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Exhbit 10.80
EMPLOYMENT CONTRACT
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EMPLOYMENT AGREEMENT, executed as of December 14, 1992 between
SpecTran Corporation, a Delaware corporation (hereinafter referred to as the
"Corporation"), and Xx. Xxxxxxx X. Xxxxxx (hereinafter referred to as
"Executive").
W I T N E S S E T H:
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WHEREAS, Executive is presently employed by the Corporation; and
WHEREAS, the Corporation recognizes the effort, attention and skill
Executive has given the organization, operation and planning of the Corporation
and desires to enter into this employment agreement with Executive.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree with each other as follows:
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1. EMPLOYMENT. (a) The Corporation agrees to and does hereby
employ Executive, and Executive agrees to and does hereby accept employment by
the Corporation, as President and Chief Executive Officer of the Corporation,
subject to the supervision and direction of its Board of Directors, for the one
year period commencing on June 1, 1992, and ending at midnight on the 31st day
of May, 1993 (the "Base Term"). The Base Term shall be automatically renewed on
a daily basis so that on each date during which Executive is employed under this
Agreement the remaining term shall be a period of one year terminating at
midnight of the first anniversary of the day immediately preceding such date,
unless at any time the outside (i.e., non-employee) members of the Corporation's
Board of Directors terminate the automatic daily renewal feature of this
Agreement as provided in Article 1(b) below. The Base Term and all renewals
thereof shall be deemed the "Employment Period" and shall hereinafter be
referred to as such.
(b) At any time during the Employment Period the outside (i.e.,
non-employee) members of the Corporation's Board of Directors may by resolution
terminate the automatic daily renewal of this Agreement and set a termination
date which shall be midnight of the first anniversary of the date immediately
preceding
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the day on which such resolution was adopted (the "Termination Date"). Written
notice ("Notice of Nonrenewal") of the outside directors' resolution setting a
Termination Date shall be executed by each outside director and delivered to
Executive within two business days of the adoption of such resolution. A Notice
of Nonrenewal may be rescinded at any time by resolution of the outside members
of the Corporation's Board of Directors executed and delivered in the same
fashion.
(c) If, following delivery to Executive of the Notice of
Nonrenewal, neither the Corporation nor Executive terminates Executive's
employment under Article 12 below, this Agreement shall continue in full force
and effect for the one-year period set forth in the Notice of Nonrenewal, and
shall terminate on the Termination Date.
2. SCOPE OF DUTIES. Executive agrees that as President and Chief
Executive Officer of the Corporation he will devote his full time and effort
during the Employment Period to the performance of the duties of such office.
The Corporation will use its best efforts to nominate Executive for election to
the Board of Directors of the Corporation. Executive shall make his business
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headquarters at Sturbridge, Massachusetts and shall relocate should the
Corporation change its headquarters. Executive shall undertake such travel as
the Corporation may request.
It is understood and agreed that Executive will advise the Corporation
of his intentions to act as a director of other corporations and may hold such
directorships and shall be permitted to devote such time thereto as may
reasonably be necessary to discharge the ordinary duties attendant upon any such
directorships. Executive agrees that he will, upon request of the Board of
Directors of the Corporation, resign from any such directorship notwithstanding
that the Corporation may have theretofore approved his accepting or retaining
such directorship.
Notwithstanding the foregoing, in the event of termination of
Executive's employment hereunder in accordance with the terms of this Agreement,
the provisions of this Article 2 shall be null and void, and of no effect.
3. EMPLOYMENT PERIOD - ANNUAL COMPENSATION. For the services and
duties to be rendered and performed by Executive during the Employment Period,
the Corporation agrees to pay
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Executive annual compensation at the rate of not less than One Hundred
Fifty-Five Thousand Dollars and no cents ($155,000.00) per year, which amount
may be changed by action of the Compensation Committee of the Board of Directors
and subsequent resolution of the Board of Directors (this annual amount to be
referred to as "Annual Executive Compensation"). Annual Executive Compensation
shall be payable in equal semi-monthly installments. The Corporation shall
reimburse Executive for all expenses reasonably and necessarily incurred in
connection with his employment by the Corporation, including traveling expenses
while absent, on the Corporation's business, from his business headquarters. The
Board of Directors of the Corporation may increase Executive's Compensation at
such time or times and in such amount or amounts as it may in its sole
discretion determine. The Corporation may also pay a bonus to Executive, it
being expressly understood that determination of whether or not any such bonus
will be paid and the amount of any such bonus shall be at the sole discretion of
the Board of Directors.
