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COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
BIOSYSTEMS OF NEW ENGLAND, INC.,
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Paint dtaesttesr ne.) vil Action No
, ros ESTA SPURS, 17-309.
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BYRON RHODES, OCT 23 2017 )
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Defendant. FEY Oars
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AFFIDAVIT OF PHILLIP T. MEIKLE, II
Phillip T. Meikle, II, being duly sworn, deposes and states as follows:
1. | am the founder and President of plaintiff Biosystems of New England,
Inc. (“Biosystems”), a Massachusetts corporation. Biosystems is an independent
distributor for Stryker Spine, a division of Howmedica Osteonics Corporation (“Stryker”)
and certain manufacturers of complementary products. Stryker develops, manufactures
and sells spinal implants, instruments and other products used in the surgical treatment
of spinal disorders and spinal trauma by neurosurgeons and orthopedic surgeons.
These products include metal cages and screws for cervical and thoracolumbar spinal
surgeries, interbody cages, including the state-of-the-art Tritanium cage, the Aero-C
cervical interbody fixation system and Vitoss, a full line of biologic products to promote
soft tissue repair. Biosystems is Stryker'’s exclusive distributor in all of New England
and upstate New York. | make this Affidavit in support of Biosystems’ Motion for
Preliminary Injunction through which Biosystems seeks to enforce the non-competition
and non-solicitation restrictions in its Sales Employee Agreement (“SEA”) with ByronRhodes (for a period of 24 months and within a 100-mile radius of his Biosystems
territory in New Haven, New London, Bridgeport, and Derby, Connecticut). A true and
accurate copy of the current SEA is attached hereto as Exhibit A.
2. | founded Biosystems as a one-man operation in 1992 and, over the past
25 years, | have overseen Biosystems’ development into a business with 86 employees
and a network of neurosurgeon and orthopedic surgeon customers who use products
distributed by Biosystems. (In 2016, |, together with several partners, formed
Biosystems of Chesapeake, LLC, a Massachusetts limited liability corporation, which
became Stryker's exclusive distributor in Maryland, Virginia, Southern Delaware, and
the District of Columbia. Biosystems of Chesapeake has 15 employees.) Biosystems
principals and employees pride themselves on providing the highest level of knowledge
regarding the capabilities and functionality of the products we sell and the best possible
service and support to our surgeon customers.
The Sales Process in Spinal Implant Industry and Customer Good Will
3. The sale of spinal implants and related products is a technical and highly
competitive business. It is built, in part, on relationships. The quality of support and
service provided by a company can greatly impact a surgeon’s decision as to which
company's products to use. Surgery on the spine is, for most patients, a life altering
event. It requires the complete concentration of the surgeon, often for hours on end,
and sometimes on a moment's notice. The surgeon requires the support of a team of
other doctors, nurses, product representatives, and other administrative staff and must
have absolute confidence that each member of the surgery team will execute his or her
responsibilities as required no matter what the circumstances.4. In most cases, the individual surgeon determines which manufacturer's
products to use in a particular surgery; sales efforts, therefore, are made directly with
surgeons. The field sales personnel act as the chief point of contact for the surgeon as
well as the hospital for the sale. When a surgery is scheduled, it is the role of the
salesperson to ensure that the required products and any necessary instrumentation
are delivered, sterilized, and available for the surgery on time. Nearly all surgeries
utilizing spinal products are attended by sales personnel who are available throughout
the surgery to answer questions about the products or address any issues with respect
to the devices, instrumentation, or ancillary products. Biosystems’ sales representatives
are charged with ensuring that the surgeon and other medical personnel in their
assigned territory know and understand that they will be available and responsive with
regard to any needs, questions or other matters concerning the products they represent.
Spinal surgery can be very lengthy and many surgeons perform multiple surgeries every
week. As a result, spinal sales personnel spend a great deal of time with their surgeon
customers and hospital staff, and develop strong personal relationships with them. This
sales process is utilized across the industry.
5. The sales personnel are the public face of Biosystems to the hospital and
surgeon customers, and it is vital to the sales process that hospital staff and the
surgeon customers develop and maintain confidence and trust in their sales
representative. Biosystems’ sales personnel are expected to develop, maintain and
enhance Biosystems’ good will with its surgeon customers. A sales representative who
has developed a relationship of trust with his customers can readily harm the good will
associated with Biosystems products.Confidential Information
6. Biosystems also regularly shares with its sales representatives extensive
detailed and confidential information concerning sales results, performance, sales
strategies, new products, and intelligence regarding competitors’ results and strategies.
This type of information is shared on a territory and company-wide basis. During his
three plus years of employment with Biosystems, Mr. Rhodes has had extensive access
to Biosystems’ confidential business information including without limitation information
concerning Biosystems’ sales network, customer information, customer preference,
pricing and sales strategies, selling efforts, surgical techniques for all products in pdf
format, and obstacles to sales and business development. Importantly, all Biosystems
employees, including Mr. Rhodes, have access to our confidential password-protected
Intranet which lists all scheduled surgeries Company-wide and the products that will be
used, with the exception of surgeries at locations with consigned products.
7. In the course of their work, sales representatives acquire extensive
confidential information about the individual surgeon’s purchasing volumes and
patterns, the performance of the products in particular surgeries or with particular
surgical techniques, the strengths and limitations of the product in particular procedures,
and the individual surgeon's product design preferences. Sales representatives also
know why a surgeon chooses the product.
Training, Education and Support
8. Biosystems invests substantial resources in developing and training its
sales personnel and maintaining customer relationships and goodwill. The highly
technical nature of the business requires that both sales representatives and surgeoncustomers be educated in the latest aspects of the products as they apply to the full
range of surgeries and surgical techniques. Sales personnel are provided extensive
clinical and scientific instruction on the products and on the surgical procedures and
techniques for spinal procedures. The company invests in and provides access to
cadaver labs to both sales representatives and surgeon customers for purposes of
training on the use of its products. Biosystems also provides educational opportunities
for surgeons on clinical and technical issues. At company sales meetings, sales
personnel have additional opportunities to gain clinical and technical knowledge, at the
expense of the company, so that they are prepared to serve the surgeon customers
employing a variety of surgical techniques.
9. Biosystems, sometimes in conjunction with Stryker or other manufacturers
it represents, provides extensive training to all sales representatives and sales
associates, including Mr. Rhodes. When he began working at Biosystems in June of
2014, Mr. Rhodes attended a two-day intensive orientation and training program at
Biosystems’ home office in Waltham, Massachusetts. He then attended Sales
Associate Training Sessions (Instrument and Implant Review) for Stryker products in
October, November, and December of 2014 in Connecticut. Throughout each year, Mr.
Rhodes attended or participated in numerous training events and sales meetings in
various locations, including a two-week event in New Jersey in 2016. Mr. Rhodes also
participated in quarterly meetings with the sales team in his region.
10. Periodically, Mr. Rhodes came to Massachusetts to attend work-related
meetings and events. For instance, on July 14, 2017, Mr. Rhodes came to Boston to
attend a training session hosted by Stryker/Biosystems and went to a Red Sox gamewith one of his surgeon customers after the session. He participated in a CNS medical
event program in Boston and has also accompanied other surgeons to training events in
Boston.
Biosystems’ Employment Of Byron Rhodes
41. Onor about June 9, 2014, Mr. Rhodes began working for Biosystems as a
sales associate covering New Haven, Bridgeport, and Derby, Connecticut. At that time,
Mr. Rhodes was approximately 40 years of age with a high schoo! education and was
working as a “scrub tech” at Yale New Haven Hospital. He had never worked in spinal
implant/medical device sales previously. At the time of his hiring, Mr. Rhodes thanked
me personally for the opportunity to enter the business.
12. In connection with his hiring, Mr. Rhodes signed a Sales Employee .
Agreement with Biosystems including restrictive covenants identical to those in the
current SEA. Upon Mr. Rhodes’ hiring, Biosystems paid him a starting salary of
$72,500.00 which, | understand, was a raise of approximately $32,500.00 above his
salary after working as a “scrub tech” for 15 years.
13. When he was offered a promotion to the position of Sales Representative
on or about September 1, 2016, Mr. Rhodes demanded, and received, significant raises
from Biosystems and signed a new SEA with Biosystems. New London was added to
his territory at that time.
14. For calendar year 2015, Mr. Rhodes received salary and commission
compensation from Biosystems totaling $87,151.00. For calendar year 2016, he
received salary and commission totaling $102,355.00. Through September, 2017,
Biosystems has paid Mr. Rhodes a total of $95,729.00 in salary and commission.Under his current SEA, at Mr. Rhodes’ insistence, he was guaranteed income of at least
$110,000.00 for 2017, $125,000.00 for 2018 and $140,000.00 for 2019.
15. In every year that he worked for Biosystems, Mr. Rhodes received
guaranteed income that was far in excess of the sales commissions he could have
earned. For instance, he received guaranteed annual income of $110,000.00 from
Biosystems under the SEA in 2017; his earned commissions through his termination
date of October 18, 2017 were only $49,000.00.
16. The SEA sets forth the following defined terms:
1.2.
1.3.
1.4.
1.5.
BIOSYSTEMS PRODUCTS means any goods, products, product
lines, devices, tissue, and services sold, marketed, promoted, or
supported and/or serviced by Biosystems or any of its employees
during the term of this Agreement.
COMPETITIVE PRODUCT means any goods, products, product
lines, devices, tissue, and services, and each and every component
thereof, produced manufactured, marketed, promoted, sold, or
serviced, or that are in development or the subject of research by
anyone other than MANFACTURER(S) that are the same or
similar, perform any of the same or similar functions, may be
substituted for, or are intended or used for any of the same
purposes as a BIOSYSTEMS PRODUCT.
CONFLICTING ORGANIZATION means any person (including the
Sales Representative) or entity, and any parent, subsidiary, partner,
or affiliate (regardless of their legal form) of any person or entity,
that engages in, or is about to become engaged in the
development, design, production, manufacture, promotion,
marketing, sale, support, or service of a COMPETITIVE
PRODUCT.
