts
and it shall be secured by a mortgage on the home you purchase. The loan will be
forgivable over a period of 3 years, at 33 1/3% on the three anniversary dates
following issuance of the loan, provided that if you leave the Company without
Good Reason, or because you are terminated by the Company for Cause, all as
defined in section 3 of the Employment Agreement, the portion of the loan not
yet forgiven must be repaid to the Company within thirty days of the termination
of your employment. If you terminate your employment with Good Reason, or if the
Company terminates your employment without Cause, all as defined in section 3 of
the Employment Agreement, the remaining unforgiven portion of the loan shall be
forgiven.
In addition, the Company shall pay reasonable and customary relocation
expenses, including moving costs, closing costs, and real estate commissions
that you incur in selling your home in East Greenwich, Rhode Island and moving
to Massachusetts. If you are not able to sell your current home in Rhode Island
prior to moving into a new home in Massachusetts, the Company shall assume the
interest portion of your present mortgage payment until the earlier of one year
or the date you sell your home in Rhode Island. The Company will pay for
reasonable temporary housing expenses for you if you personally relocate to
Massachusetts prior to the sale of your home in Rhode Island, and it will pay
for reasonable temporary housing expenses for your family if your family
relocates to Massachusetts prior to the sale of your home in Rhode Island.
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6. BENEFITS: You shall be eligible for life insurance and medical
insurance under the plan applicable to Sipex executives. You will be entitled to
a corporate lease allowance of up to $1,000 per month for a vehicle, and the
Company will cover the cost of maintenance and business-related gasoline
expenses. You will be entitled to the customary vacation, retirement and other
benefits applicable to Sipex executives. You will be covered by the Company's
Directors & Officers Liability insurance policy.
7. SEVERANCE BENEFIT: In the event you are terminated by the Company
without Cause, or if you terminate your employment with Good Reason, all as
defined in Section 3 of the Employment Agreement, as further modified by
paragraph 3 of this letter, and if you sign a comprehensive release, you shall
be entitled to the severance benefits set forth in section 3 (B) (3) of the
Employment Agreement.
Finally, I want to re-emphasize that our industry is a volatile one, and
you should realize that it is possible that Sipex may be acquired or merged or
otherwise experience a change in control, which may affect your employment
status. Your sole and exclusive rights in the event of a change of control are
set forth in paragraph 4 of this letter and in Section 10 of the Employment
Agreement you will be required to sign.
If the foregoing is acceptable in all respects to you, kindly countersign a
copy of this letter and return it to me. We look forward to our association with
you.
Sincerely yours,
/s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx, Chairman and CEO
Agreed to:
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
Date: June 18, 1999
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EMPLOYMENT AGREEMENT
AGREEMENT made as of this day of August 9, 1999, by and between Xxxxxxx
X. Xxxxx, a person residing at 00 Xxxxxxxxx Xxx, Xxxx Xxxxxxxxx, R.I. 02818 (the
"Employee") and Sipex Corporation, a Massachusetts corporation with a principal
place of business in Billerica, Massachusetts (the "Company").
WHEREAS, the Employee's senior managerial position requires that he be
trusted with extensive confidential information and trade secrets of the Company
and that he develop a thorough and comprehensive knowledge of all details of the
Company's business, including, but not limited to, information relating to
research, development, inventions, manufacturing, purchasing, accounting,
engineering, marketing, distribution and licensing of the Company's products and
services;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES. The Employee agrees to serve as
President and Chief Operating Officer of the Company or in such other positions
as may be assigned. He shall have direct responsibility for the Operations,
Product Development and Marketing divisions of the Company. The Employee shall
at all times report to, and his activities shall at all times be subject to the
direction and control of the Chairman and Chief Executive Officer and the Board
of Directors of the Company or to its designee, and the Employee shall exercise
such powers and comply with and perform, faithfully and to the best of his
ability, such directions and duties in relation to the business and affairs of
the Company as may from time to time be vested in or requested of him. If
Employee shall be elected to other offices of the Company or any of its
affiliates, he shall serve in such positions without further compensation than
provided for in this Agreement. The Employee agrees to follow all rules,
policies and directives of the Company as may be promulgated or modified from
time to time. The Employee shall perform his services under this Agreement at
such locations as may be required by the Company.
