EXHIBIT 10.10
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KEY EMPLOYEE AGREEMENT
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To: Albert J. Agbay, Jr.
The undersigned, Dynasys Systems Corporation, a Delaware corporation (the
"Company"), with its principal place of business located at One Research Drive,
Westborough, Massachusetts 01581, hereby agrees with you as follows:
1. Position and Responsibilities.
1.1 You shall serve as President and Chief Executive Officer of the
Company, (or in such other executive capacity as shall be designated by the
Board of Directors (the "Board") or Executive Committee of the Company and
reasonably acceptable to you) and shall perform the duties customarily
associated with such capacity from time to time and at such place or places as
the Chairman of the Board or Executive Committee of the Company shall designate
as appropriate and necessary in connection with such employment.
1.2 You will, to the best of your ability, devote your full time and best
efforts to the performance of your duties hereunder and the business and affairs
of the Company. You agree to perform such executive duties as may be assigned to
you by or on authority of the Company's Chairman of the Board or Executive
Committee 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 with the understanding that such period of availability
shall run conterminously with the one year period of non-competition set forth
in Section 7.1.
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.
1.4 During the term of this Agreement, and after termination of this
Agreement for so long as you shall hold not less than ten percent (10%) of the
issued and outstanding voting stock of the Company, you shall have the right to
designate one (1) member of the Board; and during the term of this Agreement,
subject to the terms and conditions of the Stock Option Plan referred to below,
you shall have the right to designate one (1) member of the Compensation
Committee of the Board.
1.5 Without limiting your authority described in this Agreement, during the
term hereof, you shall have the right (i) to appoint senior executive officers
of the Company, on such terms and conditions as are appropriate in your
reasonable judgment and (ii) to retain
outside legal counsel on behalf of the Company, in each case with the approval
of Palomar, such approval not to be unreasonably withheld or delayed.
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. At the end of the first year of the initial
term and each succeeding year, this Agreement shall be automatically renewed for
successive periods of five (5) years. Your employment with the Company may be
terminated as provided in Sections 2.2 or 2.3.
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 thirty (30) days prior written notice to you upon your death or
disability (disability shall be defined as your inability to perform duties
under this Agreement for an aggregate of ninety (90) days out of any one
hundred eighty (180) day period due to mental or physical disability);
(b) immediately without prior notice to you by the Company for Cause, as
hereinafter defined, provided, however, that prior to any such termination
for Cause, you have had a reasonable opportunity to be heard thereon;
(c) 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;
(d) at any time without Cause, provided the Company shall be obligated to
pay to you upon notice of termination, as severance pay, a lump sum amount
equal to twelve (12) month's Base Salary (as set forth on Exhibit A
attached hereto), less applicable taxes and other required withholdings and
any amounts you may owe to the Company. If, however, a change in control of
the Company should occur causing termination of your employment without
Cause or if there is a substantial change in your duties as set forth
herein which is at the direction of the Company's board of directors and
not consented to by you, then you shall be entitled to receive as severance
pay a lump sum amount equal to twelve (12) months' Base Salary, (as set
forth on Exhibit A attached hereto), or an amount equal to the salary due
to you under the terms of this contract at the time of termination,
whichever is less. For purposes of this Agreement "Change of control" shall
be deemed to be the sale of all or substantially all of the stock or assets
of the Company or the merger of the Company with another entity where the
other entity survives the merger. Palomar Medical Technologies, Inc.,
parent company of the Company, hereby agrees to guarantee payment of the
severance pay described above in this Section 2.2(d).
2.3 You shall have the right to terminate your employment hereunder (a) for
any reason, upon not less than ninety (90) days' prior written notice to the
Company or (b) in the event of a material change, without your consent, in your
duties or responsibilities, upon not less than thirty (30) days' prior written
notice to the Company. Any termination of your employment pursuant to clause (b)
of the preceding sentence shall be deemed to be termination without Cause, and
you shall have the rights set forth in subsection 2.2(d) above. For the purposes
of this Section 2.3 a material change includes, but is not limited to,
relocation of the Company's location at which you are employed to more than one
hundred (100) miles from its present location.
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 willful failure or refusal to comply with
explicit directives of the Board of Directors or Executive Committee or to
render the services required herein; (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) the willful breach or habitual neglect of your
obligations under this Agreement or your duties as an employee of the Company;
(vi) habitual use of drugs or insanity. The existence of Cause for termination
of your employment by the Company shall be subject, upon the written election by
you or the Company, to binding 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.
Further, 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. 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.
2.5 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 the last day of the
month during which your death has occurred.
If your employment is terminated by the Company for any other reason,
pursuant to subsection 2.2(b), (c), or (d) above, all obligations of the Company
(except with respect to amounts and obligations accrued to you prior to the date
of termination) shall cease.
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 "Confidential Information Agreement"). Such Compensation shall
be subject to temporary or permanent reduction by the Board of Directors or
Executive Committee if the Board or Committee shall determine in good faith that
economic conditions so warrant.
