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Exhibit 10.9
KEY EMPLOYEE NON-COMPETE AGREEMENT
THIS KEY EMPLOYEE NON-COMPETE AGREEMENT IS MADE AS OF THE ___________
between Cellomics, Inc., ("Cellomics") and _________________ ("Employee") an
individual residing in ___________________, _______________________________.
WHEREAS, Employee will be engaged by Cellomics, in a position of trust
and confidence in which Employee will learn of, have access to, and develop
confidential trade secret and other proprietary Information of Cellomics; and
WHEREAS, Cellomics desires to protect its rights in such confidential,
trade secret and other proprietary Information and to impose certain
restrictions upon Employee's ability to compete with the business of the
Company;
NOW THEREFORE, Cellomics and Employee, in consideration for Cellomics' offer of
employment to Employee, intending to be legally bound, agree as follows:
1. POSITION AND RESPONSIBILITIES
1.1. Employee shall serve and shall perform such duties at such
place or places as the Company shall designate,
1.2. Employee will, to the best of Employee's ability, devote
Employee's full time and best efforts to the performance of
Employee's duties hereunder and to the business and affairs of
the Company.
1.3. Employee will duly, punctually and faithfully perform and
observe any and all 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 Employee's employment shall be one (1)
year, commencing with the date hereof. Thereafter, this
agreement will be extended automatically for one (1)
additional year from the date hereof, unless the Company
notifies Employee in writing, not later than ninety days (90)
preceding the end of the first year, that the agreement will
not be extended.
2.2 The Company shall have the right, on written notice to
Employee, to terminate Employee's employment:
(a) immediately for cause, or
(b) at any time without cause provided the Company shall
be obligated to pay to Employee as severance pay an
amount equal to 3 months' basic salary, less
applicable taxes and other required withholdings and
any amount
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Employee may owe to the Company, payable in equal
monthly installments on the last day of each month
commencing the last day of the month following the
date of termination.
2.3 For purposes of Section 2.2, the term "cause" shall include
(i) Employee's failure or refusal to render services to the
Company in accordance with Employee's obligations under this
Agreement, including Employee's voluntary termination of
employment; (ii) the commission by Employee of an act of fraud
or embezzlement against the Company or the commission by
Employee of any other action with the intent to injure the
Company; or (iii) an act of moral turpitude by Employee which
is materially detrimental to the business of the Company; or
(iv) Employee's having been convicted of a felony other than
traffic offenses which do not bring Employee or the Company
into disgrace or disrepute.
3. COMPENSATION. The Company shall pay to Employee for the service to be
rendered hereunder a basic salary at an annual rate of $___________,
subject to increase in accordance with the policies of the Company, as
determined by its Board of Directors, from time to time, payable in
installments in accordance with Company policy. Employee shall also be
entitled to all rights and benefits for which Employee shall be
eligible under deferred bonus, pension, group insurance, profit-sharing
or other company benefits which may be in force from time to time and
provided to Employee or for the Company's employees generally.
4. OTHER ACTIVITIES DURING EMPLOYMENT
4.1 Except with the prior written consent of the Company's Board
of Directors or as described on Exhibit A hereto, Employee
will not during the term of this Agreement undertake or engage
in any other employment, occupation or business enterprise
other than one in which Employee is an inactive investor. This
provision shall not be deemed to preclude membership in
professional societies, lecturing or the acceptance of
honorary positions, that are in any case incidental to
Employee's employment by the Company and which are not adverse
or antagonistic to the Company, its business or prospects,
financial or otherwise.
4.2 Except as permitted by Section 4.3, Employee will not acquire,
assume or participate in, directly or indirectly, any
position, investment or interest adverse or antagonistic to
the Company, its business or prospects, financial or
otherwise, or take any action towards any of the foregoing.