MANUFACTURER means each and every manufacturer or other
business entity or person whose products and/or services
Biosystems markets, promotes, sells, or services during all or any
portion of the time this Agreement is in effect, and all of their
parents, subsidiaries, or affiliated corporations, and their
successors and assigns.17. As set forth in more detail below, Biosystems protects its confidential
information and customer good will through, among other things, non-competition and
non-solicitation covenants with its sales representatives. Specifically, the SEA provides
in relevant part as follows:
18. NON DISCLOSURE OF CONFIDENTIAL INFORMATION
18.1. OBLIGATION TO MAINTAIN CONFIDENTIALITY. From time to
time the Sales Representative will have access to certain confidential
information relating to Biosystems and/or each MANUFACTURER
(“Confidential Information”). Confidential Information means any
information relating to Biosystems or any MANUFACTURER'S business,
including a formula, pattern, compilation, program, device, method,
technique, system, plan or process, that Sales Representative learns or
develops during the course of Sales Representative’s employment by
Biosystems that derives independent economic value form not being
generally known, or readily ascertainable by proper means, by other
persons who can obtain economic value from its disclosure or use.
Confidential Information includes but is not limited to trade secrets and
inventions and, without limitation, may relate to research; development;
experiments; clinical investigations; clinical trials; clinical and product
development results and data; engineering; product specifications;
computer programs; computer software; hardware configurations;
manufacturing processes; compositions; algorithms; know-how; methods;
machines; management systems and techniques; strategic plans; long-
range plans; operating plans; organizational plans; financial plans;
financial models; financial projections; nonpublic financial and sales
information; business, financial, planning and strategic systems and
methods; operating systems; information systems; acquisition and
divestiture goals, plans, strategies or targets; regulatory strategies, plans
and approaches; quality control systems and techniques; patent and
intellectual property strategies, plans and approaches, vendor and
customer data, employee and personnel data; human resources goals,
plans and strategies; human resource management techniques; sales
volume; pricing strategies; sales and marketing plans and strategies;
contract sand bids; any business management techniques that are being
planned, developed, utilized or executed by Biosystems or any
MANUFACTURER; customer lists; information concerning the internal
organization of Biosystems; the names and responsibilities of
management, supervisory, and technical employees; compensation plans,
including but not limited to commission rates; manufacturing activities;
technical information concerning BIOSYSTEMS PRODUCTS (except as
contained in marketing or promotional literature furnished to SalesRepresentative for distribution). Sales Representative covenants that
he/she will hold all Confidential Information in strict confidence and in trust
for Biosystems’ benefit, and will not at any time during the term of this
Agreement or at any time thereafter disclose any Confidential Information,
in whole or in part, to any third party, or use Confidential Information for
his/her own benefit or for the benefit of any third party without the prior
written consent of Biosystems’ President.
18.2. Upon Biosystems’ request or upon expiration or termination of this
Agreement, whether or not separate written demand has been made,
Sales Representative will return promptly all Confidential Information to
Biosystems to the extent held by Sales Representative in written, graphic,
or other tangible form and all copies, summaries, notes, and other
documents pertaining thereto made by Sales Representative.
18.3. The Sales Representative acknowledges that money damages
would be an inadequate remedy for the breach of any of the provisions of
Section 18 of this Agreement, and accordingly, Biosystems, with or
without pursuing any remedy for damages, shall be entitled to an
immediate injunction restraining the Sales Representative from breaching
or continuing to breach the same. This remedy is not exclusive and shall
be in addition to any other remedy available to Biosystems in law or
equity.
20. POST-EMPLOYMENT RESTRICTIONS
20.1. During the term of this Agreement and for the first twenty-four (24)
months following its termination or expiration, the Sales Representative
agrees that he/she will not be employed or affiliated in any capacity by,
become an independent contractor or consultant for, or perform any
services fora CONFLICTING ORGANIZATION in connection with or
relating to a COMPETITIVE PRODUCT within a One-Hundred (100) mile
radius of your territory.
20.3 Sales Representative agrees that at all times while employed by
Biosystems, and for twenty-four (24) months following the termination or
expiration of this Agreement, Sales Representative will not solicit, cause to
be solicited, or participate in or promote the solicitation of any person to
terminate that person’s employment with Biosystems, or to breach that
person’s Agreement with Biosystems.
20.4. The Sales Representative recognizes that the foregoing territorial
and time limitations are reasonable and properly required for the adequate
protection of the business of Biosystems, and that in the event that any
such territorial or time limitation is found to be unreasonable by a court of
competent jurisdiction, then the Sales Representative agrees and submitsto the reduction of either said territorial or time limitation as the court or
finder of fact determines.
20.5. In the event that the Sales Representative shall be in violation of
Section 20 of this Agreement, then the time limitation stated herein shall
be extended for a period of time equal to the period of time during which
the violation persists. In the event that Biosystems seeks injunctive relief
based on a perceived violation of Section 20 of this Agreement, then the
length of the non-competition/non-solicitation period shall be extended for
a period of time equal to the pendency of such proceedings, including all
appeals.
20.6. Sales Representative agrees to provide Biosystems at the time of
termination or expiration of this Agreement the identity of any new
employer, the job title of Sales Representative's new position, and a
description of any services to be rendered to that employer. In addition,
Sales Representative agrees to respond within ten (10) days to any
written request from Biosystems for further information concerning Sales
Representative’s work activities sufficient to provide Biosystems with
assurances that Sales Representative is not violating any of the
obligations Sales Representative has undertaken in this Agreement.
Sales Representative further agrees to furnish said information to
Biosystems during the twenty-four (24) month period following termination
or expiration of this Agreement.
20.7. The Sales Representative acknowledges that money damages
would be an inadequate remedy for the breach of any of the provisions of
Section 20 of this Agreement, and accordingly Biosystems, with or without
pursuing any remedy for damages, shall be entitled to an immediate
injunction restraining the Sales Representative from breaching or
continuing to breach the same. This remedy is not exclusive and shall be
in addition to any other remedy available to Biosystems in law or equity.
23. GOODWILL
Sales Representative acknowledges that Biosystems has and owns the
goodwill in the Sales Representative's relationships with BIOSYSTEMS
CUSTOMERS that Sales Representative maintains or develops in the
course of the scope of the Sales Representative’s employment by
Biosystems. If Sales Representative owned goodwill in customer
relationships when Sales Representative commenced employment with
Biosystems, Sales Representative assigns any and all such goodwill to
Biosystems, and Biosystems shall become the owner of such goodwill.
1018. Mr. Rhodes has made conflicting statements to various of his co-workers
about his work responsibilities and territory at JD Spine/Globus. He has said that he will
be working in his Biosystems’ territory. He has said that he will be selling metal
implants and biologics. He has said that he will be working in Hartford and New Britain,
Connecticut. And he has said that he will be working as a “robotics specialist” for
Globus.
19. On October 17, 2017, I sent Mr. Rhodes a letter by email and by federal
express, requesting the name of his new employer and information regarding his new
position pursuant to 120.6 of the SEA. | also asked that he sign a Certification that he
had returned or destroyed all Confidential Information belonging to Biosystems and that
he had not disclosed that information to any third party. A copy of my letter is attached
hereto as Exhibit B.
20. Mr. Rhodes did not respond to my letter. Instead, by email on the night of
October 19", Mr. Rhodes stated: “My current employer will get back to you about my job
details.” At the same time, Mr. Rhodes returned the signed Certification to me. A copy
of Mr. Rhodes’ email with the Certification is attached hereto as Exhibit C.
21. — | learned through LinkedIn early on the morning of October 20, 2017 that
Mr. Rhodes has accepted a position as the “Excelsius GPS navigation systems
specialist at Globus Medical.” A copy of the Linkedin listing is attached hereto as
Exhibit D. The Globus Excelsius Robot was recently approved by the FDA, used for
spinal navigation/intra-operative placement of pedicle screws. Stryker sells a Spine
Navigation System which competes directly with the Globus product. Biosystems works
closely with Stryker to place the spine navigation units in hospitals and Biosystems pays
11for a substantial portion of the cost (hundreds of thousands of dollars) of placing those
units. Biosystems’ personnel market, support and service those units and are present
for every surgery in our territory using the Spine Navigation System. Mr. Rhodes’
territory remains undisclosed.
22. Tomy understanding, Mr. Rhodes has no experience, background or
expertise in robotic technology.
23. The purpose of the Spine Navigation System and the Globus Robot
system is the same: to place pedicle screws.
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 20" DAY
OF OCTOBER, 2017
Phillip T. Meikle, II
12BIOSYSTEMS OF NEW ENGLAND, INC.
SALES EMPLOYEE AGREEMENT ("Agreement")
DATE: September 1, 2016
BETWEEN: Biosystems of New England, Inc., a Massachusetts Corporation with its
usual place of business at 1440 Main Street Waltham, MA 02451(the
“Office”), including without limitation the successors, assigns, parents,
and affiliates of Biosystems, hereinafter referred to as "Biosystems,"
AND: Byron Rhodes a resident of Connecticut residing at 20 Ridgewood Court,
North Haven, CT 06473 referred to as "Sales Representative."
WHEREAS: Biosystems wishes to employ Sales Representative to market, promote,
sell, and/or service BIOSYSTEMS PRODUCTS covered by this
Agreement and Sales Representative wishes to market, promote, sell,
and/or service BIOSYSTEMS PRODUCTS pursuant to the terms of this
Agreement;
NOW, THEREFORE, in consideration of the covenants stated herein, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Sales Representative and Biosystems agree as follows:
1. DEFINITIONS
The terms defined below have the defined meaning whenever used in this
Agreement:
1.1. BIOSYSTEMS CUSTOMER means any person, entity, or institution to whom
Sales Representative, or persons under Sales Representative’s management,
direction, or supervision, sold, solicited sales, supported, marketed, or promoted
BIOSYSTEMS PRODUCTS during the term of this Agreement. Without
limiting the generality of the foregoing, the term BIOSYSTEMS CUSTOMER
includes all employees, agents, or representatives, and any other persons who
control, direct, or influence purchasing decisions of any such person, entity, or
institution.
1.2. BIOSYSTEMS PRODUCTS means any goods, products, product lines, devices,
tissue, and services sold, marketed, promoted, or supported and/or serviced by
Biosystems or any of its employees during the term of this Agreement.
1.3. COMPETITIVE PRODUCT means any goods, products, product lines, devices,
tissue, and services, and each and every component thereof, produced,
manufactured, marketed, promoted, sold, or serviced, or that are in development
or the subject of research by anyone other than MANUFACTURER(S) that are
the same or similar, perform any of the same or similar functions, may beBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT
1.4,
15.
substituted for, or are intended or used for any of the same purposes as a
BIOSYSTEMS PRODUCT.
