EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of April 10, 2001, between AMERICAN
TECHNICAL CERAMICS CORP., a Delaware corporation having its principal place of
business at Xxx Xxxxxx Xxxx, Xxxxxxxxxx Xxxxxxx, Xxx Xxxx 00000 (the "Company"),
and XXXXX XXX, who resides at One Ethan Xxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxx Xxxx
00000 ("Employee").
W I T N E S S E T H :
WHEREAS, Employee is currently employed as the Senior Vice President -
New York Operations Manufacturing of the Company;
WHEREAS, the Company desires to provide for Employee's continued
performance of services for the Company and any present or future parent,
subsidiary, or affiliate of the Company, and Employee desires to continue to
perform such services, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt, adequacy, and
sufficiency of which are hereby acknowledged, the Company and Employee hereby
agree as follows:
1. Term. The Company agrees to employ Employee, and Employee agrees to
serve as Senior Vice President - New York Manufacturing of the Company, upon the
terms and conditions hereinafter set forth, for a period commencing on January
1, 2001 and ending on December 31, 2003, or for such shorter period as may be
provided for herein. The period during which Employee is employed hereunder is
hereinafter referred to as the "Employment Period."
2. Duties. Employee agrees to use his best efforts, skills, and
abilities to perform faithfully all duties consistent with his position (or any
other position of a similar nature) assigned to him from time to time by the
Company in accordance with all Company policies and procedures and to devote his
full business time, labor, energies, and attention to the performance of such
duties. Employee shall not to become involved in any personal investment or
other matters which may detract from the performance of his duties or otherwise
adversely affect the Company or any present or future parent, subsidiary, or
affiliate of the Company. In the performance of his duties, Employee shall be
subject to the direction of the Board of Directors, the Chief Executive Officer
of the Company, and any officer of the Company designated by the Board or the
Chief Executive Officer of the Company.
3. Place of Performance. In connection with his employment by the
Company, Employee shall be based at the Company's offices in Huntington Station,
New York. Employee shall be available to travel at such times and to such places
as may be necessary in connection with the performance of his duties hereunder.
4. Annual Compensation.
(a) Salary. During the Employment Period, Employee shall receive a
base salary at the annual rate of $150,000 commencing on the date hereof, plus
such other amounts, if any, as the Board of Directors, in its sole discretion,
may from time to time determine. Employee's salary shall be payable in weekly
installments or at such other frequency as the Company may from time to time
determine (but not less frequently than monthly).
(b) Bonus. During the Employment Period, Employee shall also be
entitled to participate in the Company's Manager's Profit Bonus Plan (the
"Plan"). Employee hereby acknowledges that bonuses under the Plan are awarded in
the sole discretion of the Board of
2
Directors of the Company and are generally paid on a quarterly basis, if at all.
Nothing contained herein shall require the Company to maintain the Plan.
(c) Deductions. The Company shall deduct from all amounts payable to
Employee all taxes and other amounts which the Company is now or may hereafter
become obligated to deduct under any applicable law.
5. Benefits.
(a) Employee shall be entitled to participate in such employee
benefit plans established by the Company from time to time and generally made
available to employees at levels similar to Employee's for which he meets the
eligibility requirements. Nothing contained herein shall require the Company to
establish or maintain any employee benefit plan.
(b) During the Employment Period, the Company shall provide Employee
with the use of an automobile and shall pay the expenses associated with the
maintenance and operation thereof.
6. Termination.
(a) Notwithstanding anything herein contained to the contrary, if on
or after the date hereof and prior to the end of the Employment Period, (i)
either (A) Employee shall be physically or mentally incapacitated or disabled or
otherwise unable fully to discharge his duties hereunder ("Disabled") for a
period of 90 consecutive days or for an aggregate of 90 days within any period
of twelve consecutive months, (B) Employee shall be convicted of a felony or
other crime of moral turpitude, (C) Employee shall commit any act or omit to
take any action in bad faith to the detriment of the Company or any present or
future parent, subsidiary, or affiliate of the Company, (D) Employee shall
willfully fail or refuse to perform any duties consistent with his position (or
any other position of a similar nature) assigned to him from time to time,
3
or (E) Employee shall breach any other term of this Agreement and fail to
correct such breach within 10 days after receiving notice of the same, or if
such breach is not capable of correction within such 10 day period, Employee
shall fail to take substantial steps necessary to correct such breach within
such 10 day period and shall not have corrected such beach within 30 days after
receiving such notice, then, and in each such case, the Company shall have the
right to give notice of termination of Employee's services hereunder as of a
date to be specified in such notice, and this Agreement shall terminate on the
date so specified, or (ii) Employee shall die, then this Agreement shall
terminate on the date of Employee's death.
