KEY EMPLOYEE AGREEMENT
To: Xxxxxx X. Xxxxxx
The undersigned, Palomar Medical Technologies, Inc., a Delaware
corporation (the "Company" or "PMTI"), with its principal place of business
located at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000, hereby agrees with you as
follows:
l. POSITION AND RESPONSIBILITIES.
1.1 You shall serve as Chief Financial Officer of the Company, or in such
other executive capacity as shall be designated by the Board of Directors or
Executive Committee of the Company.
1.2 You will 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 executive duties as may be assigned to you by or on authority of
the Company's Chief Executive Officer ("CEO"), President or Chairman of the
Board from time to time. After receipt of notice of termination of your
employment hereunder, you shall continue to be available to the Company on a
part-time basis at reasonable and customary hourly rates to assist in any
necessary transition, lawsuits, or other carry-over issues.
1.3 You will duly, punctually, and faithfully perform and observe any and
all rules and regulations that the Company may now or shall hereafter reasonably
establish governing your conduct as an employee and the conduct of its business.
2. TERM OF EMPLOYMENT.
2.1 The initial term of this Agreement shall be for the period of years
set forth on Exhibit A annexed hereto commencing with the date hereof.
Thereafter, this Agreement shall be automatically renewed for successive periods
of one (1) year, unless you or the Company shall give the other party not less
than two (2) months prior written notice of non-renewal. During the initial term
of this Agreement, your employment with the Company may be terminated as
provided in Sections 2.2 or 2.3.
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2.2 The Company shall have the right to terminate your employment at any
time under this Agreement prior to the stated term in any of the following ways:
(a) on ten (10) days prior written notice to you upon your disability
(disability shall be defined as your inability to perform with or without
reasonable accommodation all of your essential duties under this
Agreement) (if any question shall arise as to whether during any period
you are disabled, so as to be unable to perform all of your essential
duties hereunder, you may, and at the request of the Company shall, submit
to a medical examination by a physician selected by the Company to whom
you or your duly appointed guardian, if any, have no reasonable objections
to determine whether you are so disabled, and such determination shall for
the purposes of this Agreement be conclusive of the issue; if such
question shall arise and you shall fail to submit to such medical
examination, the Company's determination of the issue shall be binding on
you);
(b) immediately without prior notice to you upon your death; if your
employment is terminated because of your death, pursuant to subsection 2.2
(a), all obligations of the Company hereunder cease, except with respect
to amounts and obligations accrued to you, through 30 days from the date
during which your death has occurred;
(c) immediately without prior notice to you by the Company for Cause, as
hereinafter defined;
(d) immediately without prior notice to you or Cause, in the event of the
liquidation or reorganization of the Company under the federal Bankruptcy
Act or any state insolvency or bankruptcy law;
(e) at any time without prior notice to you or Cause, provided that during
the initial term of this Agreement the Company shall be obligated to pay
to you upon notice of termination, as severance pay, your Base Salary as
then in effect in a lump sum payment in addition to all earned incentive
compensation in accordance with Exhibit A attached, less applicable taxes
and other required withholdings and any amounts you may owe to the Company
and continuation of all benefits and insurance payments to the extent
permitted by the Company's plans or policies for one year. If your
employment is terminated without Cause at anytime after the initial term,
the Company shall be obligated to pay a lump sum amount equal to one-half
your Base Salary as then in effect in addition to all earned incentive
compensation in accordance with Exhibit A attached, less applicable taxes
and other required withholdings and any amount you may owe to the Company
and continuation of all benefits and insurance payments by the Company to
the extent permitted by the Company's plans or policies for six months.
If, however, a change in control of the Company should occur causing
termination of your employment without Cause at any time during the term
of this Agreement, then you shall be entitled to receive as severance pay
four times your Base Salary as then in effect in a lump sum payment in
addition to all earned incentive compensation in accordance with Exhibit A
attached. For purposes of this Agreement "change in control" shall be
deemed to be the sale of all or substantially all of the assets of the
Company or the merger of the Company with another entity where the other
entity survives the merger.
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2.3 During the initial term of this Agreement, you shall have the right to
terminate your employment hereunder for any reason, upon not less than ninety
(90) days' prior written notice to the Company.