CONFLICTING ORGANIZATION means any person (including the Sales
Representative) or entity, and any parent, subsidiary, partner, or affiliate
(regardless of their legal form) of any person or entity, that engages in, or is about
to become engaged in, the development, design, production, manufacture,
promotion, marketing, sale, support, or service of a COMPETITIVE PRODUCT.
MANUFACTURER means each and every manufacturer or other business entity
or person whose products and/or services Biosystems markets, promotes, sells, or
services during all or any portion of the time this Agreement is in effect, and all
of their parents, subsidiaries, or affiliated corporations, and their successors and
assigns.
2, APPOINTMENT OF SALES REPRESENTATIVE
Subject to the provisions of this Agreement, Biosystems hereby employs Sales
Representative and Sales Representative hereby accepts employment to market, promote,
sell, solicit sales of, support, and service the BIOSYSTEMS PRODUCTS now or
hereafter listed on Exhibit A, with responsibility for the geographical area and/or medical
institutions now or hereafter listed on Exhibit B (hereinafter referred to as the “Territory")
from the date of this Agreement up to and including December 31, 2019.
3. SALES REPRESENTATIVE'S OBLIGATIONS
In addition to all other covenants, duties, and obligations set forth in this Agreement,
Sales Representative agrees:
3.1,
3.2.
3.3.
3.4,
3.5.
Page 2
To promote, market, sell, solicit sales of, support, and service BIOSYSTEMS
PRODUCTS throughout the Territory vigorously and with best efforts;
To use his/her best efforts to meet or exceed the quarterly and annual
Performance Objectives established by Biosystems pursuant to Section 8;
To refrain from making any representations or warranties concerning
BIOSYSTEMS PRODUCTS, except those representations and warranties
authorized in writing by Biosystems or by MANUFACTURER(S);
To comply with all applicable laws and regulations in force in the Territory, and
to conduct all of his/her business activities hereunder in accordance with
generally recognized ethical standards;
To render reasonable assistance to Biosystems, at Biosystems’ request, in defense
of any and all product liability claims;BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT
3.6. To refrain from disparaging BIOSYSTEMS PRODUCTS or the
MANUFACTURER(S), or from otherwise injuring the reputation, good standing,
and good will of Biosystems during and after employment with Biosystems;
3.7. To assist Biosystems, on request, in ascertaining the credit standing of, and in
collecting receivables from, aay BIOSYSTEMS CUSTOMER(S).
4. SALES AND MARKETING ASSISTANCE
In order to assist Sales Representative in fostering the promotion and sale of
BIOSYSTEMS PRODUCTS, Biosystems will provide the following programs, materials,
services, and assistance to the extent that it deems productive:
4.1. Advertising, sales promotion aids, displays, catalogues, literature, convention
assistance, new product information, and promotional activities;
4.2. Sales incentive programs; and
4.3. Technical assistance through sales seminars, meetings, and training programs.
5. QUOTATIONS, INVOICES, AND CREDITS
5.1. QUOTATIONS. Sales Representative will make quotations with respect to the
sales of BIOSYSTEMS PRODUCTS only as directed or approved by
Biosystems’ management,
5.2. INVOICES. Biosystems or MANUFACTURER(S) will invoice BIOSYSTEMS
CUSTOMERS for BIOSYSTEMS PRODUCTS they purchase. Sales
Representative will not invoice BIOSYSTEMS CUSTOMERS unless expressly
requested to do so by Biosystems in writing. Payments against invoices are to be
made directly to Biosystems or the MANUFACTURER(S), without intervention
by Sales Representative unless expressly requested in writing by Biosystems in
each instance. If Sales Representative receives any payment from a
BIOSYSTEMS CUSTOMER, Sales Representative will immediately forward the
entire amount of such payment to Biosystems.
5.3. CREDITS. Biosystems will have the sole right and absolute discretion to issue
credits, offer discounts and allowances, and accept returns of BIOSYSTEMS
PRODUCTS.
6. INCOME AND BENEFITS
6.1. RATE. As Sales Representative's sole compensation for his/her performance
under this Agreement, Biosystems will pay to Sales Representative the sum of all
amounts due pursuant Sections 6.1.1 and 6.1.2.
Page 3BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT
Page 4
6.1.1. From September 1, 2016 through December 31, 2017, income will be
guaranteed at $9,166.66 per month or $110,000.00 annually. From January
1, 2018 through December 31, 2018, income will be guaranteed at
$10,416.66 per month or $125,000.00 annually. From January 1, 2019
through December 31, 2019, income will be guaranteed at $11,666.66 per
month or $140,000.00 annually. Earnings will be calculated utilizing the
ledger system meaning that on monthly commission statements, $48,000
salary annually or $4,000 per month plus sales will be referenced and
commissions earned will be calculated based on the commission percentages
referenced in Exhibit A. A ledger will be maintained showing the income
paid versus commission earned. If by utilizing a $48,000 salary plus
commissions, earnings would be greater than the guarantee referenced above
for each timeframe referenced then salary plus commission shall be paid.
6.1.2. Commission Rate.
6.1.2.1, Biosystems will establish the commission rate applicable to any new
BIOSYSTEMS PRODUCT or materially modified BIOSYSTEMS
PRODUCT which Biosystems includes in Exhibit A by way of an
addendum to Exhibit A signed by a duly authorized representative of
Biosystems.
6.1.2.2. | The commission rate(s) specified in Exhibit A is predicated
substantially on the amounts every MANUFACTURER has presently
agreed to pay Biosystems for marketing, promoting, selling, soliciting
sales of, supporting, or servicing BIOSYSTEMS PRODUCTS. In the
event a MANUFACTURER changes the commission structure or
amounts it has agreed to pay Biosystems at any time during the term of
this Agreement, Biosystems has the right to modify the commission
rate(s) specified in Exhibit A concomitant with such change(s) by
delivering an addendum to Exhibit A to Sales Representative stating
his/her revised commission structure.
6.1.2.3. In the event BIOSYSTEMS CUSTOMERS fail to pay shipping or
freight charges on orders attributable to Sales Representative,
Biosystems reserves the right to deduct those amounts from
compensation due to the Sales Representative.
6.1.2.4. If Biosystems books expenses, credits, and discounts listed in
Section 6.1.2.1(i) through (v) and 6.1.2.3. after the payment to the Sales
Representative of commissions against which those expenses, credits,
and discounts should have been charged, Biosystems reserves the right
to charge those expenses, credits, and discounts against Sales
Representative’s future commissions. In the event that Biosystems has
paid Sales Representative commissions on sales to a BIOSYSTEMS
CUSTOMER whose account is subsequently entitled to a credit, forBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT
returns or otherwise, Biosystems will be entitled to a reimbursement
from Sales Representative to the extent of the commission paid, and
may set off such amounts against future commissions.
6.1.2.5. | NO LIABILITY FOR REJECTION OR NON-PAYMENT OF
ORDER. Biosystems will have no liability whatsoever to Sales
Representative for commission payments or otherwise (and may deduct
amounts paid from future commissions earned by Sales Representative)
in the event that Biosystems rejects all or part of any order, if
Biosystems fails to or is unable to deliver BIOSYSTEMS PRODUCTS
against any order, or if MANUFACTURER(S) refuse to pay
Biosystems or deduct payments from Biosystems on orders.
6.1.2.6. PURCHASE ORDERS. The Sales Representative must collect a
purchase order within twenty (20) business days of each surgery in
order to earn commission on that surgery.
6.1.2.7. SPECIAL PROMOTIONAL SALES. Biosystems may, in the
exercise of its sole and absolute discretion, establish a change in the
commission rate(s) set forth in Exhibit A on special promotional sales
of BIOSYSTEMS PRODUCTS where Biosystems deems such
promotional sales to be necessary or desirable in the furtherance of its
business. Biosystems will provide Sales Representative with written
notice in advance of all such special promotional sales.
6.1.2.8. | RECORDS. Biosystems will keep and maintain accurate,
complete, and current books and records relating to commissions
earned by Sales Representative.
6.2. PAYMENT. Biosystems will make payments due to Sales Representative
pursuant to Section 6.1 in accordance with Biosystems’ applicable policies and
procedures. Such policies and procedures in effect on the effective date of this
Agreement provide for payment on or about the twenty-fourth (24%) day of the
month in which commissions have been paid to Biosystems by the
BIOSYSTEMS CUSTOMERS or MANUFACTURERS. Any payments
Biosystems receives from BIOSYSTEMS CUSTOMERS or
MANUFACTURERS after the twenty-second (22") of the month shall be
deemed received in the following month. Guaranteed Salary will be paid on or
about the twenty-fourth (24") day of each month. In the event Biosystems
changes its policies and procedures, Sales Representative agrees to accept
payments in accordance therewith; provided, however, that in no event will
Biosystems withhold payments of commissions or Guaranteed Salary to Sales
Representative beyond ninety (90) days after the time the commission or
Guaranteed Salary are earned by Sales Representative.
BENEFITSBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT
As a Biosystems employee, Sales Representative will receive the benefits listed in Exhibit
D. Biosystems reserves the sole and absolute discretion to modify, add to, and remove
benefits by way of addendum to Exhibit D signed by Biosystems’ President. Such
modification will not affect the enforceability of this Agreement or any provision hereof.
8. PERFORMANCE OBJECTIVES
Biosystems will establish reasonable quarterly and annual performance objectives for the
sale of BIOSYSTEMS PRODUCTS in the Territory in dollars and/or units, and by
BIOSYSTEMS PRODUCT type to be sold ("Performance Objectives"). The
Performance Objectives set forth in Exhibit C of this Agreement constitute the minimum
amount of sales of BIOSYSTEMS PRODUCTS in the Territory in units and/or dollars
that the Sales Representative commits to achieve during the period specified in Exhibit C.
Biosystems will establish new Performance Objectives on each anniversary of this
Agreement, and memorialize the new Performance Objectives by delivering a revised
Exhibit C to the Sales Representative.
9. ADDITIONAL BIOSYSTEMS PRODUCTS AND PERFORMANCE OBJECTIVES
Biosystems will establish new Performance Objectives for each new or materially
modified BIOSYSTEMS PRODUCTS that it, in its sole and absolute discretion, adds to
the BIOSYSTEMS PRODUCTS that Sales Representative is expected to sell during the
term of this Agreement. All new or materially modified BIOSYSTEMS PRODUCTS
will be added to this Agreement by way of an addendum to Exhibit A signed by a duly
authorized representative of Biosystems, and shall be deemed fully incorporated into this
Agreement. Performance Objectives for all new and materially modified BIOSYSTEMS
PRODUCTS added during the term of this Agreement shall be established by way of an
addendum to Exhibit C signed by a duly authorized representative of Biosystems, and
shall be deemed fully incorporated into this Agreement.
