EXHIBIT 10.26
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THIRD AMENDED AND RESTATED
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EMPLOYMENT AGREEMENT
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THIS AGREEMENT, entered into as of the 20th day of February, 2000, amends
and restates the Amended and Restated Agreement, dated as of the 20th day of
February, 1998, by and between KOPIN CORPORATION, a Delaware corporation with
its principal place of business at 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxx XX
00000 (the "Employer"), and Xxxx C. C. Fan, an individual residing at 00 Xxxxx
Xxxx, Xxxxxxxxx, XX 00000 (the "Employee"), as first amended and restated as of
May 1, 1995.
(S)1. Freedom to Contract. The Employee represents that he is free to
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enter into this Agreement, that he has not made and will not make any agreements
in conflict with this Agreement, and will not disclose to the Employer, or use
for the Employer's benefit, any trade secrets or confidential information now or
hereafter in the Employee's possession which is the property of any other party.
(S)2. Employment. The Employer hereby employs the Employee, and the
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Employee hereby accepts his employment by the Employer, upon the terms and
conditions set forth herein.
(S)3. Effective Date and Term. This Agreement shall take effect as of
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February 20, 2000 (the "Effective Date"), and shall continue thereafter in full
force and effect through February 20, 2002, unless terminated prior to such time
in accordance with the provisions of this Agreement.
(S)4. Title and Duties; Extent of Services. The Employee shall promote
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the business and affairs of the Employer as President and Chief Executive
Officer of the Employer, with responsibility for performing such duties
consistent with such position as the Board of Directors may from time to time
designate. As long as he is employed hereunder, the Employee shall also
continue to serve, if elected by the Shareholders, as a member of the Board of
Directors of the Employer.
(S)5. Termination Rights of the Parties. The employment of the Employee
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by the Employer under this Agreement may be terminated at any time by either the
Employee or Employer upon 360 days' prior written notice of such termination to
the other.
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(S)6. Compensation. Employee shall be paid a salary at an initial annual
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rate of Three Hundred Fifty Thousand Dollars ($350,000) through December 31,
2000. The Board of Directors, in its sole discretion, shall have the absolute
right to determine the Employee's salary and benefits for each subsequent fiscal
year during the term hereof, provided that in no event shall such salary and
such benefits be less than such initial annual rate and the benefits awarded to
the Employee during the initial year hereof. The Employer agrees to diligently
review and consider alternative means of providing the Employee with additional
tax advantaged compensation.
(S)7. Inventions and Proprietary Information.
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(S)7.1. Inventions. Employee shall inform the Employer using the
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established procedures promptly and fully of all inventions, improvements,
discoveries, know-how, designs, processes, formulae and techniques, and any
related suggestions and ideas (hereinafter "Inventions"), whether patentable or
not, which are solely or jointly conceived or made by Employee, during the
period of Employee's employment by the Employer, whether during or out of
Employee's usual hours of work. The Employer shall own all right, title and
interest to those inventions (hereinafter "Employer Inventions") which are: (a)
within the scope of the Employer's business, which includes areas in which
research is being conducted and areas of technical or market investigation;
and/or (b) related to work done for the Employer by Employee. Employee hereby
assigns and agrees to assign to the Employer Employee's entire right, title and
interest in all Employer Inventions and any patents, design patents, and any
other forms of intellectual property resulting therefrom. Employee shall
protect the Employer's right to patent Employee's Employer Inventions by keeping
written records, which are witnessed and dated, concerning dates of conception
and reduction to practice, and Employee shall not publish information concerning
Employer Inventions without prior approval from the Employer. Employee shall
also, during and after Employee's employment, execute such written instruments
and render such other assistance as the Employer shall reasonably request to
obtain and maintain patents, design patents, or other forms of protection on any
Employer Inventions and to vest and confirm in the Employer its entire right,
title and interest therein. In this regard, Employee shall be reimbursed by the
Employer for actual expenses incurred and, if no longer an employee of the
Employer, shall be reasonably compensated for assistance rendered.
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(S)7.2. Proprietary Information. (a) Employee understands that as a
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consequence of Employee's employment by the Employer, proprietary data and
confidential information (both hereinafter referred to as "Information")
relating to the business of the Employer may be disclosed to Employee or
developed by Employee which is not generally known in the Employer's trade and
which is of considerable value to the Employer. Such Information includes,
without limitation, information about trade secrets, the Employer Inventions (as
previously defined), patents, licenses, research projects, costs, profits,
markets, sales, customer lists, plans for future development, and any other
information of a similar nature to the extent not generally known in the trade.
Employee acknowledges and agrees that Employee's relationship to the Employer
with respect to such Information shall be fiduciary in nature. Employee shall
not make any use of any such Information except in the performance of Employee's
work for the Employer; Employee shall maintain such Information in confidence;
and Employee shall not disclose to any person not employed by the Employer any
such Information at any time either during or after Employee's employment or use
any such Information in connection with other employment, except as authorized,
in writing, by a duly empowered officer of the Employer.
(b) Employee shall deliver promptly to the Employer on termination of
Employee's employment, or at any time the Employer so requests, all memoranda,
notes, records, reports, manuals, drawings, blueprints, plans, customer lists,
pricing and/or cost data, and all other property or materials belonging to the
Employer, including all copies thereof, which Employee then possesses or has
under Employee's control.