2. COMPENSATION; SALARY, BONUSES AND OTHER BENEFITS. During the
term of this Agreement, the Company shall pay the Employee the following
compensation:
(A) SALARY. In consideration of the services to be
rendered by the Employee to the Company, the Company will pay to the
Employee a monthly salary of $20,800 (the Employee's "Base Rate")
during the term of this Agreement. Employee's Base Rate may be adjusted
by the Company's Board of Directors in its sole discretion from time to
time; provided, however, that under no circumstance shall such Base
Rate be reduced. Such salary shall be payable in conformity with the
Company's customary practices for executive compensation, as such
practices shall be established or modified from time to time.
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(B) FRINGE BENEFITS.
(1) The Employee will be entitled to participate
on the same general basis and subject to the same rules and
regulations as other Company executive employees in the
Company's standard benefit plans as such benefits or plans may
be modified or amended from time to time.
(2) The Company will maintain supplemental life
insurance on the life of the Employee so that the aggregate
total death benefit payable to the Employee from all Company
life insurance policies will total _____________.
(3) At the request of the Employee, the Company
will maintain supplemental disability insurance for the
Employee so that the aggregate total disability benefits
payable to the Employee from all Company disability insurance
policies will total sixty-six and two-thirds percent (66 2/3%)
of Employee's salary.
(4) The Company shall pay or reimburse the
Employee for all reasonable business expenses incurred or paid
by the Employee in the performance of his duties and
responsibilities hereunder, provided the Employee provides
reasonable substantiation and documentation of these expenses.
The Company agrees to provide reimbursement within a
reasonable time after receipt of such documentation.
(C) PERFORMANCE BASED BONUS. At the sole discretion of
the Board of Directors, the Employee may also be eligible to receive a
discretionary annual bonus after the end of the Company's calendar
year, provided that the Employee continues to be employed by the
Company at such year end. The amount of this bonus, if any, shall be
determined by the Board of Directors based on objective or subjective
goals set by the Board of Directors in its sole discretion. In the
event that the Employee's employment with the Company is terminated by
the Company without Cause or is terminated by the Employee for Good
Reason other than at calendar year end, the Employee's bonus shall be
prorated for such partial year. No bonus shall be payable to Employee
with respect to any calendar year of the Company during which
Employee's employment is terminated for Cause or Employee terminates
his employment without Good Reason. In the event employee is employed
on March 1, 2000 and has not been terminated for Cause or he has not
terminated his employment without Good Reason, he shall be entitled
Letter, to a bonus of $175,000 reflecting his services in 1999.
(D) TAXES. All payments in this Section 2 shall be
subject to all applicable federal, state and local withholding, payroll
and other taxes.
3. TERMINATION. The Employee's employment under this Agreement
may be terminated as follows:
(A) BY THE EMPLOYEE WITHOUT GOOD REASON. The Employee may
terminate, his
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employment without Good Reason (as defined in Section 3(B)(2) below)
provided that the Employee gives the Company a written notice of intent
to terminate at least thirty (30) days' prior to the effective date of
such termination. In the event of a termination by the Employee without
Good Reason, the Company may accelerate the Employee's departure date
and will have no obligation to pay Employee after his actual departure
date. In the event of termination by the Employee without Good Reason,
the Employee shall be entitled to no severance or other termination
benefits.
(B) BY THE EMPLOYEE WITH GOOD REASON OR BY THE COMPANY
WITHOUT CAUSE.
(1) The Company may terminate the Employee's
employment without Cause (as defined in Section 3(C))
at any time. The Employee may terminate his
employment for Good Reason (as defined in Subsection
(2) of this Section 3(B) and as further defined in
paragraph 3 of the offer letter dated June , 1999,
attached hereto) after giving the Company a written
notice of intent to terminate at least thirty (30)
days prior to the effective date of such termination.
