1
EXHIBIT 10.33
KEY EMPLOYEE AGREEMENT
To: Xxxxxxx Xxxxxx, Ph.D. As of September 15, 1997
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
The undersigned, Centennial Technologies, Inc., a Delaware corporation
(the "Company"), hereby agrees with you as follows:
1. POSITION AND RESPONSIBILITIES.
1.1 You shall serve as the Senior Vice President of
Operations of the Company or in a comparable position with similar
responsibilities, as designated by the Company's Chief Executive Officer, and
shall perform such functions as are customarily associated with such capacity
from time to time at the Company's headquarters or such place or places as are
appropriate and necessary in connection with such employment.
1.2 You will, to the best of your ability, devote your
full time and best efforts to the performance of your duties hereunder and the
business and affairs of the Company. You agree to perform such duties consistent
with your position as may be lawfully and reasonably assigned to you by the
Company's Chief Executive Officer from time to time. Such duties may include
similar responsibilities with companies in which the Company has a majority
ownership interest.
1.3 You will duly, punctually and faithfully perform and
observe any and all lawful rules and regulations that the Company may now or
shall hereafter establish governing the conduct of its business.
2. TERM OF EMPLOYMENT.
2.1 The initial term of this Agreement shall be for one
(1) year, subject to earlier termination in accordance with Section 2.2 hereof.
Thereafter, this Agreement may be renewed upon the written agreement of you and
the Company. This initial term and this Agreement is not to be construed as an
agreement, either expressed or implied, to employ you for a stated term, and
shall in no way alter the Company's policy of employment at will, allowing
-1-
2
either you or the Company to remain free to terminate the employment
relationship with or without cause at any time.
2.2 The Company shall have the right to terminate your
employment at any time either (a) for "cause" (as defined herein), or (b)
without cause. If the Company terminates your employment for cause, the Company
shall be obligated to pay you an amount equal to your salary and vacation pay
which is accrued and unpaid up to the date of such termination. If the Company
terminates your employment without cause, the Company shall be obligated to pay
you your Base Salary (as defined in Exhibit A attached hereto) for a period of
three (3) months (the "Severance Period"). The Company shall also continue in
full force and effect for the Severance Period all health and insurance benefits
that you enjoyed at the time of your termination without cause, and all other
benefits which applicable law requires to be continued. These severance payments
would be in lieu of all other severance by the Company to which you might be
entitled and is conditioned upon your execution of a general release in a form
satisfactory to the Company.
2.3 For purposes of Section 2.2 hereof, the term "cause"
shall mean the following: (i) your involvement in any felony crime, material
arrestable criminal offense (excluding road traffic offenses for which a fine or
non-custodial penalty is imposed), or any crime in connection with your
employment with the Company (including theft of Company assets); or (ii)
material insubordination or your unreasonable failure to take actions permitted
by law and necessary to implement strategies or policies of the Company and
which are consistent with your positions and duties, following written warning
of such material insubordination or unreasonable failure; or (iii) drunkenness
or use of any drug or narcotic which adversely affects your job performance; or
(iv) any knowing or intentional misrepresentation of significant information
important to the operating condition of the Company; or (v) acting in material
breach or contravention of any non-competition, non-disclosure or
non-solicitation covenants hereof.
3. COMPENSATION. You shall receive the compensation and benefits
set forth on Exhibit A hereto ("Compensation") for all services to be rendered
by you hereunder and for your transfer of property rights, if any, pursuant to
an agreement relating to inventions and non-disclosure of even date herewith
attached hereto and made a part hereof as Exhibit C between you and the Company
(the "Invention and Non-Disclosure Agreement") and pursuant to an agreement
relating to non-competition and non-solicitation of even date herewith attached
hereto and made a part hereof as Exhibit D between you and the Company (the
"Non-Competition and Non-Solicitation Agreement").
4. OTHER ACTIVITIES DURING EMPLOYMENT.
4.1 Except for any outside employments and directorships
currently held by you as listed on Exhibit B hereto, if any, and except with the
prior written consent of the
-2-
3
Company's Board of Directors (which approval shall not be unreasonably
withheld), you will not during the term of this Agreement undertake or engage in
any other employment, occupation or business enterprise other than one in which
you are an inactive investor.