10. TERRITORY
Biosystems reserves the sole and absolute discretion to modify Sales Representative’s
Territory at any time during the term of this Agreement. If such modification(s) result in
a decrease in Sales Representative’s Monthly Base Pay, Biosystems will pay Sales
Representative on a monthly basis the difference between the Monthly Base Pay eamed
prior to and after modification of his/her Territory until such time as the Sales
Representative’s Monthly Base Pay is once again at the level it was at prior to the
modification of his/her Territory. “Monthly Base Pay” shall be calculated by determining
Sales Representative’s total salary and commissions (excluding benefits and any indirect
or deferred compensation) for the last four (4) full Biosystems’ fiscal quarters preceding
modification of his/her Territory and dividing that amount by twelve. In the event that
the Sales Representative has been employed less than four (4) full Biosystems’ fiscal
quarters, “Monthly Base Pay” shall be calculated by determining Sales Representative’s
total salary and commissions (excluding benefits and any indirect or deferred
compensation), determining the average monthly income, projecting an annualized
income on that basis, and dividing that amount by twelve.
Page 6BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT
11. BIOSYSTEMS PRODUCTS IN POSSESSION OR CONTROL OF SALES
REPRESENTATIVE
Frequently, Sales Representative will have in his/her possession or control
BIOSYSTEMS PRODUCTS belonging to Biosystems, MANUFACTURERS, or
BIOSYSTEMS CUSTOMERS. Sales Representative accepts full responsibility for such
products. Unless paid for by a BIOSYSTEMS CUSTOMER, Sales Representative will
reimburse Biosystems for items lost, stolen, or damaged (including the opening of sterile
products). Sales Representative agrees that the amount of any lost, stolen, or otherwise
damaged BIOSYSTEMS PRODUCTS, or products that are otherwise not returned or
accounted for, may be withheld from compensation due to the Sales Representative at any
time. Sales Representative will keep full and complete records of BIOSYSTEMS
PRODUCTS that is currently in or has been in his/her possession.
12. SAMPLES AND PROMOTIONAL MATERIALS
From time to time Biosystems may deliver to Sales Representative such items as samples,
models, literature, and instrumentation for use in promoting and selling BIOSYSTEMS
PRODUCTS. Except for items actually purchased by Sales Representative or delivered
by Sales Representative as unrestricted no-charge samples according to Biosystems’
specific instructions, Biosystems will retain all right, title, and interest in and to such
items and Sales Representative will hold them for Biosystems” benefit. Biosystems
reserves the right at any time to require Sales Representative to return any and all items to
which Biosystems retains title, and Sales Representative agrees to comply promptly with
such request. Upon request from Biosystems, Sales Representative will also return all
items which were actually purchased from Biosystems and which, at the time of such
request, are in the custody or possession of Sales Representative. Biosystems will credit
to Sales Representative the original purchase price less a reasonable amount for
depreciation. If Sales Representative fails or neglects to return such items upon
Biosystems’ request, Sales Representative consents to Biosystems deducting the
replacement cost of such items from any amounts Biosystems owes to Sales
Representative.
13. JUNIOR SALES REPRESENTATIVES
Sales Representative will not employ or appoint any person (“Junior Sales
Representative”) to engage in the sale of BIOSYSTEMS PRODUCTS in the Territory
without the prior written consent of Biosystems' President. Biosystems’ consent shall be
conditioned upon Junior Sales Representative’s execution of an agreement with
Biosystems.
14. CHANGES CONCERNING MANUFACTURERS AND BIOSYSTEMS
PRODUCTS
Biosystems retains the right to discontinue representing any MANUFACTURER and to
discontinue selling, soliciting sales, supporting, marketing, or promoting any
Page 7BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT .
BIOSYSTEMS PRODUCTS at any time during the term of this Agreement. Biosystems
further retains the right to change, substitute, or replace MANUFACTURER(S) and/or
BIOSYSTEMS PRODUCT(S), in whole or in part, at any time during the term of this
Agreement. Biosystems may modify this Agreement unilaterally to reflect such
discontinuation, substitution, and/or replacement by preparing and delivering to Sales
Representative addenda to Exhibits A and C of this Agreement, signed by Biosystems’
President. Such modifications, discontinuations, and/or replacements shall not affect the
enforceability of this Agreement, which shall remain in full force and effect in all respects
following such modifications, discontinuations, and/or replacements.
15. COMPLIANCE WITH LAWS AND REGULATIONS
Each party will comply with all pertinent provisions of the Federal Food, Drug, and
Cosmetic Act, as the same may be amended from time to time, and with all regulations
promulgated thereunder, as well as any and all laws, regulations, and ordinances.
16. SALES REPRESENTATIVE’S REPORTS AND RECORDS
16.1. WEEKLY REPORTS. Sales Representative is obligated to submit reports
by e-mail to Biosystems’ President and Sales Representative’s sales manager
every Sunday before 7:00 p.m. in the form attached as Exhibit E.
16.2. PERIODIC REPORTS. In addition to those reports required under
Section 16.1, Sales Representative may be required periodically to prepare and
submit to Biosystems written reports as directed by Biosystems’ management.
16.3. RECORDS PERTAINING TO BIOSYSTEMS PRODUCTS. Sales
Representative will prepare and maintain accurate, complete, and current books
and records accounting for all BIOSYSTEMS PRODUCTS consigned to
BIOSYSTEMS CUSTOMERS in his/her Territory, or otherwise in Sales
Representative’s possession, custody, or control. For consigned product, such
records shall include the names of consignees, the quantities consigned, the
catalogue numbers of BIOSYSTEMS PRODUCTS consigned, the lot numbers,
and the terms of each consignment. For all other product, such records shall
include the names of the MANUFACTURERS, the catalogue numbers of
BIOSYSTEMS PRODUCTS, and the lot numbers. Sales Representative will
give the representatives of Biosystems access to such records upon request.
17..CONFLICTS OF INTEREST
Sales Representative covenants that, during the term of this Agreement he/she will not
engage directly or indirectly in any activity which conflicts with Sales Representative's
faithful performance of the services, covenants, commitments, and obligations undertaken
and to be performed pursuant to this Agreement. Without limiting the generality of the
foregoing, Sales Representative expressly agrees that he/she will not engage or assist, or
induce others to engage or assist, directly or indirectly, in the development, production,
sale, offer for sale, service, or representation of aay COMPETITIVE PRODUCTS.
Page 8BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT
18. NON DISCLOSURE OF CONFIDENTIAL INFORMATION
OBLIGATION TO MAINTAIN CONFIDENTIALITY. From time to
time the Sales Representative will have access to certain confidential information
relating to Biosystems, and/or each MANUFACTURER (“Confidential
Information”), Confidential Information means any information relating to
Biosystems or any MANUFACTURER’S business , including a formula, pattern,
compilation, program, device, method, technique, system, plan, or process, that
Sales Representative learns or develops during the course of Sales
Representative’s employment by Biosystems that derives independent economic
value from not being generally known, or readily ascertainable by proper means,
by other persons who can obtain economic value from its disclosure or use.
Confidential Information includes but is not limited to trade secrets and
inventions and, without limitation, may relate to research; development;
experiments; clinical investigations; clinical trials; clinical and product
development results and data; engineering; product specifications; computer
programs; computer software; hardware configurations; manufacturing processes;
compositions; algorithms; know-how; methods; machines, management systems
and techniques; strategic plans; long-range plans; operating plans; organizational
plans; financial plans; financial models; financial projections; nonpublic financial
and sales information; business, financial, planning and strategic systems and
methods; operating systems; information systems; acquisition and divestiture
goals, plans, strategies or targets; regulatory strategies, plans and approaches;
quality control systems and techniques; patent and intellectual property strategies,
plans and approaches; vendor and customer data, employee and personnel data;
human resources goals, plans and strategies; human resource management
techniques; sales volume; pricing strategies; sales and marketing plans and
strategies; contracts and bids; any business management techniques that are being
planned, developed, utilized or executed by Biosystems or any
MANUFACTURER; customer lists; information concerning the internal
organization of Biosystems; the names and responsibilities of management,
supervisory, and technical employees; compensation plans, including but not
limited to commission rates; manufacturing activities; technical information
concerning BIOSYSTEMS PRODUCTS (except as contained in marketing or
promotional literature furnished to Sales Representative for distribution);. Sales
Representative covenants that he/she wil! hold all Confidential Information in
strict confidence and in trust for Biosystems’ benefit, and will not at any time
during the term of this Agreement or at any time thereafter disclose any
Confidential Information, in whole or in part, to any third party, or use
Confidential Information for his/her own benefit or for the benefit of any third
party without the prior written consent of Biosystems’ President.
18.2. Upon Biosystems’ request or upon expiration or termination of this
Agreement, whether or not separate written demand has been made, Sales
Representative will return promptly all Confidential Information to Biosystems to
the extent held by Sales Representative in written, graphic, or other tangibleBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT
form, and all copies, summaries, notes, and other documents pertaining thereto
made by Sales Representative.
18.3.
The Sales Representative acknowledges that money damages would be an
inadequate remedy for the breach of any of the provisions of Section 18 of this
Agreement, and accordingly, Biosystems, with or without pursuing any remedy
for damages, shall be entitled to an immediate injunction restraining the Sales
Representative from breaching or continuing to breach the same. This remedy is
not exclusive and shall be in addition to any other remedy available to
Biosystems in law or equity.
18.4,
The provisions of Section 18 of this Agreement will survive expiration or
termination of the Agreement and remain in effect unless and until Biosystems
agrees in writing to terminate it.
19. TERM AND TERMINATION
19.1,
EFFECTIVE DATE. This Agreement will become effective as of the date
first written above and will continue until December 31, 2020 when it will
automatically expire, or else until terminated pursuant to Section 19.2, whichever
is earlier.
19.2,
TERMINATION.
