EXHIBIT 10j
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FORM OF
KEY EMPLOYEE AGREEMENT
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To: William Blocher, Ph.D.
7 Redgate Lane As of October 12, 1996
Amherst, NH 03031
The undersigned, WebSecure, Inc., a Delaware corporation (the
"Company"), hereby agrees with you as follows:
1. POSITION AND RESPONSIBILITIES.
1.1 You shall serve as Chief Technical Officer for the Company
reporting to the president, and shall perform the duties customarily associated
with such capacity from time to time and at 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 devote at least forty hours
per week to the business of the Company. You agree to perform such executive
duties as may be assigned to you by or on authority of the Company's Board of
Directors from time to time. After receipt of notice of termination of your
employment hereunder pursuant to Section 2, you shall continue to be available
to the Company for up to twenty (20) hours per week for a period of up to four
(4) weeks to assist in any necessary transition, with your compensation for that
period based on your full salary at the time of termination.
1.3 You will duly, punctually and faithfully perform and
observe any and all rules and regulations which the Company may now or shall
hereafter establish governing the conduct of its business.
2. TERM OF EMPLOYMENT.
2.1 The term of this Agreement shall be for the period of
years set forth on Exhibit A annexed hereto commencing with the effective date
hereof. Thereafter, this Agreement shall be automatically renewed for successive
periods of one (1) year, unless the Company or you shall give the other not less
than three (3) months prior written notice of non-renewal. Your employment with
the Company may be terminated at any time only as provided in Section 2.2.
2.2 The Company shall have the right, on written notice to
you, to terminate your employment:
(a) immediately at any time for cause; or at any
time without cause, or by not renewing this Agreement pursuant to Section 2.1
hereof, provided the Company shall be obligated to pay you as severance pay an
amount equal to six (6) months of the annual Base Salary (as set forth on
Exhibit A hereto, as adjusted by periodic increases, if any),less applicable
taxes and other required withholdings and any amounts you may owe to the Company
and provided further that the Company shall continue in full force and effect
for a period of six (6) months all health and insurance benefits that you
enjoyed at the time of your termination. All unvested stock options would vest
on the date of your termination.
2.3 For purposes of Section 2.2, the term "cause" shall mean:
(a) Your intentional failure or refusal to perform
the services specified herein, or to carry out
any reasonable and lawful directions of the
Company with respect to the services to be
rendered or the manner of rendering such services
by you; provided, however, that (i) such failure
or refusal is material and repetitive, and (ii)
you have been given reasonable notice and
explanation of each refusal or failure, and
reasonable opportunity to cure such refusal or
failure, and no cure has been effected within a
reasonable time after notice;
(b) conviction of a felony;
(c) fraud or embezzlement involving the assets of the
Company, its customers, suppliers or affiliates;
(d) inability for a continuous period of at least one
hundred twenty (120) days to perform duties
hereunder due to a physical or mental disability;
or
(e) breach of any term of this Agreement other than
as noted in (a) above, provided, however, that
prior to any such termination, you have had a
reasonable opportunity to be heard thereon.
Further, any dispute, controversy, or claim
arising out of, in connection with, or in
relation to this definition of "cause" shall be
settled
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by arbitration in Boston, Massachusetts, pursuant
to the rules then in effect of the American
Arbitration Association. Any award or
determination shall be final, binding, and
conclusive upon the parties, and a judgment
rendered may be entered in any court having
jurisdiction thereof.
2.4 If at any time (i) the Company or a substantial portion of
the Company is acquired without the approval of the Board of Directors, (ii)
your employment is terminated without cause, (iii) your salary is reduced
without your consent, (iv) there is a substantial change in your position or
authority within the Company without your consent, or (v) there is a change of
your principal place of employment from the greater Boston, Massachusetts area
without your consent, the Company shall be obligated to pay to you within thirty
(30) days of the date of your termination, as severance pay 150% of your annual
base salary for six (6) months (as set forth on Exhibit A hereto), less
applicable taxes, other required withholdings and any amounts you may owe to the
Company and provided further that the Company shall continue in full force and
effect for a period of six (6) months all health and insurance benefits that you
enjoyed at the time of your termination.