(2) For purposes of this Agreement, termination
by the Employee for "GOOD REASON" shall mean the
termination of employment by the Employee: (i) as a
result of a material breach of this Agreement by the
Company; (ii) as a result of a material reduction in
the Employee's title or reporting responsibilities as
they exist on the date hereof without the Employee's
written consent; (iii) as a result of the failure of
the Company to pay the Employee's salary or bonus, if
any, in the time and manner contemplated by this
Agreement; (iv) as a result of the Company requiring
the Employee to relocate more than 50 miles from
Billerica, Massachusetts (unless such relocation is
to another facility of the Company); or (v) for a
reason set forth in paragraph 3 of the offer letter
to Employee dated June , 1999; PROVIDED, HOWEVER,
that an event described in this Section shall not
constitute Good Reason unless it is communicated by
the Employee to the Company in writing and is not
corrected by the Company to the Employee's
reasonable satisfaction within 30 days of the date
of the Employee's delivery of such written notice to
the Company. Notwithstanding Section 3(B)(2)(iv), in
the event a Successor To The Business (as defined in
Section 10 hereof) assumes this Agreement, Section
3(B)(2)(iv) shall be modified to read as follows:
"(iv) as a result of the Company requiring the
Employee to relocate more than 50 miles from
Billerica, Massachusetts to any other location
(including without limitation any facility of the
Company or the Successor To The Business)."
(3) In the event that the Company exercises its
right to terminate the Employee without Cause or the
Employee terminates his employment for Good Reason
and the Employee signs a comprehensive release in the
form, and of a scope, acceptable to the Company, the
Company agrees to:
(i) pay the Employee a lump sum payment
equal to eighteen (18)
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months' base salary at the Employee's then
current Base Rate;
(ii) pay the Employee an amount equal to
the highest annual bonus paid or payable by
the Company to the Employee with respect to
any calendar year during the three (3)
calendar years prior to Employee's
termination of employment;
(iii) allow the Employee to participate
to the same extent as active executive
employees (including dependent coverage) in
the life, accident, disability, health and
dental insurance plans of the Company
(including the supplemental insurance set
forth in Section 2(B)(2) and 2(B)(3) of this
Agreement) or to provide benefits equivalent
to those of active executive employees, at
no cost to the Employee for a period of
eighteen (18) months commencing on the date
of termination of employment;
(iv) allow the Employee the option to
buy the Company automobile leased for the
Employee for a price equal to the buyout
amount of the automobile at the end of the
lease. The Employee hereby authorizes the
Company to deduct any tax withholdings
applicable to such transfer from any
payments to be made by the Company
hereinafter. All risk of damage or loss with
respect to such automobile shall rest with
the Employee. The automobile will be
transferred to the Employee "as is," with no
representations or warranties, express or
implied, being made to the Employee
(including warranties of merchantability and
fitness for a particular purpose) and,
without limiting the generality of the
foregoing in any way, in no event shall the
Company be liable for any consequential,
special, punitive or other damages in
connection with the automobile transfer. If
this option is not exercised, the automobile
will be returned to the Company;
(v) In the event that any of the
payments to be made to the Employee, or the
compensation received or deemed to be
received by the Employee, pursuant to or nay
reason of the provisions of Section 3(B)(3)
of this Agreement result in the imposition
of an excise tax on the Employee pursuant to
Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), or any
similar provision of state, local or foreign
tax law (the "Parachute Tax"), the Company
shall pay an additional amount to the
Employee (the "Gross-Up Payment"). The
Gross-Up Payment shall be calculated by the
Company and shall equal an amount necessary
to yield the Employee, on an after-tax
basis, an amount equal to the Parachute Tax
imposed on the Employee (including any
Parachute Tax imposed with respect to the
Gross-Up Payment). The Gross-Up Payment with
respect to any Parachute Tax shall be
payable by the Company to the Employee no
later than the last day of the fiscal year
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in which such Parachute Tax is imposed.
(iv) The payments in this Section
3(B)(3) shall be subject to all applicable
federal, state and local withholding,
payroll and other taxes.
If Employee breaches his obligations under
the Noncompetition, Nondisclosure and
Developments Agreement executed herewith
between Employee and the Company, the
Company may immediately cease payment of all
severance and/or benefits described in this
Agreement. This cessation of severance
and/or benefits shall be in addition to, and
not, as an alternative to, any other
remedies in law or in equity available to
the Company, including the right to seek
specific performance or an injunction.
Except as expressly set forth in this
Section 3(B), Employee acknowledges that the
Company shall not have any other obligations
to the Employee in the event of Employee's
termination under this Section 3(B), except
such other obligations as may be imposed by
law.
