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EXHIBIT 10.31 (a)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT, initially made as of the 1st of August, 1993, is
amended and restated as of the 29th day of April, 1999 (the "Effective Date"),
by and between ANTEC CORPORATION, a Delaware corporation ("Company"), and Xxxx
Xxxx ("Executive").
WHEREAS, Company and Executive desire to modify their current
contractual relationship:
WHEREAS, Company recognizes Executive's knowledge and experience in its
industry and business and Executive's desire to assure Executive's continued
employment; and
WHEREAS, Executive is desirous of serving Company on the terms herein
provided, including those restricting Executive's ability to compete in the
future;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. EMPLOYMENT AND TERM. Company will employ Executive and Executive will
work for Company as follows: Executive will serve as Chairman and Chief
Executive Officer for such portion of the remainder of 1999 as the
Board of Directors of Company (the "Board") shall determine. Thereafter
until May 31, 2002 or this Agreement is terminated as provided in
Section 5 (the "Termination Date,") Executive will serve as Chairman.
As Chairman, Executive will perform on a full-time basis such services
of an executive nature within Executive's abilities as the Chief
Executive Officer or the Board from time to time shall reasonably
determine.
2. COMPENSATION. Company will pay Executive for the performance of
Executive's duties through May 31, 2002 (a) a salary at the rate of
$500,000 a year ("Base Compensation"), plus (b) a bonus ("Bonus") for
each year 1999 through 2001 and the partial year January 1 to May 31,
2002 in an amount determined by Company using such criteria as it deems
fair and equitable, allowing up to 200% of planned Bonus for
performance above target goals. The amount of the planned Bonus shall
be $375,000 for each year 1999 through 2001 and $156,250 for the
partial year January 1 to May 31, 2002. The target goals for 1999 shall
be those previously approved by the Compensation Committee of the
Board. For following years, the target goals shall be those established
by the Board or its Compensation Committee on the recommendation of the
Chief Executive Officer that can reasonably be substantially impacted
by Executive. Bonuses for 2000 and thereafter will be cut in half in
any year in which Company's earnings (or equivalent measure then being
utilized) are not sufficient for the Chief Executive to earn a minimum
pay-out for the portion of the Chief Executive Officer's bonus for that
year dependent upon earnings (or the equivalent measure than being
utilized). Executive's Base Compensation shall be payable semi-monthly,
and the Bonus shall be payable as soon after the end of each calendar
year as it can be determined, but in any event within ninety (90) days
thereafter.
3. ADDITIONAL BENEFITS. Executive will be entitled to participate in and
receive benefits under any retirement plan, health plan, disability
plan and life insurance plan or other similar executive benefit plan or
arrangement (collectively "Benefit Plans") generally made available by
Company from time to time to its senior executives. Company will not
substantially reduce the aggregate amount it is currently incurring to
provide Benefit Plans to Executive. Executive will be entitled to
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such other benefits, including vacation, fringe benefits and expense
reimbursement as generally made available by Company from time to time
to its senior executives.
4. STOCK OPTIONS AND OTHER INCENTIVES. Executive will not be granted any
further stock options or participate in any incentive programs of
Company, other than the Bonus as provided in this Agreement.
5. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated by Company by written notice to
Executive only by adoption by the Board of Directors of a resolution
approved by directors constituting a majority of all of the directors
then holding office. The termination will not be effective until two
years after written notice of termination is given Executive unless
termination is for "Good Cause." "Good Cause" shall mean (i)
Executive's conviction of any embezzlement or any felony involving
fraud or breach of trust relating to the performance of Executive's
duties for Company, (ii) Executive's willful engagement in gross
misconduct in the performance of Executive's duties, (iii) Executive's
death, or (iv) permanent disability which materially impairs
Executive's performance of Executive's duties and qualifies Executive
for full benefits under Company's long term disability insurance
policy.
(b) Executive may terminate this Agreement by giving Company written
notice of termination. The termination will not be effective until two
years after written notice is given Company unless termination is for
"Good Reason." "Good Reason" shall exist if (i) Company continues in
material breach of this Agreement for more than thirty (30) days after
being notified in writing by Executive of such breach, provided
Executive has given such notice to Company within thirty (30) days of
first becoming aware of the facts constituting such breach, (ii)
Company gives Executive a notice of termination without "Good Cause" as
specified above, provided Executive terminates this Agreement within 30
days of receiving such notice, or (iii) a "Change of Control" occurs,
and Executive's employment hereunder is terminated by Company other
than for "Good Cause" or by Executive for any reason. A "Change of
Control" shall mean any person, as such term is used in section 13(d)
of and 14(d) of the Securities Exchange Act of 1934, amended (the
"Exchange Act"), is or becomes the "beneficial owner" (as defined in
Rule 13(d)-3 under the Exchange Act) of securities of Company
representing more than 25% of the combined voting power of Company's
then outstanding voting securities.