2.4 "Cause" for the purpose of Section 2 of this Agreement shall mean: (i)
the falseness or material inaccuracy of any of your warranties or
representations herein; (ii) your failure, refusal or inability satisfactorily
to perform the services required of you hereby, or to comply with reasonable
explicit directives of the President, Board of Directors or Executive Committee
with respect to the services to be rendered hereunder; (iii) fraud or
embezzlement involving assets of the Company, its customers, suppliers or
affiliates or other misappropriation of the Company's assets or funds; (iv) your
conviction of a criminal felony offense; (v) any material breach of the terms
hereof; provided however, that the Company provides you with 20 days written
notice specifying the breach relied on for such termination, and only if such
breach has not been cured within such 20-day period; (vi) habitual use of drugs;
or (vii) conduct by you that is materially harmful to the business interest or
reputation of the Company or any of its affiliates.
Any dispute, controversy, or claim arising out of, in connection with, or
in relation to this definition of "Cause" shall be settled by arbitration as
provided in Section 9 hereof. The cost of arbitration, exclusive of the cost of
each party's legal representation (which, except as hereinafter otherwise
provided, shall be borne by the party incurring the expense), shall be borne by
the instigating party; provided, however, that the arbitrators' award may
require either party to reimburse the other for the reasonable cost of legal
representation in the arbitration proceedings.
3. COMPENSATION.
You shall receive the compensation and benefits set forth on Exhibit A
attached hereto ("Compensation") for all services to be rendered by you
hereunder and for your transfer of property rights pursuant to an agreement
relating to proprietary information and inventions of even date herewith
attached hereto as Exhibit C between you and the Company (the "Proprietary
Information and Inventions Agreement").
4. OTHER ACTIVITIES DURING EMPLOYMENT.
4.1 Except for any outside employment and directorships currently held by
you as listed on Exhibit B attached hereto, and except with the prior written
consent of a disinterested majority of the Company's Board of Directors, which
consent will 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 attached
hereto, during your employment hereunder, you will not, directly or indirectly,
engage (i) individually, (ii) as an officer, (iii) as a director, (iv) as an
employee, (v) as a consultant, (vi) as an advisor, (vii) as an agent (whether a
salesperson or otherwise), (viii) as a broker, or (ix) as a partner, covenanter,
stockholder or other proprietor owning directly or indirectly more than five
percent (5) interest in any firm, corporation, partnership, trust, association,
or other organization which is engaged in the planning, research, development,
production, manufacture, marketing, sales, or distribution of products,
equipment, or services similar to those produced by the Company, (such firm,
corporation, partnership, trust, association, or other organization being
hereinafter referred
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to as a "Prohibited Enterprise"). Except as may be shown on Exhibit B
attached hereto, you hereby represent that you are not engaged in any of
the foregoing capacities (i) through (ix) 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, confidentiality, non-competition or other 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 in the absence of Section 5.2.
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
Proprietary Information and Inventions Agreement attached hereto as Exhibit C.
7. POST-EMPLOYMENT ACTIVITIES.
7.1 For a period of one (1) year after the termination or expiration of
your employment, for cause or if you terminated the employment with the Company
hereunder (the "Non-Competition Period"), absent the Board of Directors' prior
written approval, you will not directly or indirectly engage in activities
similar to those described in Section 4.2, nor render services similar or
reasonably related to those which you shall have rendered hereunder to, any
person or entity whether now existing or hereafter established which directly
competes with (or proposes or plans to directly compete with) the Company
("Direct Competitor") in the same or similar business. Nor shall you (i) entice,
induce or encourage any of the Company's other employees to engage in any
activity which, were it done by you, would violate any provision of the
Proprietary Information and Inventions Agreement or this Section 7, or (ii)
directly or indirectly solicit or accept business or orders from customers of
the Company (including end users whom the Company's products or services are
sold through distributors, licensees and the like) for any business which is
similar to or competitive with the business of the Company as then being
conducted. As used in this Agreement, the term "any line of business engaged in
or under demonstrable development by the Company" shall be applied as at the
date of termination of your employment, or, if later, as at the date of
termination of any post-employment consultation.