(C) AT THE ELECTION OF THE COMPANY FOR CAUSE. The Company
may, immediately and unilaterally, terminate the Employee's employment
hereunder for "Cause" at any time during the term of this Agreement by
giving to the Employee written notice of such termination ten (10) days
prior to the effective date of termination. The Company may pay
Employee for this ten (10) day period in lieu of such notice.
Termination of the Employee's employment by the Company shall
constitute a termination for "Cause" if such termination is for one or
more of the following causes:
(1) the substantial and continuing failure of
the Employee to render services to the Company
substantially in accordance with his assigned duties
or obligations under this Agreement, which materially
and adversely affects or could materially and
adversely affect the business, prospects, financial
condition, operations, property or affairs of the
Company, which is not cured by the Employee to the
satisfaction of the Company within thirty (30) days
notice to the Employee by the Company of the failure;
(2) dishonesty, deliberate disregard of the
rules or policies of the Company, material breach of
the terms of this Agreement, which is not cured by
the Employee to the satisfaction of the Company
within thirty (30) days notice to the Employee by the
Company;
(3) the commission by the Employee of an act of
fraud, embezzlement or breach of fiduciary duty;
(4) acts of moral turpitude by the Employee
which materially adversely affect the Employee's
ability to perform his duties hereunder and represent
the
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Company;
(5) the conviction by the Employee of a felony;
or
(6) the commission of an act which constitutes
unfair competition with the Company or which induces
any customer of the Company to breach a contract with
the Company.
In the event of a termination for "Cause" pursuant to
the provisions of clauses (1) through (6) above,
inclusive, the Employee shall be entitled to no
severance or other termination benefits.
(D) BENEFITS IF AGREEMENT TERMINATED DUE TO DEATH OR
DISABILITY. The Company shall have the right to terminate Employee's
employment if Employee dies or suffers physical incapacity or mental
incompetence. In the event Employee's employment shall terminate due to
the physical incapacity or mental incompetence of the Employee, the
Company shall pay the Employee an amount equal to: (i) eighteen (18)
months salary at the then current Base Rate, less (ii) any amounts
recovered by the Employee under any health and disability insurance
programs available through the Company. For the purposes of this
Agreement, the Employee shall be deemed to have suffered physical
incapacity or mental incompetence if the Employee is unable to perform
the essential functions of his job with reasonable accommodation. Any
accommodation will not be deemed reasonable if it imposes an undue
hardship on the Company. If this Agreement terminates due to the death
of Employee, Employee will not be entitled to any payments after the
date of his death.
4. SURVIVAL OF CERTAIN PROVISIONS. Provisions of this Agreement
shall survive any termination of employment or of this Agreement if so provided
herein or if necessary or desirable to fully accomplish the purposes of such
provision. Without limiting the foregoing, the obligations of the Employee under
Sections 3, 4, 5, 8 and 10 hereof and the Employee Noncompetition, Nondisclosure
and Developments Agreement of even date herewith by and between Employee and the
Company expressly survive any termination of employment or termination of this
Agreement. The obligation of the Company to make payments to or on behalf of the
Employee under Section 3(B) hereof is expressly conditioned upon Employee's
continued full performance of the obligations under the terms of Section 5 and
the Noncompetition, Nondisclosure and Developments Agreement executed herewith
between Employee and the Company.
5. NONCOMPETITION, NONDISCLOSURE AND DEVELOPMENTS AGREEMENT. In
connection with his employment by the Company pursuant to the terms of this
Agreement, the Employee shall execute, prior to the execution hereof by the
Company, the Noncompetition, Nondisclosure and Developments Agreement attached
hereto as EXHIBIT A.
6. CONSENT AND WAIVER BY THIRD PARTIES. The Employee hereby
represents and
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warrants that he has obtained all waivers and/or consents from third parties
which are necessary to enable him to enjoy employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agreement
without being in conflict with any other agreement, obligation or understanding
with any such third party. The Employee represents that he is not bound by any
agreement or any other existing or previous business relationship which
conflicts with, or may conflict with, the performance of his obligations
hereunder or prevent the full performance of his duties and obligations
hereunder.
7. GOVERNING LAW. This Agreement, the employment relationship
contemplated herein and any claim arising from such relationship, whether or not
arising under this Agreement, shall be governed by and construed in accordance
with the internal laws of the Commonwealth of Massachusetts, without giving
effect to the principles of choice of law or conflicts of laws of such
Commonwealth and this Agreement shall be deemed to be performable in
Massachusetts. Any claims or legal actions by one party against the other
arising out of the relationship between the parties contemplated herein (whether
or not arising under this Agreement) shall be commenced or maintained in any
state or federal court located in Massachusetts, and Employee hereby submits to
the jurisdiction and venue of any such court.
8. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement or the other agreements executed in connection with
the transactions contemplated hereby for any reason shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or such
other agreements, but this Agreement or such other agreements, as the case may
be, shall be construed and reformed to the maximum extent permitted by law.
9. WAIVERS AND MODIFICATIONS. This Agreement may be modified, and
the rights, remedies and obligations contained in any provision hereof may be
waived, only in accordance with this Section 9. No waiver by either party of any
breach by the other of any provision hereof shall be deemed to be a waiver of
any later or other breach thereof or as a waiver of any other provision of this
Agreement. This Agreement sets forth all of the terms of the understandings
between the parties with reference to the subject matter set forth herein and
may not be waived, changed, discharged or terminated orally or by any course of
dealing between the parties, but only by an instrument in writing signed by the
party against whom any waiver, change, discharge or termination is sought. No
modification or waiver by the Company shall be effective without the consent of
at least a majority of the members of the Board of Directors excluding the
Employee then in office at the time of such modification or waiver.
10. ASSIGNMENT. The Employee acknowledges that the services to be
rendered by him hereunder are unique and personal in nature. Accordingly, the
Employee may not assign any of his rights or delegate any of his duties or
obligations under this Agreement. The rights and obligations of the Company
under this Agreement shall inure to the benefit of, and shall be binding upon,
the successors and assigns of the Company. To that end, the, Company will
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require any successor (a "Successor To The Business") to all or substantially
all of the business and/or assets of the Company (whether direct or indirect,
by purchase, merger, consolidation or otherwise), expressly to assume and
agree, by agreement in form and substance satisfactory to the Employee, to
perform this Agreement in the same manner and to the same extent that Company
would be required to perform it if no such transaction had taken place. Failure
of the Company to obtain such agreement prior to the effective date of such
transaction shall be a breach of this Agreement and shall entitle the Employee
to compensation and benefits from the Company in the same amount and on the
same terms as the Employee would be entitled hereunder if he were to terminate
his employment pursuant to Section 3(B) of this Agreement. In the event the
Company fails to obtain a successor's agreement to assume this Agreement under
this Section 10, the date upon which any such transaction becomes effective
shall be deemed the termination date and Employee's employment with the Company
will end on that date.
11. ACKNOWLEDGEMENTS. The Employee hereby acknowledges and
recognizes that the enforcement of any of the provisions in this Agreement and
the Noncompetition, Nondisclosure, and Developments Agreement executed
herewith may potentially interfere with the Employee's ability to pursue a
proper livelihood. The Employee represents that he is knowledgeable about the
business of the Company and further represents that he is capable of pursuing a
career in other industries to earn a proper livelihood. The Employee recognizes
and agrees that the enforcement of the Noncompetition, Nondisclosure and
Developments Agreement is necessary to ensure the preservation, protection and
continuity of the business, trade secrets and goodwill of the Company. The
Employee agrees that, due to the proprietary nature of the Company's business,
the restrictions set forth in the Noncompetition, Nondisclosure and
Developments Agreement are reasonable as to time and scope.
12. ENTIRE AGREEMENT. This Agreement, the offer letter dated
June __, 1999, and the Noncompetition, Nondisclosure and Developments Agreement
executed herewith constitutes the entire, understanding of the parties relating
to the subject matter hereof and supersedes and cancels all agreements, written
or oral, made prior to the date hereof between the Employee and the Company
relating to employment, salary, bonus, or other compensation of any
description, equity participation, pension, post-retirement benefits, severance
or other remuneration, except for the Company stock option plan(s) and the
stock option agreement(s) between the Company and the Employee which shall
remain in full force and effect in accordance with their respective terms
(except as modified by this Agreement).
13. NOTICES. All notices hereunder shall be in writing and shall
be delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as follows:
If to the Company, to: Sipex Corporation
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
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If to the Employee, at the Employee's address set forth on the
signature page hereto.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
15. SECTION HEADINGS. The descriptive section headings herein have
been inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written as an instrument under seal.
