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Exhibit 10.10
EXECUTIVE EMPLOYMENT AGREEMENT
between
TRIDENT INTERNATIONAL, INC.
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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AGREEMENT made as of and effective on November 1, 1997 by and between TRIDENT
INTERNATIONAL, INC., a Delaware corporation with its principal offices at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ("the Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
residing at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ("the Executive")
W I T N E S S E T H:
WHEREAS, the Company and the Executive signed an Agreement made as of
August 22, 1994 ("the Original Agreement") defining the relationship between
them; and
WHEREAS, the Executive now holds the position of President and Chief
Executive Officer ("the Position") of the Company; and
WHEREAS, the Original Agreement terminated on November 1, 1997; and
WHEREAS, the Company and the Executive wish to extend the term of the
Original Agreement and to provide for contingencies and other eventualities
specified herein, by entering into this Agreement ("this Agreement");
NOW, THEREFORE, the parties agree as follows:
1. For performance of the Services during the Calendar Year 1997, the Executive
shall be granted Present Options to purchase Ten Thousand Shares of the common
stock of the Company. All terms of the prior options, copies of which were
attached or were to be attached to the Original Agreement as Schedule B-1 and
Schedule B-2 respectively ( the "Prior Options"), shall remain in full force and
effect and shall be incorporated in this Agreement.
2. The Company will retain the Executive in the Position for a period of three
(3) years
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from November 1, 1997, except as otherwise specified in this Agreement, provided
that: (a) A commercially satisfactory number of business performance goals, if
any, established by the Board of Directors of the Company ("the Board"),
(whether in consultation with the Executive or not), in connection with
performance of the Services have, in the Board's judgment, been attained; (b)
the obligations of Confidentiality set forth in Schedule C of this Agreement
have been maintained by the Executive; and (c) notwithstanding the attainment of
goals set forth in subparagraph (a) of this paragraph 2, there are no grounds
for termination of this Agreement by the Company due to the Executive's breach
of the Agreement, or conduct by the Executive demonstrably detrimental to the
Company, its employees or to the full, faithful, and proper performance of the
Services.
3. The Executive will perform the Services subject to the provisions for
compensation set forth in Schedule A attached to and made a part of this
Agreement. It shall be the responsibility of the Chairman and the Board (as may
be allocated between them from time to time in the sole discretion of the Board)
to further define the nature of the Position and Services, and to modify any
such definition, as they deem appropriate. Absent any such further definition,
the Services shall encompass the planning, development, and implementation of
corporate strategy for the Company, in consultation with the Chairman and the
Board, and the management of employees to further such strategies on a
day-to-day basis. No further definition of the Services which is within the
general concept of corporate strategy as set forth in the preceding sentence, or
which includes the function of Chief Executive Officer as that term is
customarily understood, shall be considered to be a revision, modification,
extension, or termination of this Agreement entitling the Executive to greater
or lesser benefits, except as expressly agreed in writing between the Executive
and the Company and attached to this Agreement.
4. During the performance of the Services, and thereafter if the Executive
vacates the Position for any reason (or for no stated reason), the Executive
will not compete against the Company as further defined in Schedule B attached
to and made a part of this Agreement for the periods specified in that Schedule.
If the Executive leaves the Company
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and finds a consulting or employment opportunity during the non-competition
period which may not, in business fact, be competitive with the products or
business of the Company, even though it is so under the definitions in Schedule
B, the Executive may request waiver from the Company of the definitions for that
opportunity. The Company will not unreasonably withhold such a waiver.
5. The Executive shall be entitled to all other benefits generally available to
employees of the Company upon the completion of customary formalities involved
in the application of and for such benefits. The Executive shall further be
entitled to a four week's paid vacation period each year during the term of this
Agreement. The period may be utilized in segments as well as in sequence, but
unused vacation time may not be carried forward. The Executive shall continue to
have the right to participate in the 401(k) Plan of the Company as Plan rules
and applicable law permit.
6. The Board has determined that it is in the best interests of the Company and
its shareholders, in order to assure continuity in the management of the
Company's administration and operations, to enter into this Agreement with the
Executive which is intended to encourage the Executive to continue a career with
the Company and to enable the Executive to work free from distraction in the
face of uncertainty and unsettling circumstances that arise from the possibility
of a Change in Control of the Company.