4. VACATION. Executive shall be entitled to a vacation each year
equal to one (1) month. Said vacation may be taken all at once or weekly at the
sole discretion of Executive.
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5. SECRETS. Executive agrees that any trade secrets or any other
proprietary information (whether in written, verbal or any other form) relating
to the existing or contemplated business and/or field of interest of the
Corporation or any of its affiliates (for the purpose of this Agreement, an
affiliate of the Corporation shall be deemed to be any corporation or other
legal entity which controls the Corporation, which is controlled by the
Corporation, one which is under common control with the Corporation), or of any
corporation or other legal entity in which the Corporation or any of its
affiliates has an ownership interest of more than twenty-five percent (25%), and
any proprietary information (whether in written, verbal or any other form) of
any of the Corporation's customers, suppliers, licensor or licensees, including,
but not limited to, information relating to inventions, disclosures, processes,
systems, methods, formulae, patents, patent applications, machinery, materials,
notes, drawings, research activities and plans, costs of production, contract
forms, prices, volume of sales, promotional methods, list of names or classes or
customers, which he has heretofore acquired during his employment by the
Corporation or any of its affiliates or which he may hereafter acquire during
his employment with the Corporation or any of its affiliates, in both cases
whether during or outside business
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hours, whether or not on the Corporation's premises, as the result of any
disclosures to him, or in any other way, shall be regarded as held by him in a
fiduciary capacity solely for the benefit of the Corporation, its successors or
assigns, and shall not at any time, either during the term of this Agreement or
thereafter, be disclosed, divulged, furnished, or made accessible by him to
anyone, or be otherwise used by him, except in the regular course of business of
the Corporation or its affiliates. Upon termination of his employment, Executive
shall return or deliver to the Corporation all tangible forms of such
information in his possession or control, and shall retain no copies thereof.
Information shall, for purposes of this Agreement, be considered to be secret if
not known by the trade generally, even though such information may have been
disclosed to one or more third parties pursuant to any business discussion or
agreement, including distribution agreements, joint research agreements or other
agreements entered into by the Corporation or any of its affiliates.
6. PATENTS. Executive agrees to and does hereby sell, assign,
transfer and set over to the Corporation, its successors, assigns, or
affiliates, as the case may be, all his right, title,
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and interest in and to any inventions, improvements, processes, patents or
applications for patents which he develops or conceives individually or in
conjunction with others during his employment by the Corporation, or, having
possibly conceived same prior to his employment, may complete while in the
employ of the Corporation or any of its affiliates, in both cases whether during
or outside business hours, whether or not on the Company's premises, which
inventions, improvements, processes, patents or applications for patents are (i)
in connection with any matters within the scope of the existing or contemplated
business of the Corporation or any of its affiliates, or (ii) aided by the use
of time, materials, facilities or information paid for or provided by the
Corporation, all of the foregoing to be held and enjoyed by the Corporation, its
successors, assigns or affiliates, as the case may be, to the full extent of the
term for which any Letters Patent may be granted and as fully as the same would
have been held by Executive, had this Agreement, sale or assignment not been
made. Executive will make, execute and deliver any and all instruments and
documents necessary to obtain patents for such inventions, improvements and
processes in any and all countries. Executive hereby irrevocably appoints the
Corporation to be his attorney in fact in the name of and on behalf of Executive
to execute all such instruments and do all such
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things and generally to use the Executive's name for the purposes of assuring to
the Corporation (or its nominee) the full benefit of its rights under the
provisions of Articles 5 and 6.
7. DISABILITY. (a) In the event Executive becomes partially
disabled, or becomes totally disabled (as determined in accordance with Article
7(c) below) and such total disability has continued for less than six (6) full
consecutive calendar months, then the Corporation shall continue during the
Employment Period to pay Executive at the rate of his Annual Executive
Compensation as set forth in Article 3 and continue the benefits provided for
him in Articles 8 and 9 hereof. The Corporation shall retain the right,
notwithstanding Executive's partial disability, to deliver a Notice of
Nonrenewal during such time as such partial disability continues, unless
Executive has already received a Notice of Nonrenewal, in which event such prior
Notice of Nonrenewal shall remain effective notwithstanding Executive's partial
disability. In any event, the Corporation's obligations in the event of
Executive's partial disability shall terminate upon the end of the Employment
Period.