(b) If this Agreement is terminated by the Company for any of the
reasons set forth in Paragraph 6(a) hereof, Employee shall be entitled to
receive only his salary at the rate provided in Paragraph 4(a) hereof through
and including the date upon which termination shall take effect.
(c) If Employee's employment by the Company pursuant to this
Agreement is terminated for any reason other than any of the reasons set forth
in Paragraph 6(a), or for no reason, then, provided Employee continues to abide
by the provisions of Section 7, 8 and 9 of this Agreement, the Company shall
continue to pay to Employee his base salary at the rate and at the times
provided in Section 4(a) hereof for a period equal to the lesser of (i) one year
from the date upon which such termination shall take effect, and (ii) the
remainder of the Employment Period.
7. Confidentiality.
(a) Employee acknowledges and agrees that he has been and, during
the Employment Period, will continue to be, privy to confidential proprietary
and secret information relating to the Company, its present or future parents,
subsidiaries and affiliates and
4
their respective customers, clients and suppliers. Employee hereby agrees that,
beginning on the date hereof, and at any time hereafter, Employee shall treat as
strictly confidential any proprietary, confidential or secret information
relating to the business or interests of the Company or any present or future
parent, subsidiary or affiliate of the Company, or any customer, client or
supplier of any of them, including, but without limitation, the organizational
structure, operations, business plans or projects of the Company or any present
or future parent, subsidiary or affiliate of the Company, or any customer,
client or supplier of any of them, and any research datum or result, invention,
trade secret, customer list or customer information, process or other work
product developed by or for the Company or any present or future parent,
subsidiary or affiliate of the Company, or any customer, client or supplier of
any of them, whether on the premises of the Company or elsewhere ("Confidential
Information"). Employee hereby agrees that, beginning on the date hereof, and at
any time hereafter, the Employee shall not disclose to any person or entity,
utilize for his own purposes or for the benefit of any other person or entity or
make accessible to any person or entity, in any manner or in any form, any
Confidential Information other than in connection with performing the services
required of him under this Agreement, without the prior written consent of the
Company.
(b) Employee agrees that the provisions of this Paragraph 7 shall
survive the termination of his employment and of this Agreement.
8. Assignment of Intellectual Property Rights.
(a) If at any time or times during his employment by the Company and
during the six month period following his termination for any reason (or for no
reason) Employee shall (either alone or with others) make, conceive, discover or
reduce to practice any Intellectual Property (as hereinafter defined) whatsoever
or any interest therein ("Intellectual
5
Property Rights"), whether or not patentable or registrable under copyright or
similar statutes or subject to analogous protection (herein called
"Developments"), that (i) relates to the business of the Company or any present
or future parent, subsidiary or affiliate of the Company or any of their
respective customers, clients or suppliers or any of the products or services
being developed, manufactured, sold or provided by any of them which may be used
in connection therewith, (ii) results from tasks assigned to Employee by the
Company or any present or future parent, subsidiary or affiliate of the Company,
or (iii) results from the use of premises or personal property (whether tangible
or intangible) owned, leased or contracted for by the Company or any present or
future parent, subsidiary or affiliate of the Company, such Developments and the
benefits thereof shall immediately become the sole and absolute property of the
Company and its assigns, and Employee shall promptly disclose to the Company (or
any persons designated by it) each such Development and hereby assigns any
rights Employee may have or acquire in the Developments and benefits and/or
rights resulting therefrom to the Company and its assigns without further
compensation and shall communicate, without cost or delay, and without
publishing the same, all available information relating thereto (with all
necessary plans and models) to the Company. As used herein, the term
"Intellectual Property" shall mean all industrial and intellectual property,
including, without limitation, patents, patent applications, patent rights,
trademarks, trademark applications, trade names, service marks, service xxxx
applications, copyrights, copyright applications or registrations, databases,
algorithms, computer programs and other software, know-how, trade secrets,
proprietary processes and formulae, inventions, trade dress, logos, design and
all documentation and media constituting, describing or relating to the above.