4. Other Activities During Employment.
4.1 Except for any outside employments 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, covenantor,
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, its parent
corporation Palomar Medical Technologies, Inc. ("Palomar") or any company owned
or controlled by Palomar, (such firm, corporation, partnership, trust,
association, or other organization being hereinafter referred 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 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
Confidential Information Agreement attached hereto as Exhibit C.
7. Post-Employment Activities.
7.1 For a period of one (1) year after the termination or expiration, for
any reason, of your employment with the Company hereunder, 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
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
Confidential Information Agreement or this Section 7. 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 For a period of one (1) year 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.
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
consultation) so long as you do not thereby violate any term of this Agreement
or the Confidential Information Agreement.
8. Remedies.
Your obligations under the Confidential Information Agreement and the
provisions of Sections 4.2, 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 Confidential Information Agreement or Section 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.
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 the arbitrator shall have sole discretion
with regard to the admissibility of evidence. The parties shall have the right
to be represented by counsel in any arbitration. Judgment upon any award may be
entered in the highest court, state or federal, having jurisdiction. The cost of
such arbitration (but not expenses of counsel, which shall be borne by each
party) shall be borne equally between the parties thereto unless otherwise
determined by such arbitration panel.
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 or 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 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 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 Joseph Caruso, Chief Financial Officer, Palomar Medical
Technologies, Inc., 66 Cherry Hill Drive, Beverly, Massachusetts 01915 and a
copy to Stewart K. Hall, Esq., 24 Lee Street, Suite B-5, Marblehead,
Massachusetts 01945.
13. Waivers.
No waiver of any right under this Agreement shall be deemed effective
unless contained in a writing signed by the party charged with such waiver, and
no waiver of any right arising from any breach or failure to perform shall be
deemed to be a waiver of any future such right or of any other right arising
under this Agreement.
14. Complete Agreement; Amendments.
The foregoing, including Exhibits A, B, C, D and E 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 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.
17. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
18. Certain Covenants of Palomar.
All costs and expenses in connection with the organization of the Company
and the negotiation and preparation of this Agreement, the employment agreements
of Michael Paciello, James Lucivero and Victor Melfa, the Stock Option Plan, the
assumption of the Swan Note and the transactions contemplated hereby, in an
amount reasonably acceptable to Palomar, shall be borne by Palomar.
If you are in agreement with the foregoing, please sign your name below and
also at the bottom of the Confidential Information 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,
DYNASYS SYSTEMS CORPORATION
By: /s/ Steven Georgiev
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Steven Georgiev
Chairman of the Board of Directors
Accepted and Agreed:
/s/ Albert J. Agbay, Jr.
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Albert J. Agbay, Jr.
Agreed, in regard to the guarantee set forth in subsection 2.2(d) and the
covenants set forth in Section 18:
Palomar Medical Technologies, Inc.
By: /s/ Steven Georgiev
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Title: Chairman & CEO
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EXHIBIT A
EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF
Albert J. Agbay, Jr.
1. Term.
The term of the Agreement to which this Exhibit A is annexed and
incorporated shall be for five (5) years, renewing automatically each year
pursuant to Section 2.1 of the Agreement, commencing April ______, 1995, unless
terminated prior thereto in accordance with Section 2.2 or 2.3 of the Agreement.
2. Compensation.
(a) Base Salary. Your initial Base Salary shall be Two Hundred Thousand
($200,000) per annum, during the term of the Agreement, to be paid in
accordance with the Company's payroll policies and to be subject to
increases or deceases thereafter as determined in good faith by the
Company's Board of Directors or Executive Committee.
(b) Bonus. Not less than $25,000 annually, paid calendar quarterly in
arrears, thirty days after the close of the previous calendar quarter based
on revenue and profit goals as set forth below in Schedule I. All future
annual bonus goals are to be determined in good faith by the Board of
Directors.
3. Vacation.
You shall be paid for and entitled to all legal and religious 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 Benefits.
You shall be eligible for participation in any health or other group
insurance plan to be established by or for the benefit of the Company, with
benefits substantially identical to those provided to senior executive officers
of Palomar, 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. Without limiting the foregoing, you shall be entitled
to participate in a 401(k) plan to be established by or for the benefit of the
Company, on terms substantially identical to those provided to senior executive
officers of Palomar. 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. The Company shall provide term life insurance for you in an amount
equal to three times your annual base compensation.
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, lodging, entertainment and meals 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.
In addition, the Company will provide you with a $1,000 monthly car
allowance to cover all car costs.
6. Stock Options.
Upon your execution of this Agreement, you shall be entitled to
receive, in addition to the foregoing compensation, (i) an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended, to purchase 8,600 shares of the Company's common stock, $.01 par
value per share ("Common Stock"), exercisable for a period of ten years at a
price $.01 per share, under the Company's 1995 Stock Option Plan, a copy of
which is attached to this Employment Agreement as Exhibit D (the "Stock Option
Plan"), subject to the terms and conditions set forth in the form of Incentive
Stock Option Agreement attached to this Employment Agreement as Exhibit E (the
"ISO Agreement") and (ii) an additional incentive stock option to purchase 5,160
shares of Common Stock, subject to terms and conditions identical to those set
forth in the preceding clause (i), except that such additional options shall
vest at such time as the Company shall achieve income before income taxes
(determined in accordance with generally accepted accounting principles) in any
fiscal year or portion thereof of not less than $2,000,000. You and the Company
agree that the fair market value of one share of Common Stock on the date hereof
is $.01, which shall be the value attributed to such shares by you and the
Company for financial reporting and tax return purposes.