7.2 During the Non-Competition Period, the provisions of Section 4.2 shall
be applicable to you and you shall comply therewith.
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7.3 Until the conclusion of the Non-Competition Period, you shall give
notice to Company of each new business activity you plan to undertake, at least
fourteen (14) days prior to beginning any such activity. Such notice shall state
the name and address of the person for whom such activity is undertaken and the
nature of your business relationship(s) and position(s) with such persons. You
shall provide the Company with such other pertinent information concerning such
business activity as the Company may reasonably request in order to determine
your continued compliance with your obligations hereunder.
7.4 No provision of this Agreement shall be construed to preclude you from
performing the same services which the Company hereby retains you to perform for
any person or entity which is not a Direct Competitor of the Company upon the
expiration or termination of your employment (or any post-employment
consultation) so long as you do not thereby violate any term of this Agreement
or the Proprietary Information and Inventions Agreement.
7.5 You and the Company are of the belief that the period of time, the
area specified and the nature and scope of the restrictions in Section 7.1 are
reasonable in view of the nature of the business in which the Company is engaged
and proposes to engage, the state of its business development and your knowledge
of this business. However, if such period, such area or the nature and scope of
the restrictions should be adjudged unreasonable in any judicial proceeding,
then the period of time shall be reduced by such number of months, such area
shall be reduced by elimination of such portion of such area, or such nature and
scope of the restrictions shall be modified, as are deemed unreasonable, so that
this covenant may be enforced in such area and during such period of time as is
adjudged to be reasonable.
7.6 You agree and covenant that you will not, unless acting with the
Company's express written consent, directly or indirectly, during the
Non-Competition Period, solicit, entice away or interfere with the Company's
contractual relationships with any customer, client, officer or employee of the
Company.
7.7 You recognize and agree that the injury that the Company will suffer
in the event of your breach of any covenant or agreement contained in this
Section 7 cannot be compensated by monetary damages alone, and you therefore
agree that the Company, in addition to and without limiting any other remedies
or rights that it may have, either under this Agreement or otherwise, shall have
the right to obtain an injunction against you, enjoining any such breach, and
that you shall reimburse the Company for its costs and attorneys' fees of such
action.
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8. SURVIVAL OF TERMS AND REMEDIES.
Your obligations under the Proprietary Information and Inventions
Agreement and the provisions of Sections 7, 8, 9, and 11 of this Agreement (as
modified by Section 4, 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 the Proprietary Information and
Inventions Agreement or Sections 4 or 7 hereof would be inadequate and you
therefore agree that the Company shall be entitled to such injunctive relief in
case of any such breach or threatened breach. Should you engage in any
activities prohibited by this Agreement, you agree to pay over to the Company
all compensation, remuneration or monies or property of any sort received in
connection with such activities; such payment shall not impair any other rights
or remedies of the Company or your obligations or liabilities which you and the
Company may have under this Agreement or applicable law.
9. 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; provided, however, that claims or disputes involving the (i)
unauthorized use or disclosure of Confidential Information (as defined in
Exhibit C), or (ii) the breach or alleged breach by you of any obligations set
forth in Section 7, shall be settled by either a Federal or state court sitting
in Massachusetts and shall not be decided by arbitration pursuant to this
Section, unless you and the company expressly agree otherwise in writing.
Judgment upon any arbitration award may be entered in the highest court, state
or federal, having jurisdiction. Except as otherwise provided in Section 2.4,
the cost of such arbitration shall be borne equally between the parties thereto
unless otherwise determined by such arbitrator; each party shall separately pay
its or his own counsel fees and other costs in connection with the arbitration.
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 by you, except by operation of law
or by a further written agreement by the parties hereto.
11. 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
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OF THE PARTIES THAT if any one or more of the provisions contained in this
Agreement is or becomes or is deemed invalid, illegal or unenforceable or in
case any 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.
12. NOTICES.
Any notice which the Company is required to or may desire to give you
shall be given by 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
registered or certified mail, return receipt requested, addressed to the
Chairman of the Board of 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
the General Counsel of Palomar Medical Technologies, Inc. at its principal
office.
13. WAIVERS.
Failure by the Company to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
terms, covenants or conditions. 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.