19.2.1, BY BIOSYSTEMS. This Agreement may be terminated by Biosystems
Page 10
upon written notice upon the occurrence of any of the following events:
19.2.1.1. IfSales Representative fails to meet the quarterly Performance
Objectives listed in Exhibit C for any BIOSYSTEMS PRODUCT for
two consecutive calendar quarters, in which event termination may be
immediate upon notice; or
19.2.1.2. If Sales Representative fails to cure any material breach of any
covenant, commitment, or obligation under this Agreement within ten
(10) business days after receipt of written notice from Biosystems of
such breach; provided, however, that if the breach is not willful, and is
not a result of gross neglect by Sales Representative, then the cure
period will be extended for a time which is reasonable in the
circumstances, provided Sales Representative promptly institutes the
efforts necessary to effect a cure within such reasonable time; or
19.2.1.3. If Sales Representative commits a breach of a material covenant,
commitment, or obligation under this Agreement which is of such a
nature as not to permit any readily realizable cure, including but not
limited to a breach of Sales Representative's covenants respecting
Confidential Information or of Sales Representative's covenantsBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT
respecting Conflicts of Interest, termination may be immediate upon
notice; or
19.2.1.4. If Sales Representative commits a crime or an act of fraud or
misrepresentation that materially impacts on his/her performance or
Preview
- COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT BIOSYSTEMS OF NEW ENGLAND, INC., ) ) - ) Paint dtaesttesr ne.) vil Action No , ros ESTA SPURS, 17-309. ) BYRON RHODES, OCT 23 2017 ) of ) Defendant. FEY Oars \ AFFIDAVIT OF PHILLIP T. MEIKLE, II Phillip T. Meikle, II, being duly sworn, deposes and states as follows: 1. | am the founder and President of plaintiff Biosystems of New England, Inc. (“Biosystems”), a Massachusetts corporation. Biosystems is an independent distributor for Stryker Spine, a division of Howmedica Osteonics Corporation (“Stryker”) and certain manufacturers of complementary products. Stryker develops, manufactures and sells spinal implants, instruments and other products used in the surgical treatment of spinal disorders and spinal trauma by neurosurgeons and orthopedic surgeons. These products include metal cages and screws for cervical and thoracolumbar spinal surgeries, interbody cages, including the state-of-the-art Tritanium cage, the Aero-C cervical interbody fixation system and Vitoss, a full line of biologic products to promote soft tissue repair. Biosystems is Stryker'’s exclusive distributor in all of New England and upstate New York. | make this Affidavit in support of Biosystems’ Motion for Preliminary Injunction through which Biosystems seeks to enforce the non-competition and non-solicitation restrictions in its Sales Employee Agreement (“SEA”) with ByronRhodes (for a period of 24 months and within a 100-mile radius of his Biosystems territory in New Haven, New London, Bridgeport, and Derby, Connecticut). A true and accurate copy of the current SEA is attached hereto as Exhibit A. 2. | founded Biosystems as a one-man operation in 1992 and, over the past 25 years, | have overseen Biosystems’ development into a business with 86 employees and a network of neurosurgeon and orthopedic surgeon customers who use products distributed by Biosystems. (In 2016, |, together with several partners, formed Biosystems of Chesapeake, LLC, a Massachusetts limited liability corporation, which became Stryker's exclusive distributor in Maryland, Virginia, Southern Delaware, and the District of Columbia. Biosystems of Chesapeake has 15 employees.) Biosystems principals and employees pride themselves on providing the highest level of knowledge regarding the capabilities and functionality of the products we sell and the best possible service and support to our surgeon customers. The Sales Process in Spinal Implant Industry and Customer Good Will 3. The sale of spinal implants and related products is a technical and highly competitive business. It is built, in part, on relationships. The quality of support and service provided by a company can greatly impact a surgeon’s decision as to which company's products to use. Surgery on the spine is, for most patients, a life altering event. It requires the complete concentration of the surgeon, often for hours on end, and sometimes on a moment's notice. The surgeon requires the support of a team of other doctors, nurses, product representatives, and other administrative staff and must have absolute confidence that each member of the surgery team will execute his or her responsibilities as required no matter what the circumstances.4. In most cases, the individual surgeon determines which manufacturer's products to use in a particular surgery; sales efforts, therefore, are made directly with surgeons. The field sales personnel act as the chief point of contact for the surgeon as well as the hospital for the sale. When a surgery is scheduled, it is the role of the salesperson to ensure that the required products and any necessary instrumentation are delivered, sterilized, and available for the surgery on time. Nearly all surgeries utilizing spinal products are attended by sales personnel who are available throughout the surgery to answer questions about the products or address any issues with respect to the devices, instrumentation, or ancillary products. Biosystems’ sales representatives are charged with ensuring that the surgeon and other medical personnel in their assigned territory know and understand that they will be available and responsive with regard to any needs, questions or other matters concerning the products they represent. Spinal surgery can be very lengthy and many surgeons perform multiple surgeries every week. As a result, spinal sales personnel spend a great deal of time with their surgeon customers and hospital staff, and develop strong personal relationships with them. This sales process is utilized across the industry. 5. The sales personnel are the public face of Biosystems to the hospital and surgeon customers, and it is vital to the sales process that hospital staff and the surgeon customers develop and maintain confidence and trust in their sales representative. Biosystems’ sales personnel are expected to develop, maintain and enhance Biosystems’ good will with its surgeon customers. A sales representative who has developed a relationship of trust with his customers can readily harm the good will associated with Biosystems products.Confidential Information 6. Biosystems also regularly shares with its sales representatives extensive detailed and confidential information concerning sales results, performance, sales strategies, new products, and intelligence regarding competitors’ results and strategies. This type of information is shared on a territory and company-wide basis. During his three plus years of employment with Biosystems, Mr. Rhodes has had extensive access to Biosystems’ confidential business information including without limitation information concerning Biosystems’ sales network, customer information, customer preference, pricing and sales strategies, selling efforts, surgical techniques for all products in pdf format, and obstacles to sales and business development. Importantly, all Biosystems employees, including Mr. Rhodes, have access to our confidential password-protected Intranet which lists all scheduled surgeries Company-wide and the products that will be used, with the exception of surgeries at locations with consigned products. 7. In the course of their work, sales representatives acquire extensive confidential information about the individual surgeon’s purchasing volumes and patterns, the performance of the products in particular surgeries or with particular surgical techniques, the strengths and limitations of the product in particular procedures, and the individual surgeon's product design preferences. Sales representatives also know why a surgeon chooses the product. Training, Education and Support 8. Biosystems invests substantial resources in developing and training its sales personnel and maintaining customer relationships and goodwill. The highly technical nature of the business requires that both sales representatives and surgeoncustomers be educated in the latest aspects of the products as they apply to the full range of surgeries and surgical techniques. Sales personnel are provided extensive clinical and scientific instruction on the products and on the surgical procedures and techniques for spinal procedures. The company invests in and provides access to cadaver labs to both sales representatives and surgeon customers for purposes of training on the use of its products. Biosystems also provides educational opportunities for surgeons on clinical and technical issues. At company sales meetings, sales personnel have additional opportunities to gain clinical and technical knowledge, at the expense of the company, so that they are prepared to serve the surgeon customers employing a variety of surgical techniques. 9. Biosystems, sometimes in conjunction with Stryker or other manufacturers it represents, provides extensive training to all sales representatives and sales associates, including Mr. Rhodes. When he began working at Biosystems in June of 2014, Mr. Rhodes attended a two-day intensive orientation and training program at Biosystems’ home office in Waltham, Massachusetts. He then attended Sales Associate Training Sessions (Instrument and Implant Review) for Stryker products in October, November, and December of 2014 in Connecticut. Throughout each year, Mr. Rhodes attended or participated in numerous training events and sales meetings in various locations, including a two-week event in New Jersey in 2016. Mr. Rhodes also participated in quarterly meetings with the sales team in his region. 10. Periodically, Mr. Rhodes came to Massachusetts to attend work-related meetings and events. For instance, on July 14, 2017, Mr. Rhodes came to Boston to attend a training session hosted by Stryker/Biosystems and went to a Red Sox gamewith one of his surgeon customers after the session. He participated in a CNS medical event program in Boston and has also accompanied other surgeons to training events in Boston. Biosystems’ Employment Of Byron Rhodes 41. Onor about June 9, 2014, Mr. Rhodes began working for Biosystems as a sales associate covering New Haven, Bridgeport, and Derby, Connecticut. At that time, Mr. Rhodes was approximately 40 years of age with a high schoo! education and was working as a “scrub tech” at Yale New Haven Hospital. He had never worked in spinal implant/medical device sales previously. At the time of his hiring, Mr. Rhodes thanked me personally for the opportunity to enter the business. 12. In connection with his hiring, Mr. Rhodes signed a Sales Employee . Agreement with Biosystems including restrictive covenants identical to those in the current SEA. Upon Mr. Rhodes’ hiring, Biosystems paid him a starting salary of $72,500.00 which, | understand, was a raise of approximately $32,500.00 above his salary after working as a “scrub tech” for 15 years. 13. When he was offered a promotion to the position of Sales Representative on or about September 1, 2016, Mr. Rhodes demanded, and received, significant raises from Biosystems and signed a new SEA with Biosystems. New London was added to his territory at that time. 14. For calendar year 2015, Mr. Rhodes received salary and commission compensation from Biosystems totaling $87,151.00. For calendar year 2016, he received salary and commission totaling $102,355.00. Through September, 2017, Biosystems has paid Mr. Rhodes a total of $95,729.00 in salary and commission.Under his current SEA, at Mr. Rhodes’ insistence, he was guaranteed income of at least $110,000.00 for 2017, $125,000.00 for 2018 and $140,000.00 for 2019. 15. In every year that he worked for Biosystems, Mr. Rhodes received guaranteed income that was far in excess of the sales commissions he could have earned. For instance, he received guaranteed annual income of $110,000.00 from Biosystems under the SEA in 2017; his earned commissions through his termination date of October 18, 2017 were only $49,000.00. 16. The SEA sets forth the following defined terms: 1.2. 1.3. 1.4. 