Exhibit 10.4
OPTICAL CABLE CORPORATION
EMPLOYMENT AGREEMENT
This agreement made effective November 21, 2001 by and between Optical Cable
Corporation, having a place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx (hereinafter referred to as "OCC"), and Xxx Xxxxxx (hereinafter
referred to as "Xxxxxx").
WHEREAS, OCC desires to employ Xxxxxx and Xxxxxx desires to accept such
employment upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, OCC employs Xxxxxx and Xxxxxx accepts employment upon the following
terms and conditions:
1. EMPLOYMENT AND DUTIES: Xxxxxx is employed as Vice President of Finance of
OCC. Xxxxxx hereby agrees to abide by the terms and conditions of this
Agreement. Xxxxxx shall report directly to the Senior Vice President and
Chief Financial Officer of OCC. The authority, duties and responsibilities
of Xxxxxx shall include those duties as may be assigned to Xxxxxx by the
President from time to time. While employed hereunder, Xxxxxx shall devote
reasonable time and attention during normal business hours to the affairs
of OCC and use his best efforts to perform faithfully and efficiently his
duties and responsibilities.
2. TERM AND RENEWAL: The term of this Agreement shall begin on November 21,
2001 and shall terminate on the 30th day of November, 2003. At the end of
the initial term (and each renewal term, if any), this Agreement will
automatically renew for an additional 2-year term unless one of the parties
provides the other party with written notice indicating the intention not
to renew this Agreement at least 6 months prior to the end of such term.
3. COMPENSATION:
a. Salary. For all services rendered by Xxxxxx, OCC shall pay Xxxxxx
$107,500 annual salary, payable in equal monthly installments on the
first business day of each month during which Xxxxxx is employed,
commencing on December 1, 2001.
b. Sales bonus. Xxxxxx will be paid a monthly bonus equal to .0009 of the
monthly sales which are adjusted for point of sale and payable on the
15th of the following month.
c. Annual bonus. Xxxxxx will be paid a lump sum bonus equal to the sum of
the twelve fiscal year monthly bonuses, payable on or around January
15th of the following year.
4. STOCK OPTIONS: The terms and conditions of stock options granted to Xxxxxx
are governed by the documents evidencing such options and are not intended
to be addressed in this Agreement.
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5. TERMINATION: This Agreement shall terminate automatically upon the earliest
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of any of the following events and no act, failure to act (except as
otherwise provided in this Agreement), oral statement or representation of
OCC or any of its directors, officers, agents or employees, whether
contained in any employee handbook or otherwise, will be deemed a waiver by
OCC of its rights hereunder unless expressly stated to the contrary:
a. expiration of the term (including renewals, if any);
b. OCC's termination of Xxxxxx without Cause (as defined below), provided
that OCC has given Xxxxxx thirty (30) days prior written notice; c.
c. resignation by Xxxxxx other than for Good Reason (as defined below),
provided that Xxxxxx has given OCC thirty (30) days prior written
notice;
d. death of Xxxxxx (effective on the last day of the month in which death
occurs);
e. the inability of Xxxxxx to perform substantially all of his duties
hereunder by reason of illness, physical, mental or emotional
disability or other incapacity, which inability shall continue for more
than four successive months or six months in the aggregate during any
period of 12 consecutive months, provided that OCC has given Xxxxxx
written notice at or before the end of such period Xxxxxx does not
return to work on a full-time basis; or
f. OCC's termination of Xxxxxx for Cause, provided that OCC has given
Xxxxxx written notice. For purposes of this Agreement, "Cause" shall
mean:
x. Xxxxxx'x material breach of this Agreement, which breach is not
cured within thirty (30) days of receipt by Xxxxxx of notice from
OCC specifying the breach; or
ii. Xxxxxx'x gross negligence in the performance of his material
duties hereunder, intentional non-performance or misperformance
of such duties, or refusal to abide by or comply with the
directives of the Board, his superiors, or OCC's policies and
procedures (including non-discrimination and sexual harassment),
which actions continue for a period of at least thirty (30) days
after receipt by Xxxxxx of written notice of the need to cure or
cease; or
iii. Xxxxxx'x willful dishonesty, fraud, or misconduct with respect to
the business or affairs of OCC, that in the reasonable judgment
of the Board of Directors materially and adversely affects the
operations or reputation of OCC; or
iv. Xxxxxx'x conviction of a felony or other crime involving moral
turpitude (whether or not in connection with his employment);
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v. failure of Xxxxxx to pass any drug or alcohol test administered
in accordance with OCC's substance abuse policies.