(c) Employee covenants that there are no Inventions and/or patents
within the scope of the Employer's business in which Employee held an interest
prior to the date of this Agreement and which are not subject to this Agreement.
(S)7.3. Remedies. Employee recognizes that irreparable injury may result
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to the Employer, its business and property, in the event of a breach of any of
the agreements, assurances and understandings contained herein. Employee
further recognizes that in the event of such a breach, or the substantial
likelihood that such a breach will occur, the Employer intends to take legal
action, and to seek injunctive relief if available, in accordance with the
language and spirit of this Agreement in order to protect fully its interests
and property.
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(S)8. Covenant Not to Compete.
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(a) The Employee recognizes that the Employer is engaged in the
development and sale of III-IV compounds used in semiconductors and related
products in Massachusetts and throughout the United States and the world and in
the development of liquid crystal electronic imaging devices and display
products based thereon (collectively, the "Principal Business"). In the event
of the termination of the Employee's employment hereunder, voluntarily or for
cause (as defined in Section 8(d) below) and so long as the Employer is not in
breach of its obligations to the Employee hereunder, the Employee agrees that,
for a period of twelve (12) months from the date of such termination, he will
neither
(i) engage in the Principal Business directly for himself, or in
conjunction with or on behalf of any commercial entity, or
(ii) work as an employee in the Principal Business for any commercial
entity,
where either (A) the Employee's duties in the course of any such activities
would be substantially similar to those he has performed for the Employer
hereunder or (B) the Employee's duties in the course of such activities would
involve disclosure or use of any confidential or proprietary information
relating to the business of the Employer which he may in any way acquire by
reason of his employment by the Employer. The Employee's obligation under this
Section 8 shall extend to all geographical areas of the United States and the
world in which the Employer, as set forth above, carries on business, either
directly or indirectly, including, but not limited to, places where the Employer
has a place of business, has employees or representatives, or has advertised or
sold any products during the time period specified in this section.
(b) The Employee further agrees that for a period of twelve (12)
months from the date of such termination, he will not on behalf of himself or
any commercial competitor of the Employer, compete for, or engage in the
solicitation of, with respect to the Company's products or services, any
commercial customer of the Employer, that he has, during the one year
immediately preceding such termination, solicited or serviced on
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behalf of the Employer or that has been so solicited or serviced, during such
period, by any person under the Employee's supervision.
(c) In the event of any violation of the foregoing provisions of this
Section 8, the Employer shall be entitled, in addition to any other rights or
remedies it may have, to injunctive relief, it being agreed that the damages
which the Employer would sustain upon any such violation are difficult or
impossible to ascertain in advance and that the Employee's violations may cause
irreparable harm to the Employer.
(d) The term "cause" shall mean termination due to an act or acts by
the Employee in willful contravention of the written directions of the Board of
Directors of the Employer.
(S)9. Provisions of General Application.
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(S)9.1. Governing Law. This Agreement and the rights and obligations of
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the parties hereunder shall be construed, interpreted and determined in
accordance with the laws of the Commonwealth of Massachusetts.
(S)9.2. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original and all of which, taken
together, shall constitute one and the same instrument. In making proof of this
Agreement it shall not be necessary to produce or account for more than one such
counterpart.
(S)9.3. Other Agreements. This Agreement represents the entire
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understanding and agreement between the parties as to the subject matter hereof.
No prior, concurrent or subsequent agreement, whether written or oral, shall be
construed to change, amend, alter, repeal or invalidate this Agreement, unless
this Agreement is specifically identified in and made subject to such other
written agreement.
(S)9.4. Amendment. This Agreement may be amended only by a written
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instrument executed in one or more counterparts by the parties hereto.
(S)9.5. Waiver. No consent to or waiver of any breach or default in the
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performance of any obligation hereunder shall be deemed or construed to be a
consent to or waiver of any other breach or default in the performance of any of
the same or any other obligation hereunder. Failure on the part of
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either party to complain of any act or failure to act of the other party or to
declare the other party in default, irrespective of the duration of such
failure, shall not constitute a waiver or rights hereunder and no waiver
hereunder shall be effective unless it is in writing, executed by the party
waiving the breach or default hereunder.
(S)9.6. Headings. The headings of sections and subsections of this
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Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement or to affect the meaning of any of its
provisions.
(S)9.7. Severability. If any provision of this Agreement shall, in whole
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or in part, prove to be invalid for any reason, such invalidity shall affect
only the portion of such provision which shall be invalid, and in all other
respects this Agreement shall stand as if such invalid provision, or the invalid
portion thereof, had not been a part hereof.
(S)9.8. Notices and Other Communications. All notices and other
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communications required hereunder shall be effective if in writing and if
delivered or sent by certified or registered mail, return receipt requested (a)
if to the Employee, at his residence address first set forth above, and (b) if
to the Employer, at 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxx XX, Attention: Chief
Financial Officer, with a copy to Xxxx X. Xxx, Esq., Chu, Ring & Xxxxx LLP, 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other persons or
addresses as the parties hereto may specify by a written notice to the other
from time to time.
IN WITNESS WHEREOF, this Agreement has been executed by the Employer, by
its duly authorized officer, and by the Employee, as of the date first above
written.
KOPIN CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx C.C. Fan
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Xxxxxxx X. Xxxxxxx Xxxx C. C. Fan
Chief Financial Officer
and Treasurer