1.5. BIOSYSTEMS PRODUCTS means any goods, products, product lines, devices, tissue, and services sold, marketed, promoted, or supported and/or serviced by Biosystems or any of its employees during the term of this Agreement. COMPETITIVE PRODUCT means any goods, products, product lines, devices, tissue, and services, and each and every component thereof, produced manufactured, marketed, promoted, sold, or serviced, or that are in development or the subject of research by anyone other than MANFACTURER(S) that are the same or similar, perform any of the same or similar functions, may be substituted for, or are intended or used for any of the same purposes as a BIOSYSTEMS PRODUCT. CONFLICTING ORGANIZATION means any person (including the Sales Representative) or entity, and any parent, subsidiary, partner, or affiliate (regardless of their legal form) of any person or entity, that engages in, or is about to become engaged in the development, design, production, manufacture, promotion, marketing, sale, support, or service of a COMPETITIVE PRODUCT. MANUFACTURER means each and every manufacturer or other business entity or person whose products and/or services Biosystems markets, promotes, sells, or services during all or any portion of the time this Agreement is in effect, and all of their parents, subsidiaries, or affiliated corporations, and their successors and assigns.17. As set forth in more detail below, Biosystems protects its confidential information and customer good will through, among other things, non-competition and non-solicitation covenants with its sales representatives. Specifically, the SEA provides in relevant part as follows: 18. NON DISCLOSURE OF CONFIDENTIAL INFORMATION 18.1. OBLIGATION TO MAINTAIN CONFIDENTIALITY. From time to time the Sales Representative will have access to certain confidential information relating to Biosystems and/or each MANUFACTURER (“Confidential Information”). Confidential Information means any information relating to Biosystems or any MANUFACTURER'S business, including a formula, pattern, compilation, program, device, method, technique, system, plan or process, that Sales Representative learns or develops during the course of Sales Representative’s employment by Biosystems that derives independent economic value form not being generally known, or readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use. Confidential Information includes but is not limited to trade secrets and inventions and, without limitation, may relate to research; development; experiments; clinical investigations; clinical trials; clinical and product development results and data; engineering; product specifications; computer programs; computer software; hardware configurations; manufacturing processes; compositions; algorithms; know-how; methods; machines; management systems and techniques; strategic plans; long- range plans; operating plans; organizational plans; financial plans; financial models; financial projections; nonpublic financial and sales information; business, financial, planning and strategic systems and methods; operating systems; information systems; acquisition and divestiture goals, plans, strategies or targets; regulatory strategies, plans and approaches; quality control systems and techniques; patent and intellectual property strategies, plans and approaches, vendor and customer data, employee and personnel data; human resources goals, plans and strategies; human resource management techniques; sales volume; pricing strategies; sales and marketing plans and strategies; contract sand bids; any business management techniques that are being planned, developed, utilized or executed by Biosystems or any MANUFACTURER; customer lists; information concerning the internal organization of Biosystems; the names and responsibilities of management, supervisory, and technical employees; compensation plans, including but not limited to commission rates; manufacturing activities; technical information concerning BIOSYSTEMS PRODUCTS (except as contained in marketing or promotional literature furnished to SalesRepresentative for distribution). Sales Representative covenants that he/she will hold all Confidential Information in strict confidence and in trust for Biosystems’ benefit, and will not at any time during the term of this Agreement or at any time thereafter disclose any Confidential Information, in whole or in part, to any third party, or use Confidential Information for his/her own benefit or for the benefit of any third party without the prior written consent of Biosystems’ President. 18.2. Upon Biosystems’ request or upon expiration or termination of this Agreement, whether or not separate written demand has been made, Sales Representative will return promptly all Confidential Information to Biosystems to the extent held by Sales Representative in written, graphic, or other tangible form and all copies, summaries, notes, and other documents pertaining thereto made by Sales Representative. 18.3. The Sales Representative acknowledges that money damages would be an inadequate remedy for the breach of any of the provisions of Section 18 of this Agreement, and accordingly, Biosystems, with or without pursuing any remedy for damages, shall be entitled to an immediate injunction restraining the Sales Representative from breaching or continuing to breach the same. This remedy is not exclusive and shall be in addition to any other remedy available to Biosystems in law or equity. 20. POST-EMPLOYMENT RESTRICTIONS 20.1. During the term of this Agreement and for the first twenty-four (24) months following its termination or expiration, the Sales Representative agrees that he/she will not be employed or affiliated in any capacity by, become an independent contractor or consultant for, or perform any services fora CONFLICTING ORGANIZATION in connection with or relating to a COMPETITIVE PRODUCT within a One-Hundred (100) mile radius of your territory. 20.3 Sales Representative agrees that at all times while employed by Biosystems, and for twenty-four (24) months following the termination or expiration of this Agreement, Sales Representative will not solicit, cause to be solicited, or participate in or promote the solicitation of any person to terminate that person’s employment with Biosystems, or to breach that person’s Agreement with Biosystems. 20.4. The Sales Representative recognizes that the foregoing territorial and time limitations are reasonable and properly required for the adequate protection of the business of Biosystems, and that in the event that any such territorial or time limitation is found to be unreasonable by a court of competent jurisdiction, then the Sales Representative agrees and submitsto the reduction of either said territorial or time limitation as the court or finder of fact determines. 20.5. In the event that the Sales Representative shall be in violation of Section 20 of this Agreement, then the time limitation stated herein shall be extended for a period of time equal to the period of time during which the violation persists. In the event that Biosystems seeks injunctive relief based on a perceived violation of Section 20 of this Agreement, then the length of the non-competition/non-solicitation period shall be extended for a period of time equal to the pendency of such proceedings, including all appeals. 20.6. Sales Representative agrees to provide Biosystems at the time of termination or expiration of this Agreement the identity of any new employer, the job title of Sales Representative's new position, and a description of any services to be rendered to that employer. In addition, Sales Representative agrees to respond within ten (10) days to any written request from Biosystems for further information concerning Sales Representative’s work activities sufficient to provide Biosystems with assurances that Sales Representative is not violating any of the obligations Sales Representative has undertaken in this Agreement. Sales Representative further agrees to furnish said information to Biosystems during the twenty-four (24) month period following termination or expiration of this Agreement. 20.7. The Sales Representative acknowledges that money damages would be an inadequate remedy for the breach of any of the provisions of Section 20 of this Agreement, and accordingly Biosystems, with or without pursuing any remedy for damages, shall be entitled to an immediate injunction restraining the Sales Representative from breaching or continuing to breach the same. This remedy is not exclusive and shall be in addition to any other remedy available to Biosystems in law or equity. 23. GOODWILL Sales Representative acknowledges that Biosystems has and owns the goodwill in the Sales Representative's relationships with BIOSYSTEMS CUSTOMERS that Sales Representative maintains or develops in the course of the scope of the Sales Representative’s employment by Biosystems. If Sales Representative owned goodwill in customer relationships when Sales Representative commenced employment with Biosystems, Sales Representative assigns any and all such goodwill to Biosystems, and Biosystems shall become the owner of such goodwill. 1018. Mr. Rhodes has made conflicting statements to various of his co-workers about his work responsibilities and territory at JD Spine/Globus. He has said that he will be working in his Biosystems’ territory. He has said that he will be selling metal implants and biologics. He has said that he will be working in Hartford and New Britain, Connecticut. And he has said that he will be working as a “robotics specialist” for Globus. 19. On October 17, 2017, I sent Mr. Rhodes a letter by email and by federal express, requesting the name of his new employer and information regarding his new position pursuant to 120.6 of the SEA. | also asked that he sign a Certification that he had returned or destroyed all Confidential Information belonging to Biosystems and that he had not disclosed that information to any third party. A copy of my letter is attached hereto as Exhibit B. 20. Mr. Rhodes did not respond to my letter. Instead, by email on the night of October 19", Mr. Rhodes stated: “My current employer will get back to you about my job details.” At the same time, Mr. Rhodes returned the signed Certification to me. A copy of Mr. Rhodes’ email with the Certification is attached hereto as Exhibit C. 21. — | learned through LinkedIn early on the morning of October 20, 2017 that Mr. Rhodes has accepted a position as the “Excelsius GPS navigation systems specialist at Globus Medical.” A copy of the Linkedin listing is attached hereto as Exhibit D. The Globus Excelsius Robot was recently approved by the FDA, used for spinal navigation/intra-operative placement of pedicle screws. Stryker sells a Spine Navigation System which competes directly with the Globus product. Biosystems works closely with Stryker to place the spine navigation units in hospitals and Biosystems pays 11for a substantial portion of the cost (hundreds of thousands of dollars) of placing those units. Biosystems’ personnel market, support and service those units and are present for every surgery in our territory using the Spine Navigation System. Mr. Rhodes’ territory remains undisclosed. 22. Tomy understanding, Mr. Rhodes has no experience, background or expertise in robotic technology. 23. The purpose of the Spine Navigation System and the Globus Robot system is the same: to place pedicle screws. SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 20" DAY OF OCTOBER, 2017 Phillip T. Meikle, II 12BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT ("Agreement") DATE: September 1, 2016 BETWEEN: Biosystems of New England, Inc., a Massachusetts Corporation with its usual place of business at 1440 Main Street Waltham, MA 02451(the “Office”), including without limitation the successors, assigns, parents, and affiliates of Biosystems, hereinafter referred to as "Biosystems," AND: Byron Rhodes a resident of Connecticut residing at 20 Ridgewood Court, North Haven, CT 06473 referred to as "Sales Representative." WHEREAS: Biosystems wishes to employ Sales Representative to market, promote, sell, and/or service BIOSYSTEMS PRODUCTS covered by this Agreement and Sales Representative wishes to market, promote, sell, and/or service BIOSYSTEMS PRODUCTS pursuant to the terms of this Agreement; NOW, THEREFORE, in consideration of the covenants stated herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Sales Representative and Biosystems agree as follows: 1. DEFINITIONS The terms defined below have the defined meaning whenever used in this Agreement: 1.1. BIOSYSTEMS CUSTOMER means any person, entity, or institution to whom Sales Representative, or persons under Sales Representative’s management, direction, or supervision, sold, solicited sales, supported, marketed, or promoted BIOSYSTEMS PRODUCTS during the term of this Agreement. Without limiting the generality of the foregoing, the term BIOSYSTEMS CUSTOMER includes all employees, agents, or representatives, and any other persons who control, direct, or influence purchasing decisions of any such person, entity, or institution. 