Exhibit 10.14
Candela
Corporation
Executive Employment, Non-competition and
Non-disclosure Agreement
THIS EMPLOYMENT, NONCOMPETITION AND
NONDISCLOSURE AGREEMENT (this “ Employment Agreement
”), effective as of
[ ,2007]
(the “ Effective Date ”) is made by and between
Candela Corporation, a Delaware corporation (the “
Company ”), and
[ ]
(the “ Executive ”). The Company and the
Executive are sometimes referred to, individually, as a “
Party ” or, collectively, as the “
Parties .”
BACKGROUND
The
Executive is employed by the Company. The Company desires to
maintain the employment of the Executive, and the Executive wishes
to remain employed by the Company, upon the terms and conditions
hereinafter set forth.
The
Executive acknowledges that in the course of rendering services to
the Company, he may have and will in the future become acquainted,
with information about the business and financial affairs of the
Company, and may have contributed or may in the future contribute
to such information. The Executive recognizes that in order to
protect the legitimate interests of the Company it is necessary for
the Company to protect all such information by keeping it secret or
confidential.
To
evidence the understanding and agreement of the Company and the
Executive with regard to various aspects of the Executive’s
continuing employment and post-employment benefits, the Executive
and the Company evidence their various agreements in this
Employment Agreement.
IN
CONSIDERATION of the premises, the mutual covenants and conditions
set forth herein, for the Company continuing to employ the
Executive, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1.
EMPLOYMENT
1.1. Employment at Will . The Company hereby offers the Executive,
and Executive hereby accepts, employment or continued employment as
[ Position ] (the “ Position ”) of the
Company upon the terms and conditions hereinafter set forth
herein. Employment by the Company is terminable at any time,
for any reason, at the will of either the Executive or the
Company. Executive understands and acknowledges that he
serves in such Position under the direct or indirect direction of
the Chief Executive Officer and President (the “CEO”)
of the Company, and his service may be terminated in the sole
discretion of the CEO. No statement of policy or procedure,
whether written or oral, or set forth in any manual or guide, shall
be deemed or construed to be a promise by the Company to continue
employment of the Executive for any definite term, nor shall any
such statement, policy or procedure require the Company to follow
any special procedure, such as progressive discipline, before
terminating employment.
1.2. Exclusive Employment . The Executive shall devote his full-time
efforts during normal business hours, and as otherwise reasonably
required, to fulfill Executive’s employment responsibilities,
exclusively for the benefit of the Company as required hereunder,
and shall perform no services for, and shall not become employed or
engaged by, any other person, firm or entity while employed by the
Company. The foregoing shall not prevent Executive from
(i) serving on corporate, civic or charitable boards or
committees; (ii) delivering lectures or fulfilling speaking
engagements; and/or (iii) managing personal investments, so
long as such activities do not interfere with the performance of
Executive’s responsibilities under this Employment
Agreement.
1.3. Duties . The Executive’s duties and
responsibilities shall be as assigned by the CEO of the
1
Company in his
discretion but shall be consistent with Executive’s
position. At all times the CEO shall be subject to the
direction and control of the Board of Directors of the Company, and
the Executive shall be subject to the direction and control of the
CEO.
2.
COMPENSATION
During the Term (as defined in
Section 13.1 hereof), as compensation to the Executive
for all of the services to be provided by the Executive to the
Company, the Company agrees to pay, and the Executive agrees to and
does accept, the payments set forth below in this
Section 2 , unless otherwise agreed to by the Company
and the Executive:
2.1. Salary . For so long as the Executive shall remain
employed by the Company in the present Position during or after the
Term, he shall be entitled to receive an annual salary of
[ Insert Salary
]
($ )
(“ Salary ”). Salary shall be paid, in
arrears, on such legal basis as the Company shall generally follow
from time to time, net of all taxes and other legally required or
mutually agreed withholdings. Salary may be modified from
time to time by the CEO without formal amendment to this Employment
Agreement. In this regard, the Executive hereby authorizes
the Company to withhold from salary payments any amounts owed to
the Company by Executive hereunder or any other amounts as may be
agreed to subsequently, including, but not limited to, overpayments
and 401k contributions.