4.3 During the term of Employee's employment by the Company,
except on behalf of the Company or its subsidiaries, Employee
will not directly or indirectly, whether as an officer,
director, Employee, stockholder, partner, proprietor,
associate, representative, or otherwise, become or be
interested in any other person, corporation, firm, partnership
or other entity whatsoever which directly competes with the
Company, in any part of the world, in any line of business
engaged in (or which the Company has made plans to be engaged
in) by the Company; provided however, that anything above to
the contrary notwithstanding, Employee may
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own, as an inactive investor, securities of any competitor
corporation, so long as Employee's holdings in any one such
corporation shall not in the aggregate constitute more than
one percent (1%) of the voting stock of such corporation.
5. FORMER EMPLOYMENT
5.1 Employee represents and warrants that Employee's employment by
the Company will not conflict with and will not be constrained
by any prior employment or consulting agreement or
relationship. Subject to Section 5.2, Employee represents and
warrants that Employee does not possess confidential
information arising out of prior employment which, in
Employee's best judgment, would be utilized in connection with
Employee's employment by the Company in the absence of Section
5.2.
5.2 If, in spite of the second sentence of Section 5.1, Employee
should find that confidential information belonging to any
former employer might be usable in connection with the
Company's business, you will not intentionally disclose to the
Company or use on its behalf any confidential information
belonging to any of Employee's former employers; but during
Employee's employment by the Company Employee will use in the
performance of Employee's duties all information which is
generally known and used by persons with training and
experience comparable to Employee's own and all information
which is common knowledge in the industry or otherwise legally
in the public domain.
6. EMPLOYEE INNOVATION AND PROPRIETARY INFORMATION. Employee agrees to be
bound by the provisions of the Proprietary Information and Property
Agreement made as of _________________________ by and between Employee
and the Company (the "Proprietary Information and Property Agreement").
7. POST-EMPLOYMENT ACTIVITIES
7.1 As a result of Employee's position with the Company, Employee
will have access to significant confidential and proprietary
information of the Company. In addition, the Company has
agreed to impose certain restrictions upon Employee's ability
to compete with the business of the Company. Employee
understands and acknowledges that these restrictions are fair
and reasonable given, among other things, the worldwide market
for the Company's products and technologies. Based on the
foregoing, and in consideration thereof and of the payments to
be made to Employee by the Company pursuant to this Agreement,
until twelve (12) months after the termination of Employee's
employment with the Company, absent the Company's prior
written approval, Employee will not directly or indirectly:
(a) engage in activities for, nor render services to, any
firm or business organization which directly competes
with the Company or any Subsidiary in any line of
business engaged in by the Company or any Subsidiary
(or which the Company or any Subsidiary has made
plans to be engaged in), whether now existing or
hereafter established, nor shall Employee engage
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in such activities nor render such services to any
other person or entity engaged or about to become
engaged in such activities to, for, or on behalf of,
any such firm or business organization;
(b) solicit Employees of the Company or any Subsidiary to
leave its employ;
(c) offer or cause to be offered employment to any person
who is employed by the Company or any Subsidiary at
any time during the six months prior to the
termination of Employee's employment with the
Company;
(d) entice, induce or encourage any of the Company's or
any Subsidiary's other Employees to engage in any
activity which, were it done by you, would violate
any provision of this Section 7; or
(e) otherwise attempt to interfere with or disrupt the
business or activities of the Company or any
Subsidiary.
7.2 Upon Employee's written request to the Company specifying the
activities proposed to be conducted by you, the Company may in
its discretion give Employee written approval(s) to personally
engage in any activity or render services referred to in
Section 7.1 upon receipt of written assurances (satisfactory
to the Company and its counsel) from Employee and from
Employee's prospective employer(s) that the integrity of the
Proprietary Information Agreement and the provisions of
Section 7.1 will not in any way be jeopardized or violated by
such activities, provided the burden of so establishing the
foregoing to the satisfaction of the Company and said counsel
shall be upon Employee and Employee's prospective employer(s).