A. In consideration of the Company's agreement to provide the Executive
with the severance benefits set forth herein, the Executive hereby agrees that,
in the event the Board determines that a potential change in control of the
Company has occurred (such determination to be based upon the provisions set
forth below in this paragraph 6, and constituting a "Change in Control" for
purposes of this Agreement), the Executive will continue in the employ of the
Company with continuing responsibility for the business operations for which the
Services are presently rendered by the Executive (the "Position"), at a
compensation level at least equivalent to that received by the Executive at the
time of Change in Control.
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B. In consideration thereof, the Company agrees, that in the event of
Involuntary Termination, it shall provide the following severance benefits:
(i) The present value equivalent (on a ten percent discounted basis)
of: (a) salary continuation for 3 years in an annual amount equal to the Base
Salary in effect on the date of Involuntary Termination; (b) the ordinary and
customary additional elements of Compensation (except for options contemplated
in subparagraph 6.B. (iii)) attendant to the Position as set forth in Schedule
A.
(ii) Coverage for 3 years under all Company perquisites and benefit
plans including: 401k savings plan; medical, life and disability insurance
plans; use of a Company automobile or a leased vehicle equivalent to such
automobile; and the like, in the same manner as if the Executive were an active
employee.
(iii) An immediate right to exercise any outstanding and unexercised
stock options previously granted under any Company stock option plans, including
any such options not otherwise vested under the terms of the plan or grant,
unless provision is made in connection with such transaction for the assumption
of options theretofore granted, or the substitution for such options or new
options of the successor entity or parent thereof, with appropriate adjustment
as to the number and kind of shares and the per share exercise prices,
specifically including but not limited to the Present Options and the Prior
Options.
(iv) Employment search assistance through a professional out placement
organization and office and secretarial support for up to one year.
C. As used herein, Involuntary Termination shall mean any termination
of the Executive's employment by the Company, its successor or one of its
subsidiaries, within two years following a Change in Control of the Company;
provided, however, such term shall not include a termination for serious,
willful misconduct in respect of the Executive's
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obligations to the Company, its successors or its subsidiaries, including
commission of a felony or perpetration of a common law fraud which has or is
likely to result in material economic damage to the Company or any of its
subsidiaries, or failure to comply with a specific directive given to the
Executive by the Board.
D. In addition to actual termination of employment, the following shall
be deemed an Involuntary Termination:
(i) A reduction in Base Salary, or the ordinary and customary
additional elements of Compensation attendant to the Position as set forth in
Schedule A, or both, other than in connection with an across-the-board reduction
similarly affecting all executives of the Company, or a material and objectively
demonstrable failure of the Executive to meet the performance goals contemplated
by paragraph 2 as in effect immediately prior to a Change in Control of the
Company;
(ii) A material reduction in the functions, duties or responsibilities
of the Position;
(iii) A reassignment to another geographic location more than 50 miles
from the Executive's current place of employment;
(iv) A liquidation, dissolution, consolidation or merger of the
Company, or transfer of all or substantially all of its assets, unless a
successor assumes the Company's obligations under this Agreement; or
(v) A breach of this Agreement by the Company.
E. Notwithstanding the foregoing, failure to object in writing to the
changes listed above within 180 days of any such change following a Change in
Control of the Company shall constitute a waiver of such change being deemed an
Involuntary Termination.
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F. For the purposes of this Agreement, the term "Change of Control of
the Company" shall mean the happening of any one of the following:
(i) The acquisition by any party or related or affiliated parties or
parties acting as a group of the beneficial ownership of 50 percent or more of
the voting shares of the Company;
(ii) The occurrence of a transaction requiring shareholders' approval
for the acquisition of the Company through purchase of stock or assets; or by
merger or pooling of interests; or by any other lawful means customary at the
time to effect a substantial change in the controlling ownership of the Company;
(iii) The election, during any period of 24 months or less, of 30
percent or more of members of the Board of Directors without the approval of a
majority of the Board members as constituted at the beginning of the period.
(iv) The assignment by the Company of its rights under this Agreement
in a manner which substantially alters the provisions of this Agreement for the
benefit the Executive in case of a Change of Control.
G. The Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
Agreement be reduced by any compensation earned by the Executive as a result of
employment by another employer or by retirement benefits after termination, or
otherwise.
7. The provisions of this Agreement shall be enforceable notwithstanding the
existence of any claim or cause of action of the Executive against The Company
whether predicated on this Agreement or otherwise.