2.2. Benefits . The Executive shall be entitled to the
benefits, such as health insurance, dental insurance, life
insurance, long-term care, vacation, paid and unpaid leave as the
Company may from time to time offer to employees generally as a
standard benefit, and shall be entitled to such additional benefits
as are offered to other senior officers by the Company at the same
general level of responsibility and title as the Executive.
Benefits are subject to change at any time with such notice to
employees as may be required by applicable employee benefit plans
and laws governing them. No special or different terms shall
apply to Executive unless set forth in writing and signed by an
authorized executive officer of the Company.
2.3. Cash Bonuses . The Executive may or may not receive a
bonus in respect of any fiscal year depending on the parameters set
by the CEO and approved by the Compensation Committee of the Board
of Directors, based upon the performance, respectively, of the
Executive and/or the Company, and the achievement of targets
established in such bonus plan. If the bonus plan for a
particular year is premised solely upon the performance of the
Company (rather than either specific metrics for an officer, or
such officer-specific metrics and performance of the Company
together), then the CEO may recommend, and in such case the Board
of Directors or Compensation Committee thereof shall consider,
approval of bonus arrangements outside of the bonus plan for an
individual Executive based upon the Executive’s performance
evaluation. Nothing herein shall be deemed to compel the CEO
or the Board of Directors or Compensation Committee thereof to
establish a bonus pool for any particular period, nor shall the
Executive be deemed to be entitled to any bonus irrespective of the
achievement of various targets contained in a formal bonus program
approved as aforesaid, provided , however , if the
Board of Directors or Compensation Committee has approved your
eligibility to participate in a bonus pool, your targets have been
identified and approved, the time period for the achievement of
your targets has been completed, and you have achieved one or more
targets that were to give rise to specified amounts of bonus, then,
in such case, you shall be entitled to receive your bonus in
respect of that bonus period.
2.4. Equity Awards . Subject to the approval of the Board of
Directors, or the Compensation Committee thereof, the Executive
shall be entitled to receive options to purchase common stock of
the Company, Stock Appreciation Rights, shares of restricted stock,
or such other equity grants as may be determined by the Board of
Directors, or Compensation Committee thereof, in its or their sole
and complete discretion.
2.5. Review of Salary and Bonus . Salary and bonus potential shall be
reviewed at least annually by the CEO.
2.6. Supplemental Retirement Plan
. Executive will be eligible to
participate in any supplemental retirement plan, if adopted by the
Company upon the standard terms that may be offered to other
executives of the same or similar level of the Company.
2
2.7. Company Car . The Employee will be entitled to the use
of a Company car, leased by the Company, in a price range
determined by the CEO from time to time. In the event the
Employee’s employment is terminated at any time by the
Company, for reasons other than for Cause, the Company will
continue to make two full monthly payments on the lease.
2.8. No Assurances
. The Executive acknowledges that there can be no assurance
that the performance of the Company will be sufficient to achieve
the conditions prerequisite to the payment of any of the bonus
compensation provided for above, nor can there be any assurance at
any time with respect to the value of any of the equity
compensation provided for above, including without limitation, at
the time of any exercise of stock options, Stock Appreciation
Rights, or similar equity instruments.
3.
INTELLECTUAL PROPERTY
PROTECTION
For purposes of
this Employment Agreement, the following terms shall have the
meanings assigned to them below:
3.1. Definitions:
3.1.1.
Confidential
Information: The
term “Confidential Information” shall mean any trade
secret, proprietary or confidential information concerning the
organization, personnel, business or finances of the Company, or of
any third party which the Company is under an obligation to keep
confidential, and that is maintained by the Company as
confidential. Such Confidential Information shall include,
but is not limited to, trade secrets, proprietary or confidential
information respecting existing and future products and
services, designs, methods, formulas, drafts of publications,
research, know-how, techniques, systems, databases, processes,
software programs or code, developments or experimental work, works
of authorship, customer and prospect lists and/or customer
information and related information, business plans, marketing
plans, price lists, financial information, sales techniques,
projects, the Company’s salary and/or pay rates, other
Company personnel information, and all other plans and
proposals. Failure to mark any of the Confidential
Information as confidential shall not affect its status as part of
the Confidential Information covered under the terms of this
Employment Agreement.
3.1.2.