6
(b) Upon disclosure of each Development to the Company, Employee
will, during his employment and at any time thereafter, at the request and cost
of the Company, sign, execute, make and do all such deeds, documents, acts and
things as the Company and its duly authorized agents may reasonably require to
(i) apply for, obtain and vest in the name of the Company alone (unless the
Company otherwise directs) letters, patents, copyrights or other analogous
protection in any country throughout the world and when so obtained or vested to
renew and restore the same, (ii) defend any actions or opposition proceedings in
respect of such applications and any opposition proceedings or petitions or
applications for revocation of such letters, patents, copyrights or other
analogous protection, and (iii) bring any action to enforce any rights in any
Developments.
(c) The Employee hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as the Employee's agent and
attorney-in-fact, to act for and in the Employee's behalf and stead to execute
and file any such application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of any such letters,
patents, copyrights and other analogous protection thereon with the same legal
force and effect as if executed by Employee.
(d) In the event of the termination of Employee's employment for any
reason (or no reason), Employee agrees to deliver to the Company all documents,
notes, drawings, blueprints, formulae, specifications, computer programs, data
and other materials of any nature pertaining to any proprietary information or
Intellectual Property of the Company or to Employee's work with the Company, and
the Employee will not take any of the foregoing or any reproduction of any of
the foregoing that is embodied in a tangible medium of expression.
(e) The obligations of Employee pursuant to this Paragraph 8 shall
survive termination of his employment and of this Agreement.
7
9. Non-Competition.
(a) Employee acknowledges and agrees that the retention of
Confidential Information is essential to the continued existence of the Company,
and that such information constitutes trade secrets, disclosure of which would
irreparably harm the business of the Company. Employee further acknowledges that
the Company would find it extremely difficult to replace Employee. Accordingly,
Employee agrees that he will not during the period he is employed by the Company
or any present or future parent, subsidiary or affiliate of the Company, under
this Agreement or otherwise, and for a period of 12 months thereafter (i) engage
in, or otherwise directly or indirectly be employed by, or act as a consultant,
advisor or lender to, or be a director, officer, employee, stockholder, owner,
or partner of, any other Competitive Business (as hereinafter defined), (ii)
assist others in engaging in any Competitive Business, (iii) induce any employee
of the Company or any present or future parent, subsidiary or affiliate of this
Company to terminate his employment with the Company or such parent, subsidiary
or affiliate, or engage in any Competitive Business, within a period of one year
after such person is no longer employed by the Company or any present or future
parent, subsidiary or affiliate of the Company, or (iv) induce any entity or
person with which the Company or any of present or future parent, subsidiary or
affiliate has a business relationship to terminate or alter such business
relationship. As used herein "Competitive Business" means and includes the
business of designing, developing, manufacturing and marketing
RF/Microwave/Millimeter/ Wave ceramic capacitors, thin film products and other
passive components and any other business that provides services and/or products
which are comparable to the services and/or products provided or contemplated to
be provided by the Company or any present or future
8
parent, subsidiary or affiliate of the Company. Notwithstanding anything
contained herein to the contrary, the provisions of this Paragraph 9 will not be
deemed breached merely because Employee owns not more than 1% of the outstanding
common stock of a corporation, if, at the time of its acquisition by Employee,
such stock is listed on a national securities exchange, is reported on NASDAQ,
or is regularly traded in the over-the-counter market by a member of a national
securities exchange.
(b) Employee understands that the foregoing restrictions may limit
his ability to earn a livelihood in a business similar to that of the Company or
any present or future parent, subsidiary or affiliate of the Company, but he
nevertheless believes that he has received and will receive sufficient
consideration and other benefits as an employee of the Company and as otherwise
provided hereunder to justify such restrictions which, in any event (given his
education, skills and ability), Employee does not believe would prevent him from
earning a livelihood.
(c) The obligations of Employee pursuant to this Paragraph 9 shall
survive the termination of his employment and of this Agreement.
10. Scope of Agreement. Employee acknowledges that the restrictions
contained in Paragraphs 7, 8 and 9 are a condition of his employment by the
Company. Employee further acknowledges that such restrictions are reasonable in
view of the nature of the business in which the Company is engaged and his
knowledge of the Company's business, and that any breach of his obligations
under Paragraphs 7, 8 and 9 hereof will cause the Company irreparable harm for
which the Company will have no adequate remedy at law. As a result, the Company
shall be entitled to the issuance by a court of competent jurisdiction of an
injunction, restraining order or other equitable relief in favor of itself
restraining Employee from
9
committing or continuing any such violation. Any right to obtain an injunction,
restraining order or other equitable relief hereunder will not be deemed a
waiver of any right to assert any other remedy the Company may have under this
Agreement or otherwise at law or in equity.