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8. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery or three (3) days after
mailing if mailed by registered or certified mail with postage and fees prepaid,
addressed to the other party at the address first recited in this Agreement, or
at such other address as such party may designate.
9. This Agreement is entered into by the Company in The State of Connecticut and
shall be governed by and construed in accordance with the internal laws and
decisions of Connecticut. All provisions of this Agreement are intended to be
interpreted and construed in a manner to make such provisions valid, legal, and
enforceable. The invalidity or unenforceability of any phrase or provision shall
in no way affect the validity or enforceability of any other portion of this
Agreement, which shall be deemed modified, restricted, or omitted to the extent
necessary to make the Agreement enforceable.
10. The Company may assign its rights under this Agreement and this Agreement
shall inure to the benefit of the successors and assigns of the Company and,
subject to the restrictions on transfer herein set forth, be binding upon the
Executive, and the heirs, executors, administrators, guardians, and successors
of the Executive, except that, in the case of the death of the executive, the
Executive's estate shall only be entitled to the amount which would be due the
Executive pursuant to paragraph 3 of Schedule A of this Agreement, together with
the right to immediate exercise of any Options (whether Present Options or Prior
Options) as if such Options had vested in the Executive at death, and any
vacation pay rights accrued during the year of death. Since the Services are
personal to the Executive, the Executive may not assign rights or obligations
under this Agreement.
11. Any dispute or controversy with respect to this Agreement shall be settled
by arbitration in accordance with the rules of the American Arbitration
Association then in effect. In the event of any such dispute, a party prevailing
with respect to a claim shall be reimbursed by the other party for all legal
fees and expenses with respect such claim, as delineated by the arbitrator or
arbitrators.
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12. This Agreement represents the entire understanding of the parties with
respect to the specific subject matter of this Agreement and supersedes all
previous understandings, written or oral between the parties with respect to
that subject matter. This Agreement may only be amended with the written consent
of the parties or their successors or, where permitted, assigns, and no oral
waiver or amendment shall be effective under any circumstances whatsoever.
Failure by The Company to insist upon The Executive's compliance with any
provision in this Agreement shall not be deemed a waiver of such provision.
13. The Company may, upon termination of this Agreement, notify any person,
natural or legal, engaging the services of the Executive after such termination
of the existence, provisions, and binding nature of the confidentiality and
non-competition schedules of the Agreement.
IN WITNESS WHEREOF, the Company and the Executive have signed this Agreement
as indicated.
TRIDENT INTERNATIONAL, INC.
By /s/ R. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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R. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Chairman ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and CEO
Date: January 8, 1998 Date: January 5, 1998
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Witness: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Witness: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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SCHEDULE A
1. Base Salary shall be $160,000 per annum beginning with the January 1, 1998
Calendar Year of the Company.
2. As adjusted from year to year by the Chairman and the Compensation Committee
of the Board, Compensation shall include, in addition to Base Salary, the
following ordinary and customary elements:
(a) all exercisable options, including maintenance of Prior Options and Present
Options;
(b) bonus shall be deemed to equal fifty percent (50%) of Base Salary.
(c) earned component of any system then in effect for the pertinent class of
employee which provides such employee with an interest in a share of profit or
incremental gain in sales, income, or profit of the Company.
(d) any other benefits contemplated by paragraph 5 of this Agreement to which
the Executive is entitled.
3. In consideration for the Executive's continuing adherence to the obligations
of confidentiality and non-competition contained in the Agreement upon the
expiry or termination of such Agreement, or upon the leaving by the Executive of
the employ of the Company, the Company will pay to the Executive an amount
equivalent to one year of Compensation, determined at the time of expiry,
termination, or leaving, within thirty (30) days of the date of such expiry,
termination, or leaving.
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SCHEDULE B
NON-COMPETITION
A. Both during performance of the Services and for a period of one (1) year
after such performance terminates for any reason (with or without the statement
or expression of a reason), the Executive shall not, either directly or
indirectly: (1) solicit, service, obtain, or accept orders for products or
services competitive with those of the Company from any of the Company's actual
or prospective customers; (2) commence, engage in, or participate in any
business competitive with that of the Company within the geographic area in
which the Company does business, or engage in or provide technical or marketing
consulting with or to such a competitive business; (3) solicit, divert, take
away, interfere with, or attempt to induce any employee or agent of the Company
to leave such person's employ or other relationship with the Company in order to
participate in any business competitive with the Company; or (4) use any
Confidential Information or Invention in connection with such competitive
business. During performance of the Services for the Company, the Executive
shall not take any steps or make any plans whatsoever to commence or join any
person or entity in any activity in competition with the Company.
