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EXHIBIT 10.2
IRIS INTERNATIONAL, INC
KEY EMPLOYEE AGREEMENT
FOR
ROBERT MELLO
IRIS INTERNATIONAL, INC., a Delaware corporation (the
"COMPANY"), agrees with
you as follows:
1. POSITION AND RESPONSIBILITIES.
1.1 The Company will continue to employ you and you shall
serve in an executive capacity as CORPORATE VICE PRESIDENT
AND
PRESIDENT OF STATSPIN INC. (DBA IRIS SAMPLE PROCESSING), and
perform
the duties customarily associated with such capacity from time
to time
as the Company shall reasonably designate or as shall be
reasonably
appropriate and necessary in connection with such
employment.
1.2 Subject to SECTION 4 below, 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
will report to the Company's Chief Executive Officer
("CEO").
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,
except
to the extent that such rules and regulations may be
inconsistent with
your executive position.
2. TERM OF EMPLOYMENT; TERMINATION.
2.1 Unless otherwise mutually agreed in writing, this
Agreement and your employment by the Company pursuant to this
Agreement
shall be terminated on the earliest of:
(a) your death, or any illness, disability or other
incapacity that renders you physically unable regularly to
perform your duties hereunder for a period in excess of one
hundred twenty (120) consecutive days or more than one
hundred
eighty (180) days in any consecutive twelve (12) month
period;
(b) thirty (30) days after you, for any reason, give
written notice to the Company of your resignation; or
(c) immediately if the Company, with or without
cause, gives written notice to you of your termination.
2.2 The determination regarding whether you are physically
unable regularly to perform your duties (as described in
SECTION
2.1(A)) shall be made by the Board of Directors.
2.3 Any notice required pursuant to this SECTION 2 shall be
given in accordance with the provisions of SECTION 9 hereof.
The
exercise of either party's right to terminate this Agreement
pursuant
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to SECTIONS 2.1(B) or (C) is not exclusive and shall not effect
either
party's right to seek remedies for the other party's breach, if
any,
giving rise to such termination.
2.4 You may be terminated with or without cause. If you are
terminated without cause, you will be entitled to certain
severance
benefits as described in this Agreement. You shall be deemed
terminated
"FOR CAUSE" if, in the reasonable determination of the Company,
you (a)
commit an act that is fraudulent, dishonest or a material breach
of the
Company's policies, including wrongful disclosure of any trade
secrets
or other confidential information of the Company, or material
breach of
SECTION 4 of this Agreement or any material provision of the
Employee
Confidentiality Agreement (as defined in SECTION 5), (b) are
convicted
of a felony under federal, state, or local law applicable to
the
Company or (c) intentionally refuse, without proper cause,
to
substantially perform duties after a demand for such performance
has
been delivered in writing by the Company's Chief Executive
Officer or
the Board of Directors, which notice shall specify the alleged
instance
of breach, and shall provide you with reasonable time in which
to
remedy such breach.
3. COMPENSATION; BENEFITS; AND INVESTMENT RIGHTS.
3.1 The Company shall pay to you for the services to be
rendered hereunder a base salary at an annual rate of
$225,000.00
subject to increases in accordance with the policies of the
Company, as
determined by its Board of Directors, in force from time to
time,
payable in installments in accordance with Company policy. You
shall
also be entitled to all rights and benefits for which you shall
be
eligible under bonus, pension, group insurance, long-term
disability,
life insurance, profit-sharing and other Company benefits which
may be
in force from time to time and provided specifically to you or
for the
Company's executive officers generally.
3.2 During your employment with the Company, you will be
eligible for option and/or equity awards, commensurate with
other
senior executive officers, based on your performance as
determined by
the CEO and the Compensation Committee of the Board of
Directors.
3.3 You shall be eligible to participate in the Company's
ESPP
Program as in effect from time to time. The ESPP Program
currently
provides that employees may purchase common stock of the Company
at a
15% discount from the market price in an aggregate amount up to
15% of
your total cash compensation.
3.4 You shall also be eligible for an annual bonus to be
determined by the CEO and Compensation Committee of the Board
of
Directors in accordance with the Company's bonus program for
executive
officers. The bonus program provides for cash and
stock-based
compensation, with the stock-based compensation comprised of
incentive
stock options and restricted stock awards.
3.5 You shall be entitled to four (4) weeks of paid vacation
per year to be taken at such time as will not interfere with
the
performance of your duties. You will also be entitled to illness
days
during the term of this Agreement consistent with the
Company's
standard practice for its employees generally as in effect from
time to
time.