1.2. BIOSYSTEMS PRODUCTS means any goods, products, product lines, devices, tissue, and services sold, marketed, promoted, or supported and/or serviced by Biosystems or any of its employees during the term of this Agreement. 1.3. COMPETITIVE PRODUCT means any goods, products, product lines, devices, tissue, and services, and each and every component thereof, produced, manufactured, marketed, promoted, sold, or serviced, or that are in development or the subject of research by anyone other than MANUFACTURER(S) that are the same or similar, perform any of the same or similar functions, may beBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT 1.4, 15. substituted for, or are intended or used for any of the same purposes as a BIOSYSTEMS PRODUCT. CONFLICTING ORGANIZATION means any person (including the Sales Representative) or entity, and any parent, subsidiary, partner, or affiliate (regardless of their legal form) of any person or entity, that engages in, or is about to become engaged in, the development, design, production, manufacture, promotion, marketing, sale, support, or service of a COMPETITIVE PRODUCT. MANUFACTURER means each and every manufacturer or other business entity or person whose products and/or services Biosystems markets, promotes, sells, or services during all or any portion of the time this Agreement is in effect, and all of their parents, subsidiaries, or affiliated corporations, and their successors and assigns. 2, APPOINTMENT OF SALES REPRESENTATIVE Subject to the provisions of this Agreement, Biosystems hereby employs Sales Representative and Sales Representative hereby accepts employment to market, promote, sell, solicit sales of, support, and service the BIOSYSTEMS PRODUCTS now or hereafter listed on Exhibit A, with responsibility for the geographical area and/or medical institutions now or hereafter listed on Exhibit B (hereinafter referred to as the “Territory") from the date of this Agreement up to and including December 31, 2019. 3. SALES REPRESENTATIVE'S OBLIGATIONS In addition to all other covenants, duties, and obligations set forth in this Agreement, Sales Representative agrees: 3.1, 3.2. 3.3. 3.4, 3.5. Page 2 To promote, market, sell, solicit sales of, support, and service BIOSYSTEMS PRODUCTS throughout the Territory vigorously and with best efforts; To use his/her best efforts to meet or exceed the quarterly and annual Performance Objectives established by Biosystems pursuant to Section 8; To refrain from making any representations or warranties concerning BIOSYSTEMS PRODUCTS, except those representations and warranties authorized in writing by Biosystems or by MANUFACTURER(S); To comply with all applicable laws and regulations in force in the Territory, and to conduct all of his/her business activities hereunder in accordance with generally recognized ethical standards; To render reasonable assistance to Biosystems, at Biosystems’ request, in defense of any and all product liability claims;BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT 3.6. To refrain from disparaging BIOSYSTEMS PRODUCTS or the MANUFACTURER(S), or from otherwise injuring the reputation, good standing, and good will of Biosystems during and after employment with Biosystems; 3.7. To assist Biosystems, on request, in ascertaining the credit standing of, and in collecting receivables from, aay BIOSYSTEMS CUSTOMER(S). 4. SALES AND MARKETING ASSISTANCE In order to assist Sales Representative in fostering the promotion and sale of BIOSYSTEMS PRODUCTS, Biosystems will provide the following programs, materials, services, and assistance to the extent that it deems productive: 4.1. Advertising, sales promotion aids, displays, catalogues, literature, convention assistance, new product information, and promotional activities; 4.2. Sales incentive programs; and 4.3. Technical assistance through sales seminars, meetings, and training programs. 5. QUOTATIONS, INVOICES, AND CREDITS 5.1. QUOTATIONS. Sales Representative will make quotations with respect to the sales of BIOSYSTEMS PRODUCTS only as directed or approved by Biosystems’ management, 5.2. INVOICES. Biosystems or MANUFACTURER(S) will invoice BIOSYSTEMS CUSTOMERS for BIOSYSTEMS PRODUCTS they purchase. Sales Representative will not invoice BIOSYSTEMS CUSTOMERS unless expressly requested to do so by Biosystems in writing. Payments against invoices are to be made directly to Biosystems or the MANUFACTURER(S), without intervention by Sales Representative unless expressly requested in writing by Biosystems in each instance. If Sales Representative receives any payment from a BIOSYSTEMS CUSTOMER, Sales Representative will immediately forward the entire amount of such payment to Biosystems. 5.3. CREDITS. Biosystems will have the sole right and absolute discretion to issue credits, offer discounts and allowances, and accept returns of BIOSYSTEMS PRODUCTS. 6. INCOME AND BENEFITS 6.1. RATE. As Sales Representative's sole compensation for his/her performance under this Agreement, Biosystems will pay to Sales Representative the sum of all amounts due pursuant Sections 6.1.1 and 6.1.2. Page 3BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT Page 4 6.1.1. From September 1, 2016 through December 31, 2017, income will be guaranteed at $9,166.66 per month or $110,000.00 annually. From January 1, 2018 through December 31, 2018, income will be guaranteed at $10,416.66 per month or $125,000.00 annually. From January 1, 2019 through December 31, 2019, income will be guaranteed at $11,666.66 per month or $140,000.00 annually. Earnings will be calculated utilizing the ledger system meaning that on monthly commission statements, $48,000 salary annually or $4,000 per month plus sales will be referenced and commissions earned will be calculated based on the commission percentages referenced in Exhibit A. A ledger will be maintained showing the income paid versus commission earned. If by utilizing a $48,000 salary plus commissions, earnings would be greater than the guarantee referenced above for each timeframe referenced then salary plus commission shall be paid. 6.1.2. Commission Rate. 6.1.2.1, Biosystems will establish the commission rate applicable to any new BIOSYSTEMS PRODUCT or materially modified BIOSYSTEMS PRODUCT which Biosystems includes in Exhibit A by way of an addendum to Exhibit A signed by a duly authorized representative of Biosystems. 6.1.2.2. | The commission rate(s) specified in Exhibit A is predicated substantially on the amounts every MANUFACTURER has presently agreed to pay Biosystems for marketing, promoting, selling, soliciting sales of, supporting, or servicing BIOSYSTEMS PRODUCTS. In the event a MANUFACTURER changes the commission structure or amounts it has agreed to pay Biosystems at any time during the term of this Agreement, Biosystems has the right to modify the commission rate(s) specified in Exhibit A concomitant with such change(s) by delivering an addendum to Exhibit A to Sales Representative stating his/her revised commission structure. 6.1.2.3. In the event BIOSYSTEMS CUSTOMERS fail to pay shipping or freight charges on orders attributable to Sales Representative, Biosystems reserves the right to deduct those amounts from compensation due to the Sales Representative. 6.1.2.4. If Biosystems books expenses, credits, and discounts listed in Section 6.1.2.1(i) through (v) and 6.1.2.3. after the payment to the Sales Representative of commissions against which those expenses, credits, and discounts should have been charged, Biosystems reserves the right to charge those expenses, credits, and discounts against Sales Representative’s future commissions. In the event that Biosystems has paid Sales Representative commissions on sales to a BIOSYSTEMS CUSTOMER whose account is subsequently entitled to a credit, forBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT returns or otherwise, Biosystems will be entitled to a reimbursement from Sales Representative to the extent of the commission paid, and may set off such amounts against future commissions. 6.1.2.5. | NO LIABILITY FOR REJECTION OR NON-PAYMENT OF ORDER. Biosystems will have no liability whatsoever to Sales Representative for commission payments or otherwise (and may deduct amounts paid from future commissions earned by Sales Representative) in the event that Biosystems rejects all or part of any order, if Biosystems fails to or is unable to deliver BIOSYSTEMS PRODUCTS against any order, or if MANUFACTURER(S) refuse to pay Biosystems or deduct payments from Biosystems on orders. 6.1.2.6. PURCHASE ORDERS. The Sales Representative must collect a purchase order within twenty (20) business days of each surgery in order to earn commission on that surgery. 6.1.2.7. SPECIAL PROMOTIONAL SALES. Biosystems may, in the exercise of its sole and absolute discretion, establish a change in the commission rate(s) set forth in Exhibit A on special promotional sales of BIOSYSTEMS PRODUCTS where Biosystems deems such promotional sales to be necessary or desirable in the furtherance of its business. Biosystems will provide Sales Representative with written notice in advance of all such special promotional sales. 6.1.2.8. | RECORDS. Biosystems will keep and maintain accurate, complete, and current books and records relating to commissions earned by Sales Representative. 6.2. PAYMENT. Biosystems will make payments due to Sales Representative pursuant to Section 6.1 in accordance with Biosystems’ applicable policies and procedures. Such policies and procedures in effect on the effective date of this Agreement provide for payment on or about the twenty-fourth (24%) day of the month in which commissions have been paid to Biosystems by the BIOSYSTEMS CUSTOMERS or MANUFACTURERS. Any payments Biosystems receives from BIOSYSTEMS CUSTOMERS or MANUFACTURERS after the twenty-second (22") of the month shall be deemed received in the following month. Guaranteed Salary will be paid on or about the twenty-fourth (24") day of each month. In the event Biosystems changes its policies and procedures, Sales Representative agrees to accept payments in accordance therewith; provided, however, that in no event will Biosystems withhold payments of commissions or Guaranteed Salary to Sales Representative beyond ninety (90) days after the time the commission or Guaranteed Salary are earned by Sales Representative. BENEFITSBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT As a Biosystems employee, Sales Representative will receive the benefits listed in Exhibit D. Biosystems reserves the sole and absolute discretion to modify, add to, and remove benefits by way of addendum to Exhibit D signed by Biosystems’ President. Such modification will not affect the enforceability of this Agreement or any provision hereof. 8. PERFORMANCE OBJECTIVES Biosystems will establish reasonable quarterly and annual performance objectives for the sale of BIOSYSTEMS PRODUCTS in the Territory in dollars and/or units, and by BIOSYSTEMS PRODUCT type to be sold ("Performance Objectives"). The Performance Objectives set forth in Exhibit C of this Agreement constitute the minimum amount of sales of BIOSYSTEMS PRODUCTS in the Territory in units and/or dollars that the Sales Representative commits to achieve during the period specified in Exhibit C. Biosystems will establish new Performance Objectives on each anniversary of this Agreement, and memorialize the new Performance Objectives by delivering a revised Exhibit C to the Sales Representative. 9. ADDITIONAL BIOSYSTEMS PRODUCTS AND PERFORMANCE OBJECTIVES Biosystems will establish new Performance Objectives for each new or materially modified BIOSYSTEMS PRODUCTS that it, in its sole and absolute discretion, adds to the BIOSYSTEMS PRODUCTS that Sales Representative is expected to sell during the term of this Agreement. All new or materially modified BIOSYSTEMS PRODUCTS will be added to this Agreement by way of an addendum to Exhibit A signed by a duly authorized representative of Biosystems, and shall be deemed fully incorporated into this Agreement. Performance Objectives for all new and materially modified BIOSYSTEMS PRODUCTS added during the term of this Agreement shall be established by way of an addendum to Exhibit C signed by a duly authorized representative of Biosystems, and shall be deemed fully incorporated into this Agreement. 