B. A product competitive with those of the Company shall mean any device, part,
or unit involved in the printing on a surface of text, number, character,
design, symbol, word, or other image involving ink or colorant in any form which
is expelled or extracted from an orifice or an aperture and propelled to a
receiving surface without contact between the device and the receiving surface.
A business or activity competitive or in competition with that of the Company or
the Services shall be the design, manufacture, assembly, use, sale, marketing,
purchase, installation, or repair of such a product and any management of such
business or activity.
C. The Executive acknowledges that disclosure of Confidential Information or
breach of the provisions contained in section A of this Schedule B may give rise
to irreparable injury to the Company or to the owner of such Confidential
Information which may be inadequately compensable in damages. Accordingly, the
Company or such owner may seek and obtain injunctive relief against the breach
or threatened breach of the foregoing undertakings, in addition to any other
legal remedies which may be available. The Executive expressly acknowledges
that, if this Agreement is terminated: the provisions of Schedule A will protect
the ability of the Executive to maintain a suitable standard of living while
refraining from competitive activity; the covenants contained herein are
necessary for the protection of the Company's legitimate business interests; and
such covenants are reasonable in scope and content.
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SCHEDULE C
CONFIDENTIAL INFORMATION
A. The Executive recognizes that the Company is engaged in a continuous program
of research, development, and production respecting its business, present and
future, including fields generally related to its business and that the
Executive and/or the Company possess and will possess in the future confidential
information that has been created, discovered, or developed by the Executive or
by the Company (including, without limitation, information created by,
discovered or developed by the Executive, or made known to the Executive by the
Company during the period of or arising out of the Executive's performance of
the Services) and/or confidential information which has been assigned or
otherwise conveyed to the Company and is of commercial or other value to the
business in which the Company is engaged ("Confidential Information"). By way of
illustration, but not limitation, Confidential Information includes trade
secrets, processes, formulae, data and know-how, software, documentation,
program files, flow/charts, drawings, techniques, source and object code,
standards, specifications improvements, inventions, techniques, customer
information, accounting data, statistical data, research projects, development
and marketing plans, strategies, forecasts, computer programs, and customer
lists.
B. The Executive understands that acceptance of the Position and the performance
of the Services creates a relationship of confidence and trust between the
Executive and the Company with respect to any Confidential Information which
pertains to the business of the Company, or to the business of any actual or
potential client or customer of the Company, and which may be made known to the
Executive by the Company, or by any client or customer of the Company, or
learned or developed by the Executive during the period of performance of the
Services.
C. The Executive, except as directed by the Company or as to the subordinates of
the Executive in the ordinary course of business, will not at any time during or
after the term of this Agreement disclose any Confidential Information to any
person whatsoever, or permit any person whatsoever to examine, make copies of,
electronically store, or otherwise reproduce any reports, source code, or
documents prepared by, in the possession of, under the control of, or otherwise
available to the Executive by reason of the performance of the duties of the
Position, or otherwise. In the case of subordinates, any disclosure as
contemplated by this paragraph C shall be made in confidence and the Executive
shall use best efforts to assure that such subordinates are bound under and will
maintain an obligation of confidentiality substantially the same as that
contained in this Agreement.
D. (1) All Confidential Information shall be the sole and exclusive property of
the Company and its assigns, and the Company and its assigns shall be the sole
owner of all trademarks, trade names, service marks, trade dress, copyrights,
patents, and other rights ("Intellectual Property Rights") developed from or
used in connection with such Confidential
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Information. The Executive hereby assigns to the Company any rights, including
Intellectual Property Rights, that the Executive may have or acquire in such
Confidential Information. At all times, both during the Executive's performance
of the Services and after the termination of the services represented by such
performance, the Executive will keep in confidence and trust all Confidential
Information, and the Executive will not use or disclose any Confidential
Information or anything relating to it without the written consent of the
Company, except as may be necessary in the ordinary course of performing the
Services.