4.2 You hereby agree that, except as disclosed on Exhibit
B hereto, during your employment hereunder, you will not, directly or
indirectly, engage (a) individually, (b) as an officer, (c) as a director, (d)
as an employee, (e) as a consultant, (f) as an advisor, (g) as an agent (whether
a salesperson or otherwise), (h) as a broker, or (i) as a partner, coventurer,
stockholder or other proprietor owning directly or indirectly more than one
percent (1%) interest, in any firm, corporation, partnership, trust,
association, or other organization which is engaged in any line of business
engaged in or under demonstrable development by the Company (such firm,
corporation, partnership, trust, association, or other organization being
hereinafter referred to as a "Prohibited Enterprise"). You hereby represent that
you are not presently engaged in any of the foregoing capacities described in
(a) through (i) in any Prohibited Enterprise.
5. FORMER EMPLOYERS.
5.1 You represent and warrant that your employment by the
Company will not conflict with and will not be constrained by any prior or
current employment, consulting agreement or relationship whether oral or
written. You represent and warrant that you do not possess confidential
information arising out of any such employment, consulting agreement or
relationship which, in your best judgment, would be utilized in connection with
your employment by the Company.
5.2 If, in spite of the second sentence of Section 5.1,
you should find that confidential information belonging to any other person or
entity might be usable in connection with the Company's business, you will not
intentionally disclose to the Company or use on behalf of the Company any
confidential information belonging to any of your former employers; but during
your employment by the Company you will use in the performance of your duties
all information which is generally known and used by persons with training and
experience comparable to your own, all information which is common knowledge in
the industry or otherwise legally in the public domain.
6. PROPRIETARY INFORMATION AND INVENTIONS. You agree to execute,
deliver and be bound by the provisions of the Invention and Non-Disclosure
Agreement attached hereto as Exhibit C and incorporated herein.
7. POST-EMPLOYMENT ACTIVITIES. You agree to execute, deliver and
be bound by the provisions of the Non-Competition and Non-Solicitation Agreement
attached hereto as Exhibit D and incorporated herein.
-3-
4
8. REMEDIES. Your obligations under the Proprietary Information
and Inventions Agreement and the provisions of Sections 9, 10 and 11 of this
Agreement (as modified by Section 12, if applicable) shall survive the
expiration or termination of your employment (whether through your resignation
or otherwise) with the Company. You acknowledge that a remedy at law for any
breach or threatened breach by you of the provisions of this Agreement or the
Proprietary Information and Inventions Agreement would be inadequate and you
therefore agree that the Company shall be entitled to injunctive relief in case
of any such breach or threatened breach.
9. ASSIGNMENT. This Agreement and the rights and obligations of
the parties hereto shall bind and inure to the benefit of any successor or
successors of the Company by reorganization, merger or consolidation and any
assignee of all or substantially all of its business and properties, but, except
as to any such successor or assignee of the Company, neither this Agreement nor
any rights or benefits hereunder may be assigned by the Company or by you,
except by operation of law or by a further written agreement by the parties
hereto.
10. CONFIDENTIALITY. You agree to keep confidential, except as the
Company may otherwise consent in writing, and, except for the Company's benefit,
not to disclose or make any use of at any time either during or subsequent to
your employment, any trade secrets, confidential information, knowledge, data or
other information of the Company relating to products, processes, know-how,
techniques, methods, designs, formulas, test data, customer lists, business
plans, marketing plans and strategies, pricing strategies, or other subject
matter pertaining to any business of the Company or any of its affiliates, which
you may produce, obtain, or otherwise acquire during the course of your
employment, except as herein provided. You further agree 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 to or used by any third parties without specific direction or
consent of a duly authorized representative of the Company.
11. ARBITRATION. Any dispute concerning this Agreement including,
but not limited to, its existence, validity, interpretation, performance or
non-performance, arising before or after termination or expiration of this
Agreement, shall be settled by a single arbitrator in Boston, Massachusetts, in
accordance with the expedited procedures of the commercial rules then in effect
of the American Arbitration Association. Judgment upon any award may be entered
in the highest court, state or federal, having jurisdiction.
12. INTERPRETATION. IT IS THE INTENT OF THE PARTIES THAT in case
any one or more of the provisions contained in this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the other provisions
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. MOREOVER, IT
IS THE INTENT OF THE PARTIES THAT if any one or more of the provisions contained
in this
-4-
5
Agreement is or becomes or is deemed invalid, illegal or unenforceable or in
case any provision shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by amending, limiting and/or reducing it to conform to applicable laws
so as to be valid and enforceable or, if it cannot be so amended without
materially altering the intention of the parties, it shall be stricken and the
remainder of this Agreement shall remain in full force and effect.