(c) If Executive terminates this Agreement and simultaneously therewith
his employment by Company for good Reason, all of Executive's stock
options outstanding and unexercised at the Termination Date (except for
the option granted on May 7, 1997 which shall continue to be governed
by the terms of that option) shall become immediately and fully
exercisable as of the Termination Date, and Company for a period of two
years from such termination (the "Severance Period") shall continue to
provide to Executive (a) his Base Compensation, at the rate most
recently determined, (b) a Bonus for each fiscal year (and a pro rata
amount for each partial year) in an amount equal to the most recent
Bonus paid or payable to Executive prior to the Termination Date and
(c) the Benefit Plans as provided by Section 3 (subject in the case of
long-term disability to the availability of such coverage under
Company's insurance policy).
(d) The parties agree that the payments and benefits provided for in
subsection (c) of this Section shall be deemed to constitute liquidated
damages for Company's breach or constructive breach of this Agreement
and payment for the non-competition provisions of this Agreement, and
Company agrees that (i) Executive shall not be required to mitigate his
damages by seeking other employment or otherwise, and (ii) Company's
payments and other obligations under this
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Agreement shall not be reduced in any way by reason of any compensation
received by Executive from sources other than Company after the
Termination Date, except as otherwise expressly provided herein.
(e) Termination of this Agreement shall not affect the Consulting
Agreement between the parties or the Supplemental Retirement Plan
provided pursuant to that agreement.
6. MINIMUM INVESTMENT. Through May 31, 2002 or earlier Change of Control,
Executive will maintain a minimum investment in Company of 100,000
shares or 200,000 exercisable options to purchase shares or any
equivalent combination of shares and exercisable options, with shares
having twice the weight of options. The number of shares shall be
appropriately adjusted for any changes in the shares or extraordinary
distributions
7. NON-COMPETITION COVENANT. Executive agrees that throughout his
employment hereunder and during the Severance Period he will not
directly or indirectly, alone or as a member of partnership,
association or joint venture or as an employee, officer, director or
stockholder of any corporation or in any other capacity:
(a) engage in any activity which is competitive with the business of
Company in the United States or in any foreign county in which Company
is carrying on such business, provided that the foregoing provision
shall not be deemed to prohibit Executive from purchasing for
investment any securities or interest in any publicly-owned
organization which is competitive with the business of Company so long
as his investment in any such organization does not exceed one percent
of its total equity; or
(b) solicit in connection with any activity which is competitive with
Company, any customers or suppliers which he solicited on behalf of
Company or on behalf of the business of Company.
8. TAXES. Company will timely pay to Executive the amount of any excise
taxes imposed on Executive under Section 4999 of the Internal Revenue
Code as currently written by reason of payments or benefits under the
provisions of this Agreement, including this provision, and the amount
of any federal and state income taxes imposed on Executive by reason of
payments to Executive under this Section.
9. NOTICE. Any Notices given hereunder shall be in writing and shall be
given by personal delivery or by certified or registered mail, return
receipt requested, addressed to:
If to Company: If to Executive:
ANTEC Corporation Current address in
00000 Xxxxxxxxxx Xxxxxx the records of the
Xxxxxx, Xxxxxxx 00000 Company
or such other address as shall be furnished in writing by one party to
the other.
10. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if the
invalid or unenforceable provision has been omitted.
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11. ASSIGNMENT. Company's obligations hereunder shall be binding legal
obligations of any successor to all or substantially all of Company's
business by purchase, merger, consolidation or otherwise. Company may
not sell or otherwise dispose of all or substantially all of its assets
or merge or consolidate with any other entity without making adequate
provision for its obligations hereunder. Except in accordance with
foregoing, neither party may assign this Agreement provided that upon
Executive's death, this Agreement shall be binding upon and inure to
the benefit of Executive's heirs, legatees and the legal representative
of each.
12. APPLICABLE LAW. This Agreement shall be construed and interpreted
pursuant to the laws of Georgia.
13. AMENDMENT. This Agreement may be amended only by a written document
signed by both parties.
14. LEGAL FEES. The prevailing party in any litigation concerning this
Agreement shall be reimbursed by the party found to be in breach of
this Agreement for all reasonable costs, including attorney fees,
incurred by the prevailing party in enforcing this Agreement.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
ANTEC CORPORATION
By:
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Its:
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