8. REMEDIES. Employee's duties under the Proprietary Information Agreement
and Section 7 shall survive termination of Employee's employment with
the Company. Employee acknowledges that a remedy at law for any breach
or threatened breach by Employee of the provisions of the Proprietary
Information Agreement or Section 7 would be inadequate and Employee
therefore agrees that the Company shall be entitled to injunctive
relief in case of any such breach or threatened breach.
9. POST EMPLOYMENT EARNINGS
9.1 If after conscientious effort (which the Company may ask
Employee to establish to its reasonable satisfaction), during
any period in which Employee is subject to the restrictions of
Section 7.1, Employee is unable primarily due to such
restrictions to obtain a position comparable to that last held
by Employee with the Company, and which, together with any
consulting fees then being paid to Employee by the Company,
shall be as remunerative as Employee's monthly remuneration
with the Company when Employee's employment terminated
(hereinafter Employee's "Remuneration"), then, the Company
shall (subject to Section 9.3) pay to Employee monthly, as an
additional consulting fee or otherwise, a sum (the
"Guarantee") such that Employee's then monthly remuneration
shall be equal to Employee's Remuneration. No payment shall be
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made pursuant to this Section 9.1 with respect to any period
for which Employee is receiving severance pay pursuant to
Section 2.2(b).
9.2 Employee shall notify the Company in writing within 15 days
after any calendar month as to whether Employee seeks payment
of the Guarantee under Section 9.1. Employee must establish
the amount of such Guarantee sought to the Company's
reasonable satisfaction, whereupon the Company shall promptly
(and, in any event, within 15 days of receipt of Employee's
notification) pay to Employee the amount of the Guarantee so
established.
9.3 The Company at any time may, upon 90 days' written notice,
notify Employee that it prospectively shall not make any
further payments of the Guarantee, whereupon Employee shall
thenceforth cease to be bound by any of the restrictions of
Sections 7.1 or 7.2. All prohibitions of the Proprietary
Information Agreement shall survive the Company's decision
under this Section 9.3 not to continue the Guarantee.
10. 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 you.
11. INTERPRETATION. 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. If,
moreover, any one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
12. NOTICES. Any notice which the Company is required or may desire to give
to Employee shall be given to Employee by personal delivery or
registered or certified mail, return receipt requested, addressed to
Employee at the address of record with the Company, or at such other
place as Employee may from time to time designate in writing. Any
notice which Employee is required or may desire to give to the Company
hereunder shall be given by personal delivery or by registered
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. The date of personal delivery or the
dates of mailing any such notice shall be deemed to be the date of
delivery thereof.
13. WAIVERS. If either party shall waive any breach of any provision of
this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of
this Agreement.
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14. 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 hereof.
15. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the Commonwealth of
Pennsylvania.
16. COMPLETE AGREEMENT; AMENDMENTS; PRIOR AGREEMENTS. The foregoing is the
entire Agreement of the parties with respect to the subject matter
hereof and may not be amended, supplemented, cancelled or discharged
except by written instrument executed by both parties hereto. This
Agreement supersedes any and all prior agreements between the Company
and Employee with respect to the matters covered hereby.
Employee is fully aware of Employee's right to discuss any and all aspects of
this Agreement with an attorney chosen by Employee, and Employee further
acknowledges that she/he has carefully read and fully understands all of the
provisions of this Agreement and that Employee, in all consideration for
Cellomics' offer of employment, is voluntarily entering into this Agreement.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but which together shall constitute one and the same
instrument.
The headings used in this Agreement are for convenience only and are
not to be considered in construing or interpreting this Agreement.
This Agreement shall be interpreted and enforced pursuant to the laws
of the Commonwealth of Pennsylvania.
WITNESS the execution hereof as of the date first above written.
Employee: Cellomics, Inc. (Cellomics):
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Employee Signature Signature
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Employee Name Name and Title
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Date Date
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