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3.6 In the event that (i) you are terminated without cause
at
any time, pursuant to SECTION 2.1(C) hereof and (ii) you deliver
to the
Company a signed settlement agreement and general release in the
form
attached hereto as EXHIBIT A (the "RELEASE") and satisfy all
conditions
to make the Release effective, the Company shall pay you the
following:
(a) an amount that does not exceed two times the maximum amount
that
may be taken into account under a qualified plan pursuant to
section
401(a)(17) of the Internal Revenue Code (the "CODE") for the
year in
which such termination occurs; and (b) an amount that is the
difference
between twelve (12) months of base salary (based on the monthly
rate of
base salary in effect immediately prior to such termination) and
the
amount determined under subsection (a), above; PROVIDED,
HOWEVER, that
in no event shall the sum of the amounts computed under
subsections (a)
and (b), above, exceed twelve (12) months of base salary (based
on the
monthly rate of base salary in effect immediately prior to
such
termination). At the choice of the Company, payment of the
amount
computed under subsection (a) may be made in the form of a lump
sum
payment within ten (10) days of the termination or through
regular
payroll payments in equal amounts for a period that begins in
the month
of termination and ends no later than twelve (12) months after
the
month of termination, and payment of the amount computed
under
subsection (b) may be made in the form of a lump sum payment
within ten
(10) days of the termination or through regular payroll payments
in
equal amounts for a period that begins in the month of
termination and
ends no later than the 15th day of the third month of the
calendar year
following the year in which you are terminated. The parties
intend that
the compensation payable pursuant to subsection (b) above shall
be
treated as a short-term deferral as that term is used in section
409A
of the Code and the regulations promulgated thereunder
(collectively,
"SECTION 409A"). The parties intend that each of the payments
payable
pursuant to (a) above shall be treated as a separate payment
for
purposes of section 409A and excluded from the definition of
"deferred
compensation" pursuant to the regulations promulgated
thereunder
regarding separation pay payable upon an involuntary separation
from
service. Termination without cause shall include
"constructive
termination" in the event of (i) a material diminution of
your
authority, duties or responsibilities as described in SECTION 1
above,
(ii) a material breach of this Agreement by the Company, or
(iii) the
termination by you of your employment with the Company at any
time
within 30 days following the relocation of your primary office
to a
location more than 60 miles from your current office in
Westwood,
Massachusetts; provided that before any constructive
termination
occurs, you first give the Company notice of the event or
other
circumstances giving rise to such constructive termination
within 90
days of the occurrence thereof and afford the Company the right
to cure
the event or other circumstances giving rise to such
constructive
termination for a period of 30 days following the Company's
receipt of
such notice.
4. OTHER ACTIVITIES DURING EMPLOYMENT.
4.1 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 ones in which you are a passive investor
in
non-competitive businesses. You may engage in civic and
not-for-profit
activities so long as such activities do not materially
interfere with
the performance of your duties hereunder.
4.2 Except as permitted by SECTION 4.3, you will not
acquire,
assume or participate in, directly or indirectly, any
position,
investment or interest, known by you to be adverse or
antagonistic to,
or competitive with, the Company, its businesses or
prospects,
financial or otherwise.
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4.3 During the term of your employment by the Company
(except
on behalf of the Company), you will not directly or indirectly,
whether
as an officer, director, stockholder, partner, proprietor,
associate,
representative, consultant, or in any capacity whatsoever engage
in,
become financially interested in, be employed by or have any
business
connection with any other person, corporation, firm, partnership
or
other entity whatsoever which were known by you to directly
or
indirectly compete with the Company, throughout the world, in
any line
of business engaged in (or planned to be engaged in) by the
Company;
PROVIDED, HOWEVER, that anything above to the contrary
notwithstanding,
you may own, as a passive investor, securities of any
competitor
corporation, so long as your direct holdings in any one such
corporation shall not in the aggregate constitute more than 1%
of the
publicly-traded voting stock of such corporation.
5. PROPRIETARY INFORMATION AND INVENTIONS. If not already a
party
thereto, you agree to sign and be bound by the provisions of the
Company's
standard Employee Confidentiality and Inventions Agreement (the
"EMPLOYEE
CONFIDENTIALITY AGREEMENT").
6. REMEDIES. Your duties under the Employee Confidentiality
Agreement
shall survive termination of your employment with the Company.
You acknowledge
that a remedy at law for any breach or threatened breach by you
of the
provisions of the Employee Confidentiality Agreement would be
inadequate and you
therefore agree that the Company shall be entitled to injunctive
relief in case
of any such breach or threatened breach.
7. ASSIGNMENT. Neither this Agreement nor any rights or
obligations
hereunder may be assigned by the Company or by you.
8. SEVERABILITY. 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. If moreover, 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, it
shall be construed
by limiting and reducing it, so as to be enforceable to the
extent compatible
with the applicable law as it shall then appear.
9. NOTICES. Any notice which the Company is required or may
desire to
give you shall be given by personal delivery or registered or
certified mail,
return receipt requested, addressed to you at the 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's Chief
Executive
Officer, at the Company's 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 such notice shall be deemed
to be the date
of delivery thereof.
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10. WAIVER. If either party should waive any breach of any
provisions
of this Agreement, he or it shall not thereby be deemed to have
waived any
precedi
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