13. NOTICES. Any notice which the Company is required to or may
desire to give you shall be given by personal delivery or registered or
certified mail, return receipt requested, addressed to you at your address of
record with the Company, or at such other place as you may from time to time
designate in writing. Any notice which you are required or may desire to give to
the Company hereunder shall be given by personal delivery or by registered or
certified mail, return receipt requested, addressed to the Company at its
principal office, or at such other office as the Company may from time to time
designate in writing with a copy to S. Xxxxxx Xxxxxx, Esquire, Xxxx and Xxxx,
L.L.P., Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The date of personal
delivery or the date of mailing of any notice under this Section 13 shall be
deemed to be the date of delivery thereof.
14. WAIVERS. No waiver of any right under this Agreement shall be
deemed effective unless contained in a writing signed by the party charged with
such waiver, and no waiver of any right arising from any breach or failure to
perform shall be deemed to be a waiver of any future such right or of any other
right arising under this Agreement. If either party should waive any breach of
any provision of this Agreement, such party shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
15. COMPLETE AGREEMENT; AMENDMENTS. The foregoing, including
Exhibits A, B, C and D hereto, is the entire agreement of the parties with
respect to the subject matter hereof, superseding any previous oral or written
communications, representations, understandings, or agreements with the Company
or any officer or representative thereof. Any amendment to this Agreement shall
be effective only if evidenced by a written instrument executed by the parties
hereto, upon authorization of the Company's Board of Directors.
16. HEADINGS. The headings of the Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning of this Agreement.
17. COUNTERPARTS. This Agreement may be signed in two
counterparts, each of which shall be deemed an original and both of which shall
together constitute one agreement.
18. GOVERNING LAW. This Agreement shall be governed by and
construed under Massachusetts law, without regard to its conflict of laws
principles.
-5-
6
If you are in agreement with the foregoing, please sign your name below
and also at the bottom of the Invention and Non-Disclosure Agreement and the
Non-Competition and Non-Solicitation Agreement, whereupon this Agreement shall
become binding in accordance with its terms. Please then return this Agreement
to the Company. (You may retain for your records the accompanying counterpart of
this Agreement enclosed herewith).
Very truly yours,
CENTENNIAL TECHNOLOGIES, INC.
By:
L. Xxxxxxx Xxxx
Chief Executive Officer
Accepted and Agreed:
Xxxxxxx Xxxxxx
-6-
7
EXHIBIT A
EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF
XXXXXXX XXXXXX
1. TERM. The term of the Agreement to which this Exhibit A is annexed and
incorporated shall be until September 14, 1998.
2. COMPENSATION. Your Base Salary shall be $125,000 per annum, payable in
accordance with the payroll policies established by the Company.
3. STOCK OPTIONS. Upon acceptance of this Agreement, you shall be granted
a non-qualified stock option to purchase 125,000 shares of the common
stock of the Company pursuant to the Company's 1994 Stock Option Plan
at the fair market value determined by the Company's Board of
Directors. This stock option shall vest one-third on September 15,
1998, one-third on September 15, 1999, and one-third on September 15,
2000. In the event you are terminated without cause pursuant to
paragraph 2.2 of the Agreement, the vesting of said options shall
accelerate to the next scheduled vesting date following the date of
termination without cause. In the event of a sale or acquisition of
substantially all of the stock or assets of the Company, the Company
shall give you thirty (30) days notice of such an event and advise you
that any of your then outstanding options shall be immediately
exercisable before the event takes place, whether or not by their terms
the stock options are then vested. If this Agreement is terminated
within one (1) year of the commencement thereof for any reason other
than for cause, that portion of the stock options scheduled to vest on
September 15, 1998 shall vest and become exercisable.
4. REIMBURSEMENT OF HOUSING AND TRAVEL EXPENSES. The Company will
reimburse you at a rate of one thousand dollars ($1,000) per month for
all reasonable expenses incurred by you for housing and travel required
in connection with the furnishing of services hereunder.
5. VACATION. You shall be entitled to two (2) weeks paid vacation per year
to be taken at such times as are consistent with the interests of the
Company.
6. OTHER BENEFITS. You shall be eligible for participation in any health,
group insurance plan, or pension insurance and benefits plan that may
be established by the Company or which the Company is required to
maintain by law.
A-1
8
EXHIBIT B
OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS OF
XXXXXXX XXXXXX
None
A-2