11. Representations and Warranties. Employee represents and warrants
that the execution and delivery of this Agreement and the performance of all the
terms of this Agreement do not and will not breach any agreement to which he is
a party, including, without limitation, any agreement to keep in confidence
proprietary information acquired by Employee in confidence or trust. Employee
has not entered into and shall not enter into any agreement, either written or
oral, in conflict with this Agreement. Employee further represents and warrants
that he has not brought and will not bring with him to the Company or use at the
Company any materials or documents of an employer or a former employer that are
not generally available to the public, unless express written authorization from
such employer for their possession and use has been obtained. Employee further
understands that he is not to breach any obligation of confidentiality that he
has to any employer or former employer and agrees to fulfill all such
obligations during the period of his affiliation with the Company.
12. Assignment. Under no circumstances shall Employee assign, pledge or
otherwise dispose of any of his rights or obligations under this Agreement, and
any such attempted assignment, pledge, or disposition shall be void and shall
relieve the Company of all its obligations under this Agreement. The Company may
assign any of its rights or obligations under this Agreement to any present or
future parent, subsidiary, affiliate, or successor.
10
13. Entire Agreement. This Agreement is the entire agreement between
the Company and Employee with respect to the subject matter hereof and
supersedes all other agreements, written or oral, concerning the subject matter
hereof.
14. Waivers and Further Agreements. Any waiver of any breach of any
terms or conditions of this Agreement shall not operate as a waiver of any other
breach of such terms or conditions or any other term or condition, nor shall any
failure to enforce any provision hereof on any one occasion operate as a waiver
of such provision or of any other provision hereof or a waiver of the right to
enforce such provision or any other provision on any subsequent occasion.
15. Amendments. This Agreement may not be amended, nor shall any
waiver, change, modification, consent, or discharge be effected, except by an
instrument in writing executed by or on behalf of the party against whom
enforcement of any such amendment, waiver, change, modification, consent, or
discharge is sought.
16. Severability
(a) If any provision of this Agreement shall be held or deemed to be
invalid, inoperative, or unenforceable as written, it shall be construed, to the
greatest extent possible, in a manner which shall render it valid and
enforceable, and any limitation on the scope or duration of any such provision
necessary to make it valid and enforceable shall be deemed to be part thereof.
(b) If any provision of this Agreement shall be held or deemed to be
invalid, inoperative, or unenforceable as applied to any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because
of the conflict or any provision with any constitution or statute or rule of
public policy or for any other reason, such circumstance
11
shall not have the effect of rendering the provision or provisions in question
invalid, inoperative, or unenforceable in any other jurisdiction or in any other
case or circumstance or of rendering any other provision or provisions herein
contained invalid, inoperative, or unenforceable to the extent that such other
provisions are not themselves actually in conflict with such constitution,
statute, or rule of public policy, but this Agreement shall be reformed and
construed in any such jurisdiction or case as if such invalid, inoperative, or
unenforceable provision had never been contained herein, and such provision
reformed so that it would be valid, operative, and enforceable to the maximum
extent permitted in such jurisdiction or in such case.
17. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York, without
giving effect to rules governing conflicts of law.
18. Courts. Any action to enforce any of the provisions of this
Agreement shall be brought in the courts of the State of New York. The parties
hereby consent to the jurisdiction of the courts of the State of New York.
19. Notices. Any notices required or permitted by this Agreement shall
be in writing and personally delivered or mailed by certified or registered
mail, return receipt requested, addressed to the parties at their addresses set
forth above, or to such other addresses as one party may specify to the other
party, from time to time, in writing. Any notice personally delivered shall be
deemed given at the time of receipt thereof, and any notice given by certified
or registered mail shall be deemed given at the time of certification or
registration thereof.
12
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
AMERICAN TECHNICAL CERAMICS CORP.
By:
----------------------------------
Xxxxxxxx X. Xxxxx
Vice President, Administration and
Corporate Secretary
--------------------------------------
Xxxxx Xxx
13