(2) All documents, records, apparatus, equipment, and other physical
property, whether or not pertaining to Confidential Information, furnished to
the Executive by the Company or produced by the Executive or others in
connection with the Executive's performance of the Services shall be and remain
the sole property of the Company and shall be returned to the Company
immediately as and when requested by the Company. Even if the Company does not
so request, the Executive shall return and deliver all such property upon
termination of the Executive's services for the Company for any reason, and the
Executive will not retain any such property or any reproduction of such
property, regardless of the manner by which such reproduction is effected, upon
such termination. This paragraph shall not be deemed to apply to any physical
property which is clearly and unambiguously a gift to the Executive and is
expressly so stated to be a gift at the time it is furnished to the Executive.
(3) The Executive will promptly disclose to the Company or any persons
designated by it, all improvements, inventions, formulas, ideas, designs,
concepts, processes, techniques, know-how, software programs, information, and
data ("Inventions"), whether or not perfectable as an Intellectual Property
Right, made or conceived or reduced to practice or learned by the Executive,
either alone or jointly with others, during the term of the Executive's
performance of the Services. The Company shall receive such disclosures in
confidence, and the disclosure, regardless of how made and whether or not so
identified, shall be deemed to be Confidential Information and the creation of
Confidential Information under the terms of this Agreement.
(4) All Inventions that the Executive develops (in whole or in part,
either alone or jointly with others) and (i) which arise out of use of
equipment, supplies, facilities, or Confidential Information of the Company or
(ii) were developed in whole or in part during the performance of the Services
for which the Executive was compensated by the Company or (iii) which relate to
the business of the Company or to its actual or demonstrably anticipated
research and development or (iv) which result, in whole or in part, from work
performed by the Executive for the Company shall be the sole property of the
Company and its assigns, and the Company and its assigns shall be the sole
owner(s) of all Intellectual Property Rights and other rights in connection with
those Inventions.
(5) The Executive by execution of this Agreement hereby expressly
assigns to the Company any rights, including Intellectual Property Rights, the
Executive may have or acquire in such Inventions. The Executive will, regarding
all such Inventions, assist The
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Company in every proper way (but at the Company's expense) to obtain and from
time to time enforce Intellectual Property Rights on said Inventions in any and
all countries. To that end the Executive will execute all documents for use in
applying for and obtaining and enforcing such Intellectual Property Rights as
the Company may desire, together with any assignments of Intellectual Property
Rights to the Company or persons designated by it.
(6) The Executive's obligation to assist the Company in obtaining and
enforcing Intellectual Property Rights for such Inventions in any and all
countries shall continue beyond the termination of The Executive's performance
of the Services. The Company shall, however, compensate the Executive at a
reasonable rate, which shall in no case be less than that calculated by
reference to the Executive's Base Salary as defined in Schedule D of this
Agreement, after such termination for time actually spent by the Executive at
the Company's request on such assistance. In the event that the Company is
unable for any reason whatsoever to secure the Executive's signature to any
lawful and necessary document required to apply for or execute any Intellectual
Property Rights or other application with respect to such an Invention
(including renewals, extensions, continuations, divisions, or continuations in
part of the Invention), the Executive hereby irrevocably designates and appoints
▇▇▇▇▇▇ ▇▇▇▇▇▇, Esquire of ▇▇▇▇▇▇▇▇, Washburn, Kurtz, MacKiewicz, Norris, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as the Executive's agents and
attorneys-in-fact to act for and in the Executive's behalf and to execute and
file any such application and to do all other lawfully permitted acts to further
the prosecution of the application with the same legal force and effect as if
executed by the Executive.
(7) As a matter of record, the Executive attaches to this Agreement a
complete list of all inventions or improvements relevant to the subject matter
of the Executive's performance of Services that have been made or conceived or
first reduced to practice by the Executive alone or jointly with others prior to
the date of this Agreement or outside its scope and that the Executive desires
to remove from the operation of this Agreement.
(8) The Executive represents that performance of all the terms of this
Agreement will not breach any agreement to keep in confidence proprietary
information acquired by the Executive in confidence or in trust prior to
performance of the Services. The Executive has not entered into, and will not
enter into, any agreement whether written or oral in conflict with this
Agreement.
(9) Nothing contained in this Schedule is intended to limit the
Executive's professional development, either during or subsequent to employment
by the Company or to prohibit the Executive the normal application of skills
acquired or improved during employment consistent with the protection of the
Confidential Information.