2.5 You shall have the right to terminate this Agreement for
any reason upon not less than sixty (60) days prior written notice to the
Company.
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 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 employments and directorships
currently held by you as listed on Exhibit B hereto, and except with the prior
written consent of the Company's Board of Directors, 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,
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coventurer, 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 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"). Except as may be shown on
Exhibit C hereto, you hereby represent that you are not engaged in any of the
foregoing capacities (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 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.
7. POST-EMPLOYMENT ACTIVITIES.
7.1 For a period of six months after your termination with
cause or the expiration of your employment with the Company hereunder, absent
the Company's prior written approval, you will not directly or indirectly engage
in activities similar or reasonably related to those in which you shall have
engaged hereunder during the six months immediately preceding termination or
expiration, nor render services similar or reasonably related to those which you
shall have rendered hereunder during such six months 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
any
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line of business engaged in or under development by the Company. Nor shall you
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. As used in
this Section 7.1, the term "any line of business engaged in or under 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
consulting arrangement.
7.2 For a period of six months after the termination of your
employment with the Company, the provisions of Section 4.2 shall be applicable
to you and you shall comply therewith. As applied to such one (1) year
post-employment period, the term "any other line of business engaged in or under
development by the Company," as used in Section 4.2, shall be applied as at the
date of termination of your employment with the Company or, if later, as at the
date of termination of any post-employment consulting arrangement with the
Company.
7.3 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 consulting arrangement) so long as you do not thereby violate
any term of the Proprietary Information and Inventions Agreement.
8. REMEDIES. Your obligations under the Proprietary Information and
Inventions Agreement and the provisions of Sections 6, 7, 8 and 9 of this
Agreement (as modified by Section 10, 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 Section 7 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.
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.
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10. 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 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 limiting and reducing it as determined by a court of competent
jurisdiction, so as to be enforceable to the extent compatible with applicable
law.
11. 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. The date of personal delivery or the date of mailing any notice
under this Section 11 shall be deemed to be the date of delivery thereof.
12. WAIVERS. 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.
13. COMPLETE AGREEMENT; AMENDMENTS. The foregoing including Exhibits A,
B and C 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 or waiver by the
Company of any right hereunder shall be effective only if evidenced by a written
instrument executed by the parties hereto, upon authorization of the Company's
Board of Directors.
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 of this Agreement.
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.
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16. GOVERNING LAW. This Agreement shall be governed by and construed
under Massachusetts law.
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 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,
WebSecure, Inc.
By:
-----------------------------
Robert Kuzara, President
Accepted and Agreed:
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William Blocher, Ph.D.
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EXHIBIT A
EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF WILLIAM BLOCHER, PH.D.
1. TERM. The term of the Agreement to which this Exhibit A is annexed and
incorporated shall be until October 1, 1999
2. COMPENSATION.
(a) Base Salary. Your Base Salary shall be $102,000.00 per
annum, payable in accordance with the Company's payroll
policies.
(b) Bonuses. You shall be entitled to such bonuses as may be
determined by the Company's Board of Directors.
(c) Performance Reviews. Written reviews will be performed
annually on your hire date anniversary . Salary increases will
be determined at the discretion of the compensation committee
of the Board of Directors.
3. STOCK OPTIONS. You will be offered 50,000 Stock Options at $4.00 per
share to be vested over three (3) years with the first vesting to be
April 1, 1997.
4. VACATION. You shall be entitled to all legal and religious holidays,
and four (4) weeks paid vacation per annum. You will be allowed to
carry over unused vacation entitlement to future periods or at your
option receive compensation equivalent to the unused vacation
entitlement at your then current salary.
5. 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 eligible to receive any other benefits which are provided to
any of the executive officers of the Company.
6. SICK LEAVE. You shall be entitled to 5 (five) sick days per year. Sick
days will be allowed to carry over to future periods if unused. No more
than 65 days will be allowed to accrue.
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EXHIBIT B
OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS OF
WILLIAM BLOCHER, PH.D.