SIPEX CORPORATION: EMPLOYEE:
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
---------------------------- -----------------------------------
Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
Title: Chairman and CEO
00 Xxxxxxxxx Xxx
-----------------------------------
Xxxxxx Xxxxxxx
Xxxx Xxxxxxxxx, XX 00000
-----------------------------------
City State Zip Code
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EMPLOYEE NONCOMPETITION,
NONDISCLOSURE AND DEVELOPMENTS AGREEMENT
In consideration of and as a condition of my employment or continued
employment by Sipex Corporation (the "Company"), I hereby agree with the Company
as follows:
1. During the period of my employment by the Company, I shall
devote my full time and best efforts to the business of the Company and I shall
neither pursue any business opportunity outside the Company nor take any
position with any organization other than the Company without the approval of a
majority of the disinterested members of the Company's Board of Directors.
Further, during the period of my employment by the Company and for one year
thereafter, I shall not, directly or indirectly, alone or as a partner, officer,
director, employee or stockholder of any entity, (a) engage in any business
activity which is in competition with the products or services being developed,
manufactured or sold by the Company, (b) solicit or do business with any
customer of the Company, or any potential customer of the Company with whom I
have had contact, in competition with the products or services being developed,
manufactured or sold by the Company, or (c) solicit, interfere with or endeavor
to entice away any employee of the Company. For purposes of clause (a) of the
preceding sentence as it relates to the one year period following the
termination of my employment by the Company, an entity which neither sells,
directly or indirectly, its products or services to at least one of the existing
customers of the Company or the customers being actively developed or solicited
by the Company nor proposes to develop products or services for sale, directly
or indirectly, to any such customer, shall not be deemed to be in competition
with the Company.
2. I shall not at any time, whether during or after the
termination of my employment, reveal to any person or entity any Confidential
Information (as defined in EXHIBIT A hereto), except to employees of the Company
who need to know such Confidential Information for the purposes of their
employment, or as otherwise authorized by the Company in writing, and I shall
keep secret all matters entrusted to me and shall not use or attempt to use any
Confidential Information except as may be required in the ordinary course of
performing my duties as an employee of the Company, nor shall I use any
Confidential Information in any manner which may injure or cause loss or may be
calculated to injure or cause loss to the Company, whether directly or
indirectly.
Furthermore, I agree that during my employment I shall not make, use or
permit to be used any Company Documentation (as defined in EXHIBIT A hereto)
otherwise than for the benefit of the Company. I further agree that I shall not,
after the termination of my employment, use or permit others to use any such
Company Documentation, it being agreed that all Company Documentation shall be
and remain the sole and exclusive property of the Company. Immediately upon the
termination of my employment I shall deliver all Company Documentation in my
possession, and all copies thereof, to the Company, at its main office.
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3. If at any time or times during my employment, I shall (either
alone or with others) make, conceive, create, discover, invent or reduce to
practice any Development (as defined in EXHIBIT A hereto) that (a) relates to
the business of the Company or any customer of or supplier to the Company or any
of the products or services being developed, manufactured or sold by the Company
or which may be used in relation therewith; or (b) results from tasks assigned
to me by the Company; or (c) results from the use of premises or personal
property (whether tangible or intangible) owned, leased or contracted for by the
Company, then all such Developments and the benefits thereof are and shall
immediately become the sole and absolute property of the Company and its
assigns, as works made for hire or otherwise. I shall promptly disclose to the
Company (or any persons designated by it) each such Development. I hereby assign
all rights (including, but not limited to, rights to inventions, patentable
subject matter, copyrights and trademarks) I may have or may acquire in the
Developments and all benefits and/or rights resulting therefrom to the Company
and its assigns without further compensation and shall communicate, without cost
or delay, and without disclosing to others the same, all available information
relating thereto (with all necessary plans and models) to the Company.
4. Excluded from this Agreement are my developments that I cannot
assign to the Company because of a prior agreement with ________________________
which is effective until ________________. (Give name and date or write "none").
5. I hereby consent to the use of my name, picture, signature,
voice, image, and/or likeness by the Company during my employment by the Company
and at any time thereafter. Further, I waive all claims I may now have or may
ever have against the Company and its officers, employees, and agents arising
out of the Company's use, adaptation, reproduction, modification, distribution,
exhibition or other commercial exploitation of my name, picture, signature,
voice, image and/or likeness, including but not limited to right of privacy,
right of publicity and celebrity, use of voice, name or likeness, defamation and
copyright infringement. I represent and warrant that I have not made any
contract or commitment in conflict with this consent and waiver.