Developments:
The term
“Developments” shall mean any invention, modification,
discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data,
technique, know-how, trade secret or intellectual property right
whatsoever or any interest therein (whether or not patentable or
registrable under copyright, trademark or similar statutes,
including, but not limited to, the Semiconductor Chip Protection
Act, or subject to analogous protection).
3.2. Disclosure of Developments
3.2.1.
The Executive agrees that he will
communicate in writing to the Board of Directors of the Company, or
such officer or individual as the Board of Directors of the Company
may from time to time designate, a full and complete disclosure of
any and all Developments, research and other information,
discoveries and improvements made, developed, conceived and/or
reduced to practice by the Executive, alone, or jointly with others
during a one (1) year period following the termination of my
employment or other association with the Company, if such
Developments, research, discoveries or improvements relate to the
business of the Company.
3.2.2.
The business of the Company includes
any technical or business interest that has been worked on by the
Company in the past, or in which there is work in progress at the
Company during the period of Executive’s employment with the
Company. The business interests of the Company include
Company operations or activities in the planning stages.
3.2.3.
Executive’s Works
. The Executive hereby
represents and warrants that the Executive has fully disclosed to
the Company and attached hereto a description of any Developments
which, prior to his employment with the Company, the
3
Executive
conceived of or developed, wholly or in part, but which has not
been published or filed with the United States Patent or Copyright
Offices, and any such Developments which, following his employment
with the Company, he believes he retains some individual rights to
same.
3.3. Assignment of Developments
3.3.1.
If at any time or times during the
Executive’s employment or other association with the Company,
the Executive shall (either alone or with others) make, conceive,
create, discover, invent or reduce to practice any Development that
(i) relates to the business of the Company or any of the
products or services being developed, manufactured or sold by the
Company or which may be used in relation therewith; or
(ii) results from tasks assigned to Executive by the Company;
or (iii) results from the use of premises or personal property
(whether tangible or intangible) owned, leased or contracted for by
the Company, then all such Developments and the benefits thereof
are and shall immediately become the sole and absolute property of
the Company and its assigns, as works made for hire or
otherwise. The Executive shall promptly disclose to the
Company (or any persons designated by it) each such
Development. The Executive hereby assigns to the Company all
rights (including, but not limited to, rights to inventions,
patentable subject matter, copyrights and trademarks) that the
Executive may have or may acquire in the Developments and all
benefits and/or rights resulting therefrom to the Company and its
assigns without further compensation and shall communicate, without
cost or delay, and without disclosing to others the same, all
available information relating thereto (with all necessary plans
and models) to the Company.
3.3.2.
The Executive will assist, upon
request, in locating writings and other physical evidence of the
making of his Developments and provide unrecorded information
relating to them, and give testimony in any proceeding in which any
of the Executive’s Developments or any application or patent
directed thereto may be involved, provided that if Executive is no
longer employed by the Company, reasonable compensation shall be
paid for such services. Notwithstanding the foregoing, no
obligation is imposed on the Company to remunerate at a higher rate
for the giving of testimony than the rate established by law for
the compensation of witnesses in the court or tribunal where the
testimony is taken. To the extent feasible, the Company will
use its best efforts to request such assistance at times and places
as will least interfere with any other employment of the
Executive.
3.3.3.
The Executive will promptly disclose
to the Company all material which the Executive produces, composes
or writes, individually or in collaboration with others, which
arises out of work delegated to the Executive by the Company.
The Executive agrees that all such material constitutes a work for
hire, and at the expense of the Company, the Executive hereby
assigns to the Company all his interest in such copyrightable
material and will sign all papers and do all other acts necessary
to assist the Company to obtain copyrights on such material in any
and all countries.
3.3.4.
Any Development relating to the
Company’s business made by Executive within one (1) year
following the termination of his employment (and which is required
to be disclosed in accordance with Section 3.2 above) shall be
presumed to be owned by the Company.
3.3.5.
The Executive understands and
acknowledges that this Article 3 does not apply to an
invention for which no equipment, supplies, facilities and/or trade
secret information of the Company was used and which was developed
entirely on the Executive’s own time, unless the invention
relates directly to the business of the Company, or to the
Company’s actual or demonstrably anticipated research or
development, or the invention results from any work performed by
the Executive for the Company.
3.4. Non-Disclosure:
3.4.1.