14. COMPLETE AGREEMENT; AMENDMENTS.
The foregoing, including Exhibits A, B and C attached 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. This Agreement may be amended or modified or certain provisions waived
only by a written instrument signed and agreed to by the parties hereto, upon
authorization of the Company's Board of Directors.
15. HEADINGS.
The headings of the Sections contained in this Agreement are inserted for
convenience and reference only and in no way define, limit, extend or describe
the scope of this Agreement, the intent of any provisions hereof, and shall not
be deemed to constitute a part hereof nor to affect the meaning of this
Agreement in any way.
16. 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.
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17. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts without regard to its principles of
conflict of laws.
18. EFFECTIVE DATE.
The effective Date of this Agreement is January 1, 1997.
If you are in agreement with the foregoing, please sign your name below
and also at the bottom of the Proprietary Information and Inventions Agreement,
whereupon both Agreements shall become binding in accordance with their 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,
PALOMAR MEDICAL TECHNOLOGIES, INC.
By:
Name:
Title:
Accepted and Agreed:
Xxxxxx X. Xxxxxx
EXHIBIT A
EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF
Xxxxxx X. Xxxxxx
Chief Financial Officer
1. TERM.
The term of the Agreement to which this Exhibit A is annexed and
incorporated shall be for three (3) years from the effective date of this
Agreement, unless renewed in accordance with Section 2.1 of the Agreement or
terminated prior thereto in accordance with Section 2.2 or 2.3 of the Agreement.
2. COMPENSATION.
(a) Base Salary. Your Base Salary shall be TWO HUNDRED THOUSAND DOLLARS
($200,000) per annum, to be paid in accordance with the Company's payroll
policies, and if the Agreement is renewed in accordance with Section 2.1,
to be subject to increases thereafter as determined by the Company's Board
of Directors or Compensation Committee.
(b) Performance Compensation. You will be eligible for a bonus at the end
of each fiscal year as determined by the Board of Directors.
3. VACATION.
You shall be paid for and entitled to all legal holidays, and three (3)
weeks paid vacation per annum. You shall arrange for vacations in advance at
such time or times as shall be mutually agreeable to you and the Company. Any
vacation time not used in any particular year may be carried forward into the
subsequent year. You may not receive pay in lieu of vacation.
4. INSURANCE AND BENEFITS.
You shall be eligible for participation in any health or other group
insurance plan which may be established by the Company or which the Company is
required to maintain by law. You shall also be entitled to participate in any
employee benefit program which the Company may establish for its key employees
or for its employees generally, including, but in no way limited to, bonuses and
stock purchase or option plans. The Company may alter, modify, add to or delete
its employee benefit plans at any time as it, in its sole judgment, determines
to be appropriate, without recourse by you. The Company shall provide
comprehensive health insurance for you and your dependents. Should your
employment be terminated for any reason, the Company will use its best efforts
to allow you to assume these policies.
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5. EXPENSES.
The Company shall reimburse you promptly for all reasonable and ordinary
business and out-of-pocket expenses incurred by you in connection with the
Company's business and in the scope of your employment hereunder, as approved by
the Company, including, without limitation, reasonable and necessary travel
expenses incurred by you during the term of this Agreement, provided the
expenses are incurred in furtherance of the Company's business and at the
request of the Company. You agree to keep and maintain records of the aforesaid
expenses as may be requested by the Company and to account to the Company for
the expenses prior to reimbursement.
The Company shall lease an automobile on your behalf for the initial term
of this Agreement.
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EXHIBIT B
OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS
OF
XXXXXX X. XXXXXX
NONE
EXHIBIT C
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
As of January 1, 1997
To: Xxxxxx X. Xxxxxx
The undersigned, in consideration of and as a condition of my employment
or continued employment by you and/or by your parent company or companies which
you own, control, or are affiliated with or their successors in business
(collectively, the "Company"), hereby agrees as follows:
1. ALL BUSINESS TO BE THE PROPERTY OF THE COMPANY.
I agree that any and all presently existing business of the Company and
all business developed by me or any other employee of the Company including
without limitation all contracts, fees, commissions, compensation, records,
customer or client lists, agreements and any other incident of any business
developed, earned or carried on by me for the Company is and shall be the
exclusive property of the Company, and (where applicable) shall be payable
directly to the Company.