6. I shall, during my employment and at any time thereafter, at
the request and cost of the Company, promptly sign, execute, make and do all
such deeds, documents, acts and things as the Company and its duly authorized
officers may reasonably require:
(a) to apply for, obtain, register and vest in the name
of the Company alone (unless the Company otherwise directs) patents,
copyrights, trademarks or other analogous protection in any country
throughout the world relating to a Development and when so obtained or
vested to renew and restore the same; and
(b) to defend any judicial, opposition or other
proceedings in respect of such applications and any judicial,
opposition or other proceeding, petition or application for revocation
of any such patent, copyright, trademark or other analogous protection.
7. If the Company 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
relating to a Development, whether because of my
16
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physical or mental incapacity or for any other reason whatsoever, I hereby
irrevocably designate and appoint the Company and its duly authorized officers
and agents as my agent and attorney-in-fact, to act for and in my behalf and
stead 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.
8. I agree that any breach of this Agreement by me will cause
irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder.
9. I understand that this Agreement does not create an obligation
on the Company or any other person or entity to continue my employment.
10. I further represent that my performance of all of the terms of
this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I shall not enter into, any agreement either written or oral in
conflict herewith.
11. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of such provision or any other provision hereof.
12. I hereby agree that each provision herein shall be treated as
a separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses of the
Agreement. Moreover, if one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to scope,
activity, subject or otherwise so as to be unenforceable at law, such provision
or provisions shall be construed by the appropriate judicial body by limiting or
reducing it or them, so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then appear. I hereby further agree that the
language of all parts of this Agreement shall in all cases be construed as a
whole according to its fair meaning and not strictly for or against either of
the parties.
13. Any amendment to or modification of this Agreement, or any
waiver of any provision hereof, shall be in writing and signed by the Company.
14. This Agreement shall be effective as of the date entered
below. My obligations under this Agreement shall survive the termination of my
employment regardless of the manner of such termination and shall be binding
upon my heirs, executors, administrators and legal representatives.
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15. The Company shall have the right to assign this Agreement to
its successors and assigns, and all covenants and agreements hereunder shall
inure to the benefit of and be enforceable by said successors or assigns.
16. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts and shall in all
respects be interpreted, enforced and governed under the internal and domestic
laws of Massachusetts, without giving effect to the principles of conflicts of
laws of such state. Any claims or legal actions by one party against the other
arising out of the relationship between the parties contemplated herein (whether
or not arising under this Agreement) shall be governed by the laws of the
Commonwealth of Massachusetts and shall be commenced and maintained in any state
or federal court located in such state, and I hereby submit to the jurisdiction
and venue of any such court.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as a
sealed instrument this day of , 1999.
Xxxxxx Xxxxx
Name - Please Print
Address: _______________________________
_______________________________
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EXHIBIT A
DEFINITIONS
The term "Company" shall include Sipex Corporation and any of its
subsidiaries, divisions, or affiliates. The Company shall have the right to
assign this Agreement to its successors and assigns, and all covenants and
agreements hereunder shall inure to the benefit of and be enforceable by said
successors or assigns.
The term "Company Documentation" shall mean notes, memoranda, reports,
lists, records, drawings, sketches, specifications, software programs, data,
documentation or other materials of any nature and in any form, whether written,
printed, or in digital format or otherwise, relating to any matter within the
scope of the business of the Company or concerning any of its dealings or
affairs.
The term "Confidential Information" shall mean any information
concerning the organization, business or finances of the Company or of any third
party which the Company is under an obligation to keep confidential that is
maintained by the Company as confidential. Such Confidential Information shall
include, but is not limited to, trade secrets or confidential information
respecting inventions, products, designs, methods, know-how, techniques,
systems, processes, software programs, works of authorship, customer lists,
projects, plans and proposals.
The term "Development" shall mean any invention, modification,
discovery, design, development, improvement, process, software program, work of
authorship, documentation, formula, data, technique, know-how, trade secret or
intellectual property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright, trademark or similar statutes
(including but not limited to the Semiconductor Chip Protection Act) or subject
to analogous protection).
