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EXHIBIT 10.33
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 Xxxxxxxx Xxxxxxxx ("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 in the Atlanta area as Executive Vice President until
Executive reaches the age of 65 or this Agreement is terminated as
provided in Section 5 (the "Termination Date"). As Executive Vice
President, Executive will perform on a full-time basis the normal
services of a senior executive officer, including without limitation,
the supervision of Company's financial, accounting, legal and
administrative functions.
2. COMPENSATION. Company will pay Executive for the performance of
Executive's duties as Executive Vice President (a) a salary ("Base
Compensation"), at the rate of $300,000 a year for the period January 1
to December 31, 1999, and thereafter at the rate of at least $300,000 a
year adjusted minimally for inflation since January 1, 1999 and any
significant increase in the complexity of Company, and (b) a bonus
("Bonus") for each year and partial year in an amount determined by
Company using such criteria as it deems fair and equitable, allowing up
to 150% of planned Bonus for 1999 and 200% of planned Bonus for
subsequent years for performance above target goals. The amount of the
planned Bonus shall be 60% of total Base Compensation for the year or
partial year for which the Bonus is being paid. 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 such
other benefits, including vacation, fringe benefits and expense
reimbursement as generally made available by Company from time to time
to its senior executives.
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4 STOCK OPTIONS. From time to time, Executive will be granted options to
purchase shares of Company as determined by the Board or its
Compensation Committee in its sole discretion. These options will be
granted at the same time options are granted generally to other senior
executives of Company. The exercise price of these options will be the
market price of the shares at time of grant. The options will otherwise
have terms similar to the terms of the option granted to Executive on
April 29, 1999.
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).
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(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 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.
6. RELOCATION. Company will provide Executive an advance of $180,000 in
connection with his relocation to the Atlanta area in addition to the
benefits provided by Company's relocation expense reimbursement
practices for senior executives. This advance will be forgiven in four
equal annual portions each April 30, beginning April 30, 2000. All
income taxes arises from this forgiveness shall be the responsibility
of Executive. Any portion of this advance not forgiven at the time of
termination by Executive of this Agreement without Good Reason or by
Company with Good Cause other than death or disability shall be
promptly repaid to Company. If this Agreement is terminated by Company
without Good Cause or by Executive with Good Reason prior to the third
anniversary of the Effective Date, Company, at the request of Executive
within one year of such termination, will purchase from Executive the
residence in the Atlanta area purchased or being purchased by Executive
at the Effective Date at the higher of its then appraised value or
Executive's then investment in this residence.
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.
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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.
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 t 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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