SCHEDULE I
TO EXHIBIT A
ANNUAL BONUS CALCULATION AND TARGET
OF
Albert J. Agbay
1. Revenue Incentive Compensation.
You shall be entitled to receive Revenue Incentive Compensation at a
rate equal to $100,000 for each $33,000,000 of revenues (determined in
accordance with generally accepted accounting principles) or portion thereof
achieved by the Company in the 12-month period commencing July 1, 1995. By way
of example, if the Company were to achieve $16,500,000 in revenues in the
12-month period commencing July 1, 1995, you shall be entitled to receive
$50,000 in Revenue Incentive Compensation; if the Company were to achieve
$66,000,000 in revenues in such period, you would be entitled to receive
$200,000 in Revenue Incentive Compensation. Revenue goals for subsequent periods
shall be mutually agreed in good faith by you and the Board.
Notwithstanding the foregoing formula, you shall be entitled to receive
not less than $25,000 annually on account of Revenue Incentive Compensation, as
a guaranteed bonus.
2. Profit/Loss Incentive Compensation.
You shall be entitled to receive Profit/Loss Incentive Compensation in
the amount of $50,000 during the first year of this Agreement, in the event the
Company achieves net operating losses of not more than ($300,000) for the period
commencing on July 1, 1995 and ending on December 31, 1995. Profit/Loss
Incentive Compensation shall be paid within 90 days after the end of each fiscal
year of the Company. Profit/Loss goals for fiscal year 1996 and thereafter shall
be mutually agreed in good faith by you and the Board.
EXHIBIT B
OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS
OF
Albert J. Agbay
NONE
EXHIBIT C
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CONFIDENTIAL INFORMATION AGREEMENT
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As of April __, 1995
To: Dynasys Systems Corporation
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 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, its parent corporation Palomar Medical
Technologies, Inc. ("Palomar") or any company owned or controlled by Palomar
relating to products, processes, know-how, techniques, methods, designs,
formulas, test data, customer lists, business plans, marketing plans and
strategies, pricing strategies, or other subject matter pertaining to any
business of the Company or any of its affiliates, which 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 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.
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 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, 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.
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 to the Company.
3.2 For purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, methods, technologies, 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 or on
behalf of the Company.
3.3 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)Edoes 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 or on behalf of the
Company.
4. Disclosure of Inventions.
I agree that in connection with any Invention, I will promptly disclose
such Invention to the 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.
5. Patents and Copyrights: Execution of Documents.
5.1 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.
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.
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 a
separate schedule 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, agree that I will make no claim against the Company with
respect to any such Personal Invention.
7. 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.
8. Trade Secrets of Others.
I represent that my performance of all the terms of this Agreement and as
an employee of the Company does 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.
9. 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.
10. 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 the arbitrator shall have sole discretion
with regard to the admissibility of evidence. The parties shall have the right
to be represented by counsel in any arbitration. Judgment upon any award may be
entered in the highest court, state or federal, having jurisdiction. The cost of
such arbitration (but not expenses of counsel, which shall be borne by each
party) shall be borne equally between the parties thereto unless otherwise
determined by such arbitration panel.
11. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives and successors.
12. Interpretation.
IT IS THE INTENT OF THE PARTIES THAT in case any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. MOREOVER, IT IS THE INTENT OF THE
PARTIES THAT if any 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.
13. Waivers.
No waiver of any right under this Agreement shall be deemed effective
unless contained in a writing signed by the party charged with such waiver, and
no waiver of any
right arising from any breach or failure to perform shall be deemed to be a
waiver of any future such right or of any other right arising under this
Agreement.
14. 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 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.
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.
17. Governing Law.
This Agreement shall be governed and construed in accordance with the laws
of the Commonwealth of Massachusetts.
18. Notices.
All notices, requests, demands and communications which are or may be
required to be given hereunder shall be deemed given if and when sent by
registered or certified mail, return receipt requested, postage prepaid, to the
following addresses.
If to the Company: Dynasys Systems
Corporation
300 West Main Street
Northborough, Massachusetts 01532
With a copy to: Joseph Caruso, Chief Financial Officer
Palomar Medical Technologies, Inc.
66 Cherry Hill Drive
Beverly, Massachusetts 01915
If to Employee: Albert J. Agbay, Jr.
15 Cranbrook Road
Shrewsbury, MA 01545
Executed as of the date first above written.
EMPLOYEE
/s/ Albert J. Agbay, Jr.
-------------------------------
Albert J. Agbay, Jr.
Accepted and Agreed:
DYNASYS SYSTEMS CORPORATION
By: /s/ Steven Georgiev
---------------------------
Steven Georgiev
Chairman of the Board of Directors