1. BBC Computers, Inc.
2. BBC Stores, Inc.
3. Presage Corp.
4. Harvard University
5. Boston University
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EXHIBIT C
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PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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To: WebSecure, Inc. As of October 1, 1996
1711 Broadway
Corporate Center North
Saugus, Massachusetts 01906
The undersigned, in consideration of and as a condition of my
employment or continued employment by you and/or by companies which you own,
control, or are affiliated with or their successors in business (collectively,
the "Company"), hereby agrees as follows:
1. CONFIDENTIALITY. I 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 my
employment, any Inventions (as hereinafter defined), trade secrets, confidential
information, knowledge, data or other information of the Company relating to
products, processes, know-how, 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 I may produce, obtain, or otherwise acquire during the course
of my employment, except as herein provided. I 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.
2. CONFLICTING EMPLOYMENT; RETURN OF CONFIDENTIAL MATERIAL. I agree
that during my employment with the Company I will not engage in any other
employment, occupation, consulting or other activity relating to the business in
which the Company is now or may hereafter become engaged, or which would
otherwise conflict with my obligations
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to the Company. In the event my employment with the Company terminates for any
reason whatsoever, I agree to promptly surrender and deliver to the Company all
records, materials, equipment, drawings, documents and data 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.
3. ASSIGNMENT OF INVENTIONS.
3.1 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.
3.2 For purposes of this Agreement, "Inventions" shall mean
all discoveries, processes, designs, technologies, devices, or improvements in
any of the foregoing or other ideas, whether or not patentable 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.
3.3 Any discovery, process, design, technology, device, or
improvement in any of the foregoing or other ideas, whether or not patentable
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's equipment, supplies, facilities, or trade secret information
("Personal Invention") is excluded from this Agreement provided such Personal
Invention (a) does not relate to the actual or demonstrably anticipated
business, research and development of the Company, and (b) does not result,
directly or indirectly, from any work performed by me for the Company.
4. DISCLOSURE OF INVENTIONS. I agree that in connection with any
Invention, I will promptly disclose such Invention to my immediate superior at
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.
5. PATENTS AND COPYRIGHTS; EXECUTION OF DOCUMENTS.
5.1 Upon request, I agree to assist the Company or its nominee
(at its
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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 patents 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.
5.2 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.
6. MAINTENANCE OF RECORDS. I agree to keep and maintain adequate and
current written records of all Inventions made by me (in the form of notes,
sketches, drawings and other records as may be specified by the Company), which
records shall be available to and remain the sole property of the Company at all
times.
7. PRIOR INVENTIONS. 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 or with 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.
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9. TRADE SECRETS OF OTHERS. I represent that my performance of all the
terms of this Agreement and my position as an employee of the Company do not and
will not breach any agreement to keep confidential proprietary information,
knowledge or data acquired by me in confidence or in trust prior to my
employment with the Company, and I will not disclose to the Company, or induce
the Company to use, any confidential or proprietary information or material
belonging to any previous employer or others. I agree not to enter into any
agreement either written or oral in conflict herewith.
10. MODIFICATION. I agree that any subsequent change or changes in my
employment duties, salary or compensation or, if applicable, in any Employment
Agreement between the Company and me, shall not affect the validity or scope of
this Agreement.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon my
heirs, executors, administrators or other legal representatives and is for the
benefit of the Company, its successors and assigns.
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 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 limiting and reducing it in accordance with a judgment of a court
of competent jurisdiction, so as to be enforceable to the extent compatible with
applicable law.
13. WAIVERS. If either party should 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.
14. COMPLETE AGREEMENT, AMENDMENTS. I acknowledge receipt of this
Agreement, and agree that with respect to the subject matter thereof it is my
entire agreement with the Company, 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 or
waiver by either party of any right hereunder shall be effective only if
evidenced by a written instrument executed by the parties hereto, and, in the
case of the Company, upon written authorization of the Company's Board of
Directors.
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15. 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 thereof.
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 and construed under
Massachusetts law.
---------------------------------
William Blocher, Ph.D.
Accepted and Agreed:
WebSecure, Inc.
By:
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Robert Kuzara, President
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SCHEDULE A
LIST OF PRIOR INVENTIONS
Identifying Number of patents and patent applications
Title Date or Brief Description of unpatented personal invention
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Copyrighted software
Software programs under development
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