g. resignation by Xxxxxx for Good Reason with thirty (30) days prior
written notice. For purposes of this Agreement, "Good Reason" shall
mean:
i. a change in reporting relationships such that Xxxxxx no longer
directly reports to the Senior Vice President and Chief Financial
Officer or the President of OCC, without Xxxxxx'x prior written
consent; or
ii. a material diminution in the nature or scope of Xxxxxx'x powers,
duties or responsibilities to a level below that which would
ordinarily be assigned to an employee serving as Vice President
of Finance, without Xxxxxx'x prior written consent; or
iii. failure by OCC to provide Xxxxxx with the compensation and
benefits in accordance with the terms of this Agreement; or
iv. relocation of OCC's principal executive offices to a location
outside a thirty (30) mile radius of Roanoke, Virginia.
6. EFFECT OF TERMINATION: Except as expressly set forth below, OCC shall have
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no further obligations to Xxxxxx under this Agreement after the termination
of his employment hereunder:
a. Termination For Cause. If Xxxxxx is terminated for Cause by OCC, as
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defined in Section 5(f) above, OCC shall pay to Xxxxxx his salary and
pro rata bonuses earned through the date of termination.
b. Resignation by Xxxxxx Without Good Reason. If this Agreement is
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terminated by the resignation of Xxxxxx without Good Reason, OCC shall
pay to Xxxxxx his salary and pro rata bonuses earned through the date
of termination.
c. Termination without Cause, upon Death or Disability, or Resignation
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for Good Reason. If this Agreement is terminated for any of the
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reasons stated in Sections 5(b), (d), (e), or (g), OCC shall pay to
Xxxxxx his salary and pro rata bonuses earned through the date of
termination, as well as a severance payment equal to six (6) months
salary (including bonuses), less applicable withholdings, payable in
the same manner as during Xxxxxx'x employment.
7. PATENT RIGHTS: Xxxxxx'x interest in any and all inventions or improvements
made or conceived by him, or which he may make or conceive at any time
after the commencement of and until the termination of his employment with
OCC, either individually or jointly with
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others, which relate to the business conducted by or planned to be
conducted by OCC as reasonably determined by OCC, shall be the exclusive
property of OCC, its successors, assignees or nominees. He will make full
and prompt disclosure in writing to an officer or official of OCC, or to
anyone designated for that purpose by OCC, of all inventions or
improvements made or conceived by him during the term of his employment. At
the request and expense of OCC, and without further compensation to him,
Xxxxxx will for all inventions or improvements which may be patentable, do
all lawful acts and execute and acknowledge any and all letters and/or
patents in the United States of America and foreign countries for any of
such inventions and improvements and for vesting in OCC the entire right,
title and interest thereto. As used in this Agreement, "inventions or
improvements" means discoveries, concepts, and ideas, whether patentable or
not, relating to any present or prospective activities of OCC, including,
but not limited to, devices, processes, methods, formulae, techniques, and
any improvements to the foregoing.
8. CONFIDENTIALITY; DISCLOSURE OF INFORMATION: Since the work for which Xxxxxx
is employed and upon which he shall be engaged, will include trade secrets
and confidential information of OCC or its customers, Xxxxxx receives such
trade secrets and confidential information in confidence and shall not,
except as required in the conduct of OCC's business, publish or disclose,
or make use of or authorize anyone else to publish, disclose, or make use
of, any such secrets or information unless and until such secrets or
information shall have ceased to be secret or confidential as evidenced by
public knowledge. This prohibition as to publication and disclosures shall
not restrict him in the exercise of his technical skill, provided that the
exercise of such skill does not involve the disclosure to others not
authorized to receive trade secret or confidential information of OCC or
its customers. As used in this Agreement, "trade secrets" and "confidential
information" includes any formula, pattern, device or compilation of
information used in the business of OCC or its customers for which OCC
derives independent economic value by affording OCC an opportunity to
obtain advantage over competitors who do not know or use such information;
the term includes, but is not limited to, devices and processes, whether
patentable or not, compilations of information such as customer lists,
business and marketing plans, and pricing information where certain of the
information involved is generally known or available but where the
compilation, organization or use of the information is not generally known
and is of significance to the business of OCC or its customers. The
provisions of this paragraph eight (8) shall apply throughout the period of
Xxxxxx'x employment with OCC, and thereafter.