10. TERRITORY Biosystems reserves the sole and absolute discretion to modify Sales Representative’s Territory at any time during the term of this Agreement. If such modification(s) result in a decrease in Sales Representative’s Monthly Base Pay, Biosystems will pay Sales Representative on a monthly basis the difference between the Monthly Base Pay eamed prior to and after modification of his/her Territory until such time as the Sales Representative’s Monthly Base Pay is once again at the level it was at prior to the modification of his/her Territory. “Monthly Base Pay” shall be calculated by determining Sales Representative’s total salary and commissions (excluding benefits and any indirect or deferred compensation) for the last four (4) full Biosystems’ fiscal quarters preceding modification of his/her Territory and dividing that amount by twelve. In the event that the Sales Representative has been employed less than four (4) full Biosystems’ fiscal quarters, “Monthly Base Pay” shall be calculated by determining Sales Representative’s total salary and commissions (excluding benefits and any indirect or deferred compensation), determining the average monthly income, projecting an annualized income on that basis, and dividing that amount by twelve. Page 6BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT 11. BIOSYSTEMS PRODUCTS IN POSSESSION OR CONTROL OF SALES REPRESENTATIVE Frequently, Sales Representative will have in his/her possession or control BIOSYSTEMS PRODUCTS belonging to Biosystems, MANUFACTURERS, or BIOSYSTEMS CUSTOMERS. Sales Representative accepts full responsibility for such products. Unless paid for by a BIOSYSTEMS CUSTOMER, Sales Representative will reimburse Biosystems for items lost, stolen, or damaged (including the opening of sterile products). Sales Representative agrees that the amount of any lost, stolen, or otherwise damaged BIOSYSTEMS PRODUCTS, or products that are otherwise not returned or accounted for, may be withheld from compensation due to the Sales Representative at any time. Sales Representative will keep full and complete records of BIOSYSTEMS PRODUCTS that is currently in or has been in his/her possession. 12. SAMPLES AND PROMOTIONAL MATERIALS From time to time Biosystems may deliver to Sales Representative such items as samples, models, literature, and instrumentation for use in promoting and selling BIOSYSTEMS PRODUCTS. Except for items actually purchased by Sales Representative or delivered by Sales Representative as unrestricted no-charge samples according to Biosystems’ specific instructions, Biosystems will retain all right, title, and interest in and to such items and Sales Representative will hold them for Biosystems” benefit. Biosystems reserves the right at any time to require Sales Representative to return any and all items to which Biosystems retains title, and Sales Representative agrees to comply promptly with such request. Upon request from Biosystems, Sales Representative will also return all items which were actually purchased from Biosystems and which, at the time of such request, are in the custody or possession of Sales Representative. Biosystems will credit to Sales Representative the original purchase price less a reasonable amount for depreciation. If Sales Representative fails or neglects to return such items upon Biosystems’ request, Sales Representative consents to Biosystems deducting the replacement cost of such items from any amounts Biosystems owes to Sales Representative. 13. JUNIOR SALES REPRESENTATIVES Sales Representative will not employ or appoint any person (“Junior Sales Representative”) to engage in the sale of BIOSYSTEMS PRODUCTS in the Territory without the prior written consent of Biosystems' President. Biosystems’ consent shall be conditioned upon Junior Sales Representative’s execution of an agreement with Biosystems. 14. CHANGES CONCERNING MANUFACTURERS AND BIOSYSTEMS PRODUCTS Biosystems retains the right to discontinue representing any MANUFACTURER and to discontinue selling, soliciting sales, supporting, marketing, or promoting any Page 7BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT . BIOSYSTEMS PRODUCTS at any time during the term of this Agreement. Biosystems further retains the right to change, substitute, or replace MANUFACTURER(S) and/or BIOSYSTEMS PRODUCT(S), in whole or in part, at any time during the term of this Agreement. Biosystems may modify this Agreement unilaterally to reflect such discontinuation, substitution, and/or replacement by preparing and delivering to Sales Representative addenda to Exhibits A and C of this Agreement, signed by Biosystems’ President. Such modifications, discontinuations, and/or replacements shall not affect the enforceability of this Agreement, which shall remain in full force and effect in all respects following such modifications, discontinuations, and/or replacements. 15. COMPLIANCE WITH LAWS AND REGULATIONS Each party will comply with all pertinent provisions of the Federal Food, Drug, and Cosmetic Act, as the same may be amended from time to time, and with all regulations promulgated thereunder, as well as any and all laws, regulations, and ordinances. 16. SALES REPRESENTATIVE’S REPORTS AND RECORDS 16.1. WEEKLY REPORTS. Sales Representative is obligated to submit reports by e-mail to Biosystems’ President and Sales Representative’s sales manager every Sunday before 7:00 p.m. in the form attached as Exhibit E. 16.2. PERIODIC REPORTS. In addition to those reports required under Section 16.1, Sales Representative may be required periodically to prepare and submit to Biosystems written reports as directed by Biosystems’ management. 16.3. RECORDS PERTAINING TO BIOSYSTEMS PRODUCTS. Sales Representative will prepare and maintain accurate, complete, and current books and records accounting for all BIOSYSTEMS PRODUCTS consigned to BIOSYSTEMS CUSTOMERS in his/her Territory, or otherwise in Sales Representative’s possession, custody, or control. For consigned product, such records shall include the names of consignees, the quantities consigned, the catalogue numbers of BIOSYSTEMS PRODUCTS consigned, the lot numbers, and the terms of each consignment. For all other product, such records shall include the names of the MANUFACTURERS, the catalogue numbers of BIOSYSTEMS PRODUCTS, and the lot numbers. Sales Representative will give the representatives of Biosystems access to such records upon request. 17..CONFLICTS OF INTEREST Sales Representative covenants that, during the term of this Agreement he/she will not engage directly or indirectly in any activity which conflicts with Sales Representative's faithful performance of the services, covenants, commitments, and obligations undertaken and to be performed pursuant to this Agreement. Without limiting the generality of the foregoing, Sales Representative expressly agrees that he/she will not engage or assist, or induce others to engage or assist, directly or indirectly, in the development, production, sale, offer for sale, service, or representation of aay COMPETITIVE PRODUCTS. Page 8BIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT 18. NON DISCLOSURE OF CONFIDENTIAL INFORMATION OBLIGATION TO MAINTAIN CONFIDENTIALITY. From time to time the Sales Representative will have access to certain confidential information relating to Biosystems, and/or each MANUFACTURER (“Confidential Information”), Confidential Information means any information relating to Biosystems or any MANUFACTURER’S business , including a formula, pattern, compilation, program, device, method, technique, system, plan, or process, that Sales Representative learns or develops during the course of Sales Representative’s employment by Biosystems that derives independent economic value from not being generally known, or readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use. Confidential Information includes but is not limited to trade secrets and inventions and, without limitation, may relate to research; development; experiments; clinical investigations; clinical trials; clinical and product development results and data; engineering; product specifications; computer programs; computer software; hardware configurations; manufacturing processes; compositions; algorithms; know-how; methods; machines, management systems and techniques; strategic plans; long-range plans; operating plans; organizational plans; financial plans; financial models; financial projections; nonpublic financial and sales information; business, financial, planning and strategic systems and methods; operating systems; information systems; acquisition and divestiture goals, plans, strategies or targets; regulatory strategies, plans and approaches; quality control systems and techniques; patent and intellectual property strategies, plans and approaches; vendor and customer data, employee and personnel data; human resources goals, plans and strategies; human resource management techniques; sales volume; pricing strategies; sales and marketing plans and strategies; contracts and bids; any business management techniques that are being planned, developed, utilized or executed by Biosystems or any MANUFACTURER; customer lists; information concerning the internal organization of Biosystems; the names and responsibilities of management, supervisory, and technical employees; compensation plans, including but not limited to commission rates; manufacturing activities; technical information concerning BIOSYSTEMS PRODUCTS (except as contained in marketing or promotional literature furnished to Sales Representative for distribution);. Sales Representative covenants that he/she wil! hold all Confidential Information in strict confidence and in trust for Biosystems’ benefit, and will not at any time during the term of this Agreement or at any time thereafter disclose any Confidential Information, in whole or in part, to any third party, or use Confidential Information for his/her own benefit or for the benefit of any third party without the prior written consent of Biosystems’ President. 18.2. Upon Biosystems’ request or upon expiration or termination of this Agreement, whether or not separate written demand has been made, Sales Representative will return promptly all Confidential Information to Biosystems to the extent held by Sales Representative in written, graphic, or other tangibleBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT form, and all copies, summaries, notes, and other documents pertaining thereto made by Sales Representative. 18.3. The Sales Representative acknowledges that money damages would be an inadequate remedy for the breach of any of the provisions of Section 18 of this Agreement, and accordingly, Biosystems, with or without pursuing any remedy for damages, shall be entitled to an immediate injunction restraining the Sales Representative from breaching or continuing to breach the same. This remedy is not exclusive and shall be in addition to any other remedy available to Biosystems in law or equity. 18.4, The provisions of Section 18 of this Agreement will survive expiration or termination of the Agreement and remain in effect unless and until Biosystems agrees in writing to terminate it. 19. TERM AND TERMINATION 19.1, EFFECTIVE DATE. This Agreement will become effective as of the date first written above and will continue until December 31, 2020 when it will automatically expire, or else until terminated pursuant to Section 19.2, whichever is earlier. 19.2, TERMINATION. 19.2.1, BY BIOSYSTEMS. This Agreement may be terminated by Biosystems Page 10 upon written notice upon the occurrence of any of the following events: 19.2.1.1. IfSales Representative fails to meet the quarterly Performance Objectives listed in Exhibit C for any BIOSYSTEMS PRODUCT for two consecutive calendar quarters, in which event termination may be immediate upon notice; or 19.2.1.2. If Sales Representative fails to cure any material breach of any covenant, commitment, or obligation under this Agreement within ten (10) business days after receipt of written notice from Biosystems of such breach; provided, however, that if the breach is not willful, and is not a result of gross neglect by Sales Representative, then the cure period will be extended for a time which is reasonable in the circumstances, provided Sales Representative promptly institutes the efforts necessary to effect a cure within such reasonable time; or 19.2.1.3. If Sales Representative commits a breach of a material covenant, commitment, or obligation under this Agreement which is of such a nature as not to permit any readily realizable cure, including but not limited to a breach of Sales Representative's covenants respecting Confidential Information or of Sales Representative's covenantsBIOSYSTEMS OF NEW ENGLAND, INC. SALES EMPLOYEE AGREEMENT respecting Conflicts of Interest, termination may be immediate upon notice; or 19.2.1.4. If Sales Representative commits a crime or an act of fraud or misrepresentation that materially impacts on his/her performance or