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(b) In the event Executive becomes totally disabled (as determined
in accordance with Article 7(c) below), and such total disability has continued
for six (6) full consecutive calendar months or more, then for so long
thereafter during the Employment Period as such total disability shall continue
or for a period of one (1) year, whichever is longer, Executive shall be paid at
seventy-five percent (75%) of the rate of his Annual Executive Compensation as
set forth in Article 3 hereof. For purposes of determining the balance of the
Employment Period under this Article 7(b), Executive shall be deemed to have
received a Notice of Nonrenewal effective on the last day of said six-month
period, unless he has already received a Notice of Nonrenewal, in which event
such prior Notice of Nonrenewal shall be controlling.
(c) For purposes of this Agreement, determination of whether
Executive is or is not totally disabled shall be made as follows:
(i) Executive's inability, physical or mental,
for whatever reason, to be able to perform his duties to the
Corporation shall be total disability; and
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(ii) If any difference shall arise between the
Corporation and Executive as to whether he is totally
disabled, such difference shall be resolved as follows:
Executive shall be examined by a physician appointed by the
Corporation and a physician appointed by Executive. If said
two physicians shall disagree concerning whether Executive is
totally disabled, that question shall be submitted to a third
physician, who shall be selected by such two physicians. The
medical opinion of such third physician, after examination of
Executive and consultation with such other two physicians,
shall decide the question.
(d) Should Executive become totally disabled then he may by action
of the Board of Directors be removed from his position and employment with the
Corporation.
8. DEATH. In the event of the death of Executive during the
Employment Period, the Corporation shall continue to pay Executive's Annual
Executive Compensation for a period of one (1) year from the date of death. The
salary payment will be made to
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the wife of Executive or if no wife shall survive Executive, to his Estate.
9. EMPLOYEE BENEFITS. (a) Executive may participate in any
pension plan, profit-sharing plan, life insurance, hospitalization or surgical
program, or insurance program presently in effect or hereafter adopted by the
Corporation, to the extent, if any, that he may be eligible to do so under the
provisions of such plan or program. The Corporation may terminate, modify, or
amend any such plan or program, in the manner and to the extent permitted
therein, and the rights of Executive under any such plan or program shall be
subject to any such right of termination, modification, or amendment. To the
extent any payments under any such plan or program are made to Executive because
he is disabled, such amounts shall be credited against amount due to Executive
under Article 7.
(b) For the sake of clarification, and notwithstanding any other
provision of this Agreement, it is understood and agreed that all benefits
provided to Executive under this Agreement shall be provided to the extent that
they exceed any employee benefit provided to Executive other than specifically
through this Agreement, such as the programs, plans, etc. referred to in Article
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9(a) above. The benefits provided under this Agreement shall be supplemental to
benefits provided otherwise to Executive by the Corporation, and shall not be
provided to the extent that they are duplicative.
10. COVENANT NOT TO SOLICIT EMPLOYEES. During the one-year period
immediately following termination of Executive's employment with the
Corporation, Executive agrees that he will not (a) solicit any past, present or
future customers of the Corporation in any way relating to any business in which
the Corporation was engaged during the term of his employment, or which the
Corporation planned during the term of his employment, to enter, or (b) induce
or actively attempt to influence any other employee or consultant of the
Corporation to terminate his or her employment or consultancy with the
Corporation. In the event that Executive violates any provision of this Article
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Corporation shall have the right immediately to terminate any payments or
benefits provided or to be provided to Executive under this Agreement.
11. ASSIGNMENT. This Agreement may be assigned by the Corporation
as part of the sale of substantially all of its
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business; provided, however, that the purchaser shall expressly assume all
obligations of the Corporation under this Agreement. Further, this Agreement may
be assigned by the Corporation to an affiliate, provided that any such affiliate
shall expressly assume all obligations of the Corporation under this Agreement,
and provided further that the Corporation shall then fully guarantee the
performance of the Agreement by such affiliate. Executive agrees that if this
Agreement is so assigned, all the terms and conditions of this Agreement shall
remain between such assignee and himself with the same force and effect as if
said Agreement had been made with such assignee in the first instance.
12. Termination.
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(a) SURVIVAL. The provisions of Articles 5, 6, 10, 12 and 14
shall survive the termination of this Agreement.
(b) TERMINATION BY EXECUTIVE. Subject to the provisions of Article
12(c)(iii) regarding a Change in Control, if at any time during the Employment
Period (whether or not Executive has received a Notice of Nonrenewal), Executive
elects to terminate his employment with the Corporation, then the Corporation's
obligations
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to Executive under this Agreement shall be limited to the Annual Executive
Compensation and benefits earned up to the date of Executive's departure.