2. CONFIDENTIALITY.
I recognize that my relationship with the Company is one of high trust and
confidence by reason of my access to and contact with the trade secrets and
confidential and proprietary information of the Company. I agree to keep
confidential, except to the extent authorized by the Company in writing for its
benefit, not to disclose or make any use of at any time either during or
subsequent to my employment, any Inventions (as hereinafter defined), trade
secrets and confidential information, knowledge, data or other information of
the Company which is either not generally known outside the Company or is
proprietary and confidential information of the Company or any of its customers
or suppliers relating to products, processes, know-how, techniques, methods,
designs, formulas, test data, customer, employee and supplier lists, business
plans, budgets, costs, markets, marketing plans and strategies, pricing
strategies, operations or other subject matter pertaining to any existing or
contemplated business of the Company or any of its affiliates, which I may
produce, obtain, or otherwise acquire during the course of my employment,
whether I have such information in my memory or embodied in writing or other
tangible form, except as herein provided. I further agree not to deliver,
reproduce or in any way allow any such trade secrets and 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.
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3. RETURN OF CONFIDENTIAL MATERIAL.
In the event my employment with the Company terminates for any reason
whatsoever, I agree to promptly surrender and deliver to the Company all of the
tangible forms of Confidential Information listed in Section 2, all records,
information, materials, equipment, drawings, computer disks, documents and data
of which I may obtain or produce during the course of my employment, and I will
not take with me any description containing or pertaining to any confidential
information, knowledge or data of the Company which I may produce or obtain
during the course of my employment.
4. ASSIGNMENT OF INVENTIONS.
4.1 I hereby acknowledge and agree that the Company is the owner of all
Inventions. In order to protect the Company's rights to such Inventions, by
executing this Agreement I hereby irrevocably assign to the Company all my
right, title and interest in and to all Inventions (without any separate
remuneration or compensation other than that received from time to time in the
course of my employment).
4.2 For purposes of this Agreement, "Inventions" shall mean all research
information, inventions, technical innovations, writings, tabulations,
procedures, developments, know-how, plans, programs, trade secrets, discoveries,
processes, designs, methods, techniques, technology, devices, or improvements in
any of the foregoing or other ideas, whether or not patentable or copyrightable
and whether or not reduced to practice, made or conceived by me (whether solely
or jointly with others) during the period of my employment with the Company
which relate in any manner to the actual or demonstrably anticipated business,
work, or research and development of the Company, or result from or are
suggested by any task assigned to me or any work performed by me for or on
behalf of the Company.
4.3 Any discovery, process, design, method, technique, technology, device,
or improvement in any of the foregoing or other ideas, whether or not patentable
or copyrightable and whether or not reduced to practice, made or conceived by me
whether solely or jointly with others which I develop entirely on my own time
not using any of the Company' equipment, supplies, facilities, or trade secret
information ("Personal Invention") is excluded from this Agreement provided such
Personal Invention (i) does not relate to the actual or demonstrably anticipated
business, research and development of the Company, and (ii) does not result,
directly or indirectly, from any work performed by me for or on behalf of the
Company.
5. DISCLOSURE OF INVENTIONS.
I agree that in connection with any Invention, I will promptly disclose
such Invention to the President, Board of Directors and the Executive Committee
of the Company in order to permit the Company to enforce its property rights to
such Invention in accordance with this Agreement. My disclosure shall be
received in confidence by the Company.
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6. PATENTS AND COPYRIGHTS: EXECUTION OF DOCUMENTS.
6.1 Upon request, I agree to assist the Company or its nominee (at its
expense) during and at any time subsequent to my employment in every reasonable
way to obtain for its own benefit patents and copyrights for Inventions in any
and all countries. Such patent and copyrights shall be and remain the sole and
exclusive property of the Company or its nominee. I agree to perform such lawful
acts as the Company deems to be necessary to allow it to exercise all right,
title and interest in and to such patents and copyrights.