9. NON-COMPETE: Xxxxxx covenants and agrees that during the term of his
employment with OCC (as employee, consultant or otherwise) and for the
twelve (12) consecutive months immediately following termination of that
employment by either party for any reason, and within the geographic area
within which OCC is conducting business at the time of termination of his
employment, he will not directly or indirectly participate in the
management of, render services similar to those he is providing hereunder
to, or work in the
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same or similar capacity in which he is employed hereunder for, any
business which competes with OCC or is engaged in the same or similar
business conducted by OCC during the period of Xxxxxx'x employment with
OCC; nor will he call on, solicit or deal with any customers or prospective
customer of OCC learned about or developed during Xxxxxx'x employment with
OCC for the twelve (12) consecutive months immediately following
termination of that employment by either party for any reason.
10. RETURN OF OCC PROPERTY: Immediately upon the termination of his employment
with OCC, Xxxxxx will turn over to OCC all keys, passwords, computers,
notes, memoranda, notebooks, drawings, records, documents, and all computer
program source listings, object files, and executable images or other
information or materials obtained from OCC or developed or modified by him
as part of his work for OCC which are in his possession or under his
control, whether prepared by him or others, relating to any work done for
OCC or relating in any way to the business of OCC or its customers, it
being acknowledged that all such items are the sole property of OCC.
11. BENEFITS: Xxxxxx shall be entitled to such vacation and benefits of OCC as
OCC may from time to time establish for employees of similar positions,
responsibilities and seniority, provided that Xxxxxx will receive at least
three (3) weeks of vacation per year.
12. BINDING ON OTHER PARTIES: This Agreement shall be binding upon and inure to
the benefit of Xxxxxx, his heirs, executors and administrators, and shall
be binding upon and inure to the benefit of OCC and its successors and
assigns.
13. ENFORCEMENT AND REMEDIES: This Agreement shall be enforced and construed in
accordance with the laws of the Commonwealth of Virginia.
Each party acknowledges that in the event of a breach or threatened breach
of the confidentiality or non-compete provisions set out in paragraphs 8
and 9 of the Agreement, damages at law will be inadequate and injunctive
relief is appropriate in addition to whatever damages may be recoverable.
Xxxxxx agrees to pay the costs, including attorneys fees, incurred by OCC
in enforcing the provisions of paragraphs 8 and 9.
Each and all of the several rights and remedies contained in or arising by
reason of this Agreement shall be construed as cumulative and no one of
them shall be exclusive of any other or of any right or priority allowed by
law or equity.
14. NOTICES: Any notice required or desired to be given under this Agreement
shall be deemed given if in writing sent by U.S. Mail to his last known
residence in the case of Xxxxxx or to its principal office in the case of
OCC.
15. SEVERABILITY: It is understood and agreed that, should any portion of any
clause or paragraph of this Agreement be deemed too broad to permit
enforcement to its full extent,
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then such restriction shall be enforced to the maximum extent permitted by
law, and the parties hereby consent and agree that such scope may be
modified accordingly in a proceeding brought to enforce such restriction.
Further, it is agreed that, should any provision in the Agreement be
entirely unenforceable, the remaining provisions of this Agreement shall
not be affected.
16. ASSIGNMENT: Xxxxxx may not transfer, pledge, encumber, assign, anticipate,
or alienate all or any part of this Agreement.
17. PRIOR AGREEMENT; MODIFICATION: No modifications or waiver of this
Agreement, or of any provision thereof, shall be valid or binding, unless
in writing and executed by both parties hereto. No waiver by either party
of any breach of any term or provision of this Agreement shall be construed
as a waiver of any succeeding breach of the same or any other term or
provision.
WHEREOF, the parties have executed this Agreement as of the day and year first
written above.
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
Optical Cable Corporation
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Independent Board Member and
Member of the Compensation Committee
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Independent Board Member and
Member of the Compensation Committee
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AMENDMENT TO
OPTICAL CABLE EMPLOYMENT AGREEMENT
The foregoing Agreement hereby is amended as follows:
The opening paragraph is amended to reflect the correct effective date of
November 1, 2001.
Numbered Paragraph 2 on Page 1 is amended to reflect "The term of this
Agreement shall begin on November 1, 2001, and shall terminate on the 31/st/ day
of October 2003."
Numbered Paragraph 3.a. is amended to reflect the commencement date of
employment under the Agreement as November 1, 2001.
OPTICAL CABLE CORPORATION
Date: By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Independent Board Member and
Member of the Compensation Committee
Date: By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Independent Board Member and
Member of the Compensation Committee
Date: By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