(c) Termination Without Cause.
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(i) Subject to the provisions of Article
12(c)(ii) below, and provided there has been no Change in
Control (as defined in Article 12(c)(v) below), in the event
the Corporation dismisses Executive without Cause from
employment as President and Chief Executive Officer, the
Corporation shall continue to fulfill its obligations under
this Agreement until the later of: (A) the date six months
following Executive's dismissal, or (B) the end of the
Employment Period. For purposes of determining the end of the
Employment Period under this Article, Executive shall be
deemed to have received a Notice of Nonrenewal effective on
the date of his dismissal without Cause, unless he has already
received a Notice of Nonrenewal, in which event such prior
Notice of Nonrenewal shall be controlling.
(ii) Provided there has been no Change in Control
(as defined in Article 12(c)(v) below), if Executive takes
other employment during the six-month period following his
dismissal without Cause, then the
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Corporation's obligation to Executive shall be limited to
payment of Executive's Annual Executive Compensation for the
balance of said six-month period. Provided there has been no
Change in Control (as defined in Article 12(c)(v) below), if
Executive takes other employment after the end of the
six-month period following his dismissal without Cause but
before the end of the Employment Period, the Corporation's
obligations to Executive under this Agreement shall cease upon
Executive's taking such other employment.
(iii) In the event that a Change in Control occurs
during the Employment Period and either [A] Executive is
dismissed without Cause from employment as President and Chief
Executive Officer up to and including twelve (12) months from
such Change in Control or [B] Executive voluntarily leaves the
employ of the Corporation up to and including twelve (12)
months from such Change in Control, then in either case the
Corporation shall continue to fulfill its obligations under
this Agreement for a period of twelve (12) months from such
dismissal without Cause or voluntary departure,
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as the case may be; provided, however, that if Executive takes
other employment during said twelve-month period, the
Corporation's obligation to Executive for the balance of said
twelve-month period shall be limited to payment of Executive's
Annual Executive Compensation.
(iv) Notwithstanding anything to the contrary in
this Agreement, the Corporation, in its sole and absolute
discretion, may accelerate the payment of any amounts payable
under Article 12(c) hereof to Executive, provided, however,
that accelerating such payments does not affect Executive's
eligibility to continue his insurance benefits on the same
basis (both with respect to coverage and contributions) as the
Corporation's active employees until such time as he would
have received the last amount payable under Article 12(c)
hereof had payment thereof not been accelerated pursuant to
this Article 12(c)(iv).
(v) "Change in Control" shall mean [A] the date
of public announcement that a person has become, without the
approval of the Corporation's Board of Directors, the
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beneficial owner of 20% or more of the voting power of all
securities of the Corporation then outstanding; [B] the date
of the commencement of a tender offer or tender exchange by
any person, without the approval of the Corporation's Board of
Directors, if upon the consummation thereof such person would
be the beneficial owner of 20% or more of the voting power of
all securities of the Corporation then outstanding; or [C] the
date on which individuals who constituted the Board of
Directors of the Corporation on the date this Agreement was
adopted cease for any reason to constitute a majority thereof,
provided that any person becoming a director subsequent to
such date whose election or nomination was approved by at
least three quarters of such incumbent Board of Directors
shall be considered as though such person were an incumbent
director.
(vi) "Cause" shall mean [A] breach of Executive's
obligations under Article 5, 6 or 10 of this Agreement, [B]
stealing from the Corporation or [C] Executive's conviction of
a felony.
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(d) Executive agrees not to apply for or receive
unemployment insurance benefits while receiving any benefits under this
contract.
13. NOTICES. All notices required or permitted to be given
hereunder shall be mailed by registered mail or delivered by hand to the party
to whom such notice is required or permitted to be given hereunder. If mailed,
any such notice shall be deemed to have been given when mailed as evidenced by
the postmark at point of mailing. If delivered by hand, any such notice shall be
deemed to have been given when received by the party to whom notice is given, as
evidenced by written and dated receipt of the receiving party.
Any notice to the Corporation or to any assignee of the Corporation
shall be addressed as follows:
SpecTran Corporation
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Any notice to Executive shall be addressed to the address appearing on
the records of the Corporation at the time such notice is given.
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Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
14. APPLICABLE LAW. This Agreement shall be interpreted and
enforced in accordance with the laws of Massachusetts.
15. EFFECTIVE DATE. This Agreement shall become effective as
of the date first mentioned in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written.
SPECTRAN CORPORATION
By
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Xx. Xxxxxxx X. Xxxxxx
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