Exhibit 10.3
TELEBYTE TECHNOLOGY, INC.
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
January 20, 1999
Xx. Xxxx Xxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Termination Agreement
Dear Xxxx:
This agreement (this "Termination Agreement") shall confirm the
understanding between Telebyte Technology, Inc. (the "Company") and Xxxx X.
Xxxxxx (the "Employee") with respect to the termination of the Employee's
employment with the Company. Both the Company and the Employee acknowledge and
agree that all rights and obligations of the parties hereunder shall be governed
by and subject to the following terms and conditions. This Termination Agreement
is being executed and delivered by the Employee pursuant to the terms of that
certain Stock Purchase Agreement dated January 20, 1999 by and between the
Company and the Employee (the "Stock Purchase Agreement").
1. Employment Termination. (a) The parties acknowledge and agree that,
effective immediately (the "Termination Date"), the Employee's employment with
the Company is hereby terminated in all capacities whatsoever. Accordingly,
those agreements more fully described on Schedule 1 attached hereto and made a
part hereof (collectively, the "Employment Agreements"), and any and all
obligations of the Company to the Employee or for the Employee's benefit
incurred prior to the date hereof, are hereby terminated and of no further force
or effect, and neither the Employee nor the Company shall have any further
liability or obligation thereunder. Without limiting the generality of the
foregoing, the parties acknowledge and agree that the foregoing does not affect
that certain Consulting Agreement of even date between the Company and the
Employee (the "Consulting Agreement). Notwithstanding the foregoing, the Company
is not, in any respect, released by the Employee for any liability or obligation
to the Employee arising out of (i) any right of the Employee pursuant to the
Company's By-Laws, Certificate of Incorporation or law, to be indemnified for
his conduct as an officer, director or employee of the Company, (ii) any claim
of the Employee arising out of the Employee's enforcement of his rights under
the Stock Purchase Agreement, Consulting Agreement, this Termination Agreement
and/or Agreement and Release contemplated to be entered into pursuant to the
Stock Purchase Agreement, or (iii) any benefit plan maintained by the Company
for its employees generally pursuant to which the Employee accrued benefits
prior to the date of the Consulting Agreement. Notwithstanding the foregoing,
the Employee is not released by theCompany for any liability or obligation to
the Company arising out of the Stock Purchase Agreement, the Consulting
Agreement, this Termination Agreement and/or Agreement and Release
(b) Upon the execution of this Termination Agreement, the
Company will transfer ownership of deferred compensation insurance policy to the
Employee, free and clear of all liens and encumbrances, and the Employee shall
assume, and hereby does assume, all obligations arising from or in connection
with such policy accruing and/or payable on and after the date hereof.
2. Resignation. By executing this Termination Agreement, effective
immediately, the Employee voluntarily and irrevocably resigns from all
capacities and positions with the Company, including but not limited to the
office of President and as a Director. The Employee understands and agrees that,
from and after the date hereof, except as expressly provided herein, the Company
shall have no obligation to the Employee, whether for compensation, payments,
benefits or otherwise, arising under or relating to the Employee's employment
with the Company, the termination thereof, the Employment Agreements, or
otherwise.
3. Accrued Vacation. Expense Reimbursement. The Employee acknowledges and
agrees that the Employee has been paid for all accrued vacation time through the
Termination Date and has been reimbursed for all costs and expenses that the
Employee incurred at any time on behalf of the Company.
4. Release Agreement. The Employee acknowledges that the Employee has, at
least seven (7) days prior to the date hereof, executed and delivered to the
Company an Agreement and Release (the "Release Agreement"). The Employee hereby
acknowledges and confirms the representations, covenants and agreements made by
the Employee in the Release Agreement, which Release Agreement is incorporated
herein by reference in its entirety.
5. Return of Property. Concurrently with the execution of this Termination
Agreement, the Employee is returning (or has returned) to the Company all
Company Property, as such term is defined in the Stock Purchase Agreement, in
the Employee's possession. The Employee acknowledges and agrees that the
Employee will be responsible for promptly reimbursing the Company for any
charges and expenses that were not directly related to the Company's business
and which were incurred by the Employee during the fifteen (15) days prior to
the date hereof arising out of the use of any of the aforementioned property and
which are discovered by the Company after the date hereof.