The Executive recognizes that he has
been exposed, prior to the date of this Agreement, and hereafter
will be exposed to the Company’s Confidential
Information. The Executive agrees that he will not, at any
time, whether during or after the termination of Executive’s
employment, without first obtaining the written approval of the
Board of Directors of the
4
Company, or of
such officer or individual as the Board of Directors of the Company
may from time to time designate, divulge, reveal, publish, transfer
or disclose to any person or entity outside of the Company, whether
by private communications or by public address or publication, or
otherwise, any Confidential Information, except to the extent that
such disclosure is necessary to perform the Executive’s
duties and fulfill his responsibilities as an employee of the
Company. All original and copies of any Confidential
Information or other written materials relating to the business of
the Company, however and whenever produced, shall be the sole
property of the Company, not to be removed from the premises or
custody of the Company unless necessary to fulfill the essential
functions of the Executive’s job responsibilities.
3.4.2.
The Executive shall keep confidential
all matters entrusted to the Executive and shall not use or attempt
to use any Confidential Information, including confidential
information related to third parties which the Company is obligated
to maintain as confidential, except as may be required in the
ordinary course of performing Executive’s duties as an
employee of the Company, nor shall Executive use any Confidential
Information in any manner which may injure or cause loss or may be
calculated to injure or cause loss to the Company, whether directly
or indirectly.
3.5. Works and Interests of Others
. The Executive hereby
represents and warrants that employment by the Company will not
violate any agreement or promise of the Executive to any other
person, and that the Executive will not use any property or
Confidential Information of others in his work for the
Company.
4.
RECORDS AND TANGIBLE
MATERIALS
All
notes, data, tapes, reference materials, sketches, drawings,
memoranda and records in any way relating to any of the information
referred to in Section 3 , and hereof (including,
without limitation, any Confidential Information) or
otherwise prepared by Executive in the course of his employment,
and all copies thereof, shall belong exclusively to the Company,
and the Executive agrees to deliver to the Company on request all
copies of such materials in his possession or then under his
control. In the absence of such a request, Executive shall deliver
such items to the Company upon the termination for any reason of
the Executive’s employment with the Company.
5. PROTECTION OF
INFORMATION AND GOODWILL
5.1. Nature of
Business . The Executive and the Company recognize that
the Executive will acquire knowledge as a result of working for the
Company, especially in his Position, and that such knowledge will
include not only general knowledge about the Company’s
industry, but specific knowledge of the Company’s business,
secrets, products and customers, including Confidential
Information. The Executive and the Company recognize that
upon termination of employment by the Company, the Executive could
use such specific knowledge and information to the detriment of the
Company by disclosing it to competitors, customers and prospects,
and using it to obtain or win business. The Executive and the
Company recognize that proof of such disclosure would be difficult,
yet the harm caused thereby could be significant to the
Company. Therefore, the Executive and the Company are willing
to agree that Confidential Information will be disclosed to the
Executive, and, to protect the Company, its relationship with its
customers, its competitive position, and its goodwill, the
Executive will not engage in a competitive venture for a twelve
(12) month period after employment by the Company, as specified
below.
5.2. The Executive agrees
while in the employ of the Company and for one (1) year
thereafter (the “Prohibition Period”), regardless of
the reasons for the Executive’s termination, he will not
directly or indirectly, do any of the following:
5.2.1.
Accept employment with a company that
competes with the Company in the cosmetic and aesthetic/medical
laser and light based system market, or engage in competitive
activities related thereto, including any business engaged in the
business of developing, producing, marketing or selling products or
services of the type under development, developed, produced,
marketed or sold by the Company while the Executive was employed by
the Company.
5
5.2.2.
Without limiting or narrowing the
foregoing restriction, accept employment with and/or enter into a
competitive relationship with the following list of competitors
and/or any affiliated companies of such competitors also engaged in
competition with the Company: Aesthera Alderm, Alma Lasers,
CoolTouch, Cutera, Cynosure, DDD, HOYA, ComBio, Laserscope,
Lumenis, Palomar Medical Technologies, Radiancy, Reliant, Rhytec,
Sciton, Syneron and Thermage.
5.2.3.
The Executive agrees that this
Section 5 shall be treated as a separate and independent
clause, and the unenforceability of any provision of it
s
|