6.2 In connection with this Agreement, I agree to execute, acknowledge and
deliver to the Company or its nominee upon request and at its expense all
documents, including assignments of title, patent or copyright applications,
assignments of such applications, assignments of patents or copyrights upon
issuance, as the Company may determine necessary or desirable to protect the
Company's or its nominee's interest in Inventions, and/or to use in obtaining
patents or copyrights in any and all countries and to vest title thereto in the
Company or its nominee to any of the foregoing.
7. MAINTENANCE OF RECORDS.
It is understood that all Personal Inventions if any, whether patented
or unpatented, which I made prior to my employment by the Company, are excluded
from this Agreement. To preclude any possible uncertainty, I have set forth on
Schedule A attached hereto a complete list of all of my prior Personal
Inventions, including numbers of all patents and patent applications and a brief
description of all unpatented Personal Inventions which are not the property of
a previous employer. I represent and covenant that the list is complete and
that, if no items are on the list, I have no such prior Personal Inventions. I
agree to notify the Company in writing before I make any disclosure or perform
any work on behalf of the Company which appears to threaten or conflict with
proprietary rights I claim in any Personal Invention. In the event of my failure
to give such notice, I agree that I will make no claim against the Company with
respect to any such Personal Invention.
8. OTHER OBLIGATIONS.
I acknowledge that the Company from time to time may have agreements with
other persons, companies, entities, the U.S. Government or agencies thereof,
which impose obligations or restrictions on the Company regarding Inventions
made during the course of work thereunder or regarding the confidential nature
of such work. I agree to be bound by all such obligations and restrictions and
to take all action necessary to discharge the Company's obligations.
9. INJUNCTIVE RELIEF.
You recognize and agree that the injury that the Company will suffer in
the event of your breach of any covenant or agreement contained in this
Proprietary Information and Confidentiality Agreement cannot be compensated by
monetary damages alone, and you therefore agree that the Company, in addition to
and without limiting any other remedies or rights that it may have, either under
this Proprietary Information and Confidentiality Agreement or otherwise, shall
have the right to obtain an injunction against you, enjoining any such breach,
and that you shall reimburse the Company for its costs and attorneys' fees of
such action.
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10. BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives and successors. I
expressly consent to be bound by the provisions of this Agreement for the
benefit of the Company or any parent, subsidiary or affiliate thereof to whose
employ I may be transferred without the necessity that this Agreement be
resigned at the time of such transfer.
11. 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 provision of this Agreement is or becomes or is deemed
invalid, illegal or unenforceable or in case 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, 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.
12. WAIVERS.
Failure by the Company to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such
terms, covenants or conditions. 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.
13. ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement between the parties and
supersedes any prior oral or written communications, representations,
understandings or agreements concerning the subject matter hereof with the
Company or any officer or representative thereof. This Agreement does not
constitute an employment agreement, and no changes in any compensation, title or
duties or any other terms or conditions of my employment, including, without
limitation, the termination of my employment, shall affect the provisions of
this Agreement, except as stated herein. This Agreement may be amended,
modified, or certain provisions waived only by a written instrument signed by
the parties hereto, upon authorization of the Company's Board of Directors.
4
14. HEADINGS.
The headings of the Sections contained in this Agreement are inserted for
convenience and reference only and in no way define, limit, extend or describe
the scope of this Agreement, the intent of any provisions hereof, and shall not
be deemed to constitute a part hereof nor to affect the meaning of this
Agreement in any way.
15. 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.
16. GOVERNING LAW.
This Agreement shall be deemed to be a sealed instrument and shall be
governed and construed in accordance with the laws of the Commonwealth of
Massachusetts, without regard to its principles of conflict of laws.
17. NOTICES.
Any notice which the Company is required to or may desire to give you
shall be given by 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
registered or certified mail, return receipt requested, addressed to the
Chairman of the Board of 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
the General Counsel of Palomar Medical Technologies, Inc. at its principal
office.
EMPLOYEE
Xxxxxx X. Xxxxxx
Accepted and Agreed:
PALOMAR MEDICAL TECHNOLOGIES, INC.
By:
Name:
Title:
SCHEDULE A
LIST OF PRIOR INVENTIONS
OF
XXXXXX X. XXXXXX