6. Confidential Information. (a) (i) The Employee acknowledges and agrees
that it is the policy of the Company to maintain as secret and confidential all
valuable information, not otherwise available to the general public, heretofore
or hereafter acquired, developed or used by the Company relating to its
business, operations, employees and customers which may give the Company a
competitive advantage in its industry (all such information is referred to
herein as "Confidential Information"). Excluded from the term Confidential
Information is information which
is or becomes generally available to the public other than as a result of a
disclosure by the Employee or breach of an agreement of confidence. The Employee
recognizes that, by reason of the Employee's employment with the Company, the
Employee has acquired Confidential Information. The Employee further
acknowledges that such Confidential Information is the property of the Company
and is of great value to the Company. The Employee confirms that it is necessary
to protect the Company's goodwill, and, accordingly, hereby agrees that the
Employee will not, directly or indirectly, at any time, use, publish,
disseminate or otherwise disclose any Confidential Information. In furtherance
of the foregoing, the Employee expressly waives and renounces any claims, and
hereby assigns and transfers to the Company, free and clear of any and all liens
or encumbrances, any and all of the Employee's right, title and interest, if
any, in and to any and all Confidential Information, and the Employee hereby
represents and warrants to the Company that the Employee has full legal right
and capacity to effectuate such assignment and transfer.
(ii) In the event that the Employee is requested or required (by oral
questions, interrogatories, requests for information or document, subpoena or
similar processes) by a court of competent jurisdiction or by a government
agency to disclose any of the Confidential Information, it is agreed that the
Employee will (i) promptly notify the Company in writing of the existence, terms
and circumstances surrounding any such request and cooperate with the Company so
that the Company may, in addition to any other rights or remedies it may have,
seek an appropriate protective order; and (ii) consult with the Company on the
advisability of taking steps to resist or narrow the request. If, in the absence
of a protective order or the receipt of a waiver hereunder, the Employee is
nonetheless, in the opinion of counsel, reasonably acceptable to the Company,
legally required to disclose the Confidential Information, the Employee shall
furnish only that portion of the Confidential Information as the Employee is
advised by such legal counsel is legally required to be disclosed in order to
prevent the Employee from being held liable for contempt or other censure or
penalty.
(b) The Employee acknowledges and agrees further that the
terms and conditions of this Termination Agreement constitute Confidential
Information, and, therefore, the Employee shall not disclose any of such terms
and conditions to any third party absent the prior written consent of the
Company [except with regard to the Employee's spouse, immediate family or
professional advisors (who the Employee shall advise of this agreement of
confidence and who, prior to any such disclosure, shall agree to be bound by the
terms hereof)]; provided, however, that the foregoing shall not restrict the
Employee from advising any future employer of the Employee that the Employee is
subject to certain restrictive covenants as set forth in Paragraph 7 hereof.
7. Restrictive Covenants. (a) Unless the Company is in breach of its
obligations under Section 3 of the Consulting Agreement which breach is not
remedied by the Company within thirty (30) days of the Company's receipt of
written notice thereof from the Employee hereunder, during the four (4) year
period commencing with the date hereof, the Employee will not at any time,
without the prior written approval of the Company, directly or indirectly,
anywhere throughout the world, whether individually or as a principal, officer,
employee, partner, director, shareholder, member, manager, agent of or
consultant for any entity, except as expressly provided below (i) engage or
participate in a business which is similar to or competitive with, directly or
indirectly, that of the Company, and shall not make any investments in any such
similar or competitive entity (except that the foregoing shall not prohibit the
Employee from acquiring up to two (2%) percent of the outstanding capital stock
of any such entity if the securities of such entity are listed on a national
securities exchange or quoted on the Nasdaq system); (ii) except for Xxxxxx
Xxxxxx, cause or seek to persuade any director, officer, employee, customer,
account, agent or supplier of the Company to discontinue the status, employment
or relationship of such person or entity with the Company, or (including,
without limitation, Xxxxxx Xxxxxx) to become employed in any activity similar to
or competitive with the activities of the Company; (iii) cause or seek to
persuade any prospective customer or account of the Company (which during the
year prior to the date hereof was actively being solicited by the Company) to
determine not to enter into a business relationship with Company; (iv) except
for Xxxxxx Xxxxxx, hire or retain any director, officer or employee of the
Company; or (v) solicit or cause or authorize to be solicited, for or on behalf
of himself or any third party, any business which is competitive, directly or
indirectly, with the Company from (a) others who are, or were within one (l)
year prior to the date hereof, customers or accounts of the Company, or (b) any
prospective customer or account of the Company which was then actively being
solicited by the Company.
(b) Notwithstanding the foregoing, the Employee shall not be
deemed to be in breach of any of the foregoing provisions of Section 7(a)
hereof:
(i) by engaging in the design, manufacturing, promotion and/or sale
(even to customers of the Company) of data communications products
which exclusively employ wireless communications as the transmission
medium for transmitting information bearing signals between two or
more communications products; and/or
(ii) by engaging in the design, manufacturing, promotion and/or sale
(even to customers of the Company) of data communications products
which employ plastic fiber optic cables (where both core and cladding
is plastic) as the transmission medium for transmitting information
bearing signals between two or more communications products; provided
(A) such products do not provide "acceptable" performance when used
with glass fiber optic cables as the transmission medium for
transmitting information bearing signals between two or more
communications products, (B) such products are manufactured from
designs which conform to the restrictions on designs, stated above,
with regards to performance on glass fiber optic cables as the
transmission medium for transmitting information bearing signals
between two or more communications products, (C) such products are not
promoted as devices to be used with glass fiber optic cables as the
transmission medium for transmitting information bearing signals
between two or more communications products, and (D) such products are
not sold to any customer on the basis that the Employee has
communicated to the customer, in any oral, verbal, written or other
manner, that the products can be used with glass fiber optic cables as
the transmission medium for transmitting information bearing signals
between two or more communications products.
(iii) For purposes of Section 7(b)(ii) hereof the term "acceptable"
shall mean that the device is capable of the delivery of data over a
length of 500 meters or more of multimode 62.5/125 glass fiber optic
cables transmission medium at a Bit Error Rate of 1 bit in
1,000,000 or less (Bit Error Rate being measured by the transmission
of pseudorandom data known as the "511" test without the benefit of
forward error correcting coding).
(iv) It is understood that, if the Employee is in compliance with the
above, then the Employee will not be held responsible by the Company
for the use by any customer of such products with glass fiber optic
cables as the transmission medium for transmitting information bearing
signals between two or more communications products; provided that the
Employee does not give post-sale support to enable the customer to use
such products with glass fiber optic cables as the transmission medium
for transmitting information bearing signals between two or more
communications products.
(v) For purposes of Section 7(b)(iv) hereof, the term "post-sale
support" shall mean any oral, verbal, written communications or
assistance in any manner rendered by the Employee to the customer.
8. Nondisparagement. The Company and the Employee, respectively, agree that
neither shall make any statement, written or oral, to any officer, director,
employee, consultant, agent, independent contractor, client, or potential client
or customer of the other, or other person or entity, or otherwise in general to
the public or business community, or take any action, directly or indirectly,
that disparages or is likely to diminish the reputation of the other, or with
respect to the Company, any officer, director, employee, consultant, agent or
independent contractor of the Company, or which would adversely affect (i) the
ability of any of the foregoing to obtain financing or otherwise enter into or
consummate any business transaction, or (ii) the goodwill, business or
reputation of any of the foregoing.
9. Governing Law. This Termination Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to its conflicts of law rules or principles.
10. Jurisdiction and Venue.
(a) In the event that the courts of any one or more jurisdiction,
county,province or governmental entity etc. (collectively "Jurisdictions") shall
hold such covenants wholly unenforceable by reason of the breadth of their scope
or otherwise, it is the intention of the parties hereto that such determination
not bar or in any way affect the Company's right to the relief provided above in
the courts of any other jurisdiction as to breaches of such covenants as they
relate to each Jurisdiction being, for this purpose, severable into diverse and
independent covenants.
(b) The Employee hereby irrevocably consents and submits to
the jurisdiction of all federal and state courts within the State of New York in
connection with any matter relating to this Termination Agreement. Except as
otherwise provided in Section 10(a), the Company and the Employee hereby agree
that any claim or suit between them involving this Termination Agreement shall
be brought in and decided by the State or federal courts located in either
Nassau or Suffolk County, New York, and the Employee hereby irrevocably waives,
to the fullest extent possible, the
defense of forum non conveniens in the maintenance of any such claim or suit
brought in any such jurisdiction.
11. Entire Agreement. This Termination Agreement contains the full and
complete understanding and agreement of the parties hereto with respect to the
subject matter contained herein and supersedes all prior or contemporaneous
written or oral understandings or agreements with respect to the subject matter
hereof. No modification of this Termination Agreement shall be binding unless
made in writing and signed by the party hereto sought to be charged.
12. Binding Effect. This Termination Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors, assigns and legal representatives.
13. Equitable Relief; Breach. The Employee acknowledges and agrees that, in
the event the Employee shall violate or threaten to violate any of the
restrictions of Paragraphs 6, 7 or 8 hereof, the Company will be without an
adequate remedy at law and will therefore be entitled to enforce such
restrictions by temporary or permanent injunctive or mandatory relief in any
court of competent jurisdiction without the necessity of proving damages and
without prejudice to any other remedies which it may have at law or in equity,
it being understood that such remedy shall be in addition to any other remedies
which the Company may have at law or in equity.
14. Waiver; Severability. The waiver by either party of a breach of any
provision of this Termination Agreement shall not operate or be construed as a
waiver of any subsequent breach. If any provision, or part thereof, of this
Termination Agreement shall be held to be invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and not in
any way affect or render invalid or unenforceable any other provisions of this
Termination Agreement, and this Termination Agreement shall be carried out as if
such invalid or unenforceable provision, or part thereof, had been reformed, and
any court of competent jurisdiction is authorized to so reform such invalid or
unenforceable provision, so that it would be valid, legal and enforceable to the
fullest extent permitted by applicable law.
15. Notices; Deliveries. Any notice, delivery or other communication
required or permitted hereunder shall be sufficiently given if delivered by hand
or sent by certified mail, return receipt requested, facsimile transmission or
overnight mail or nationally recognized overnight courier, addressed as follows:
If to the Company:
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: President
Telecopier Number: (000) 000-0000
with a copy to:
Certilman Balin Xxxxx & Xxxxx, LLP
00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Telecopier Number: (000) 000-0000
If to the Employee:
0 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxx
EAB Plaza
Uniondale, New York 11556-0111
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopier Number: (000) 000-0000
or such other address as shall be furnished in writing by either such party, and
any notice, delivery or communication given pursuant to the provisions hereof
shall be deemed to have been given as of the date delivered or so mailed or
transmitted.
16. Counterparts; Headings. This Termination Agreement may be executed in
counterparts, each of which shall be an original, but all of which taken
together shall constitute one agreement. The headings contained in this
Termination Agreement are solely for the convenience of the parties, and are not
intended to and do not limit, construe or modify any of the terms and conditions
hereof.
17. Legal Counsel. The Employee acknowledges and agrees that the Employee
has been given an opportunity and has been encouraged by the Company to have
counsel of the Employee's choice review this Termination Agreement, and that the
Employee has read and understands this Termination Agreement and has signed it
freely and voluntarily.
If this Termination Agreement correctly sets forth our agreement with
respect to the subject matter contained herein, please so indicate by signing
where indicated below and returning it to the Company at the address set forth
above.
Very truly yours,
TELEBYTE TECHNOLOGY, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxxx Xxxxxxxxx, Vice-President
ACKNOWLEDGED AND AGREED:
/s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx, Individually
