Exhibit 10(s)
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT, dated as of April 1, 2003, 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 Xxxxxxx
Xxxxx, who resides at 00 Xxxxxxx Xxxx, Xxxxxxxxxx Xxxxxxx, XX 00000
("Employee").
W I T N E S S E T H :
WHEREAS, Employee is currently employed as the Senior Vice President -
Sales 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 - Sales of the Company, upon the terms and
conditions hereinafter set forth, for a period commencing on April 1, 2003 and
ending on March 31, 2006, 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 $160,000 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 a sales incentive bonus plan (the "Plan"). Employee
hereby acknowledges that bonuses under the Plan are awarded in the sole
discretion of the Board of 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.
2
(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, 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
3
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 breach 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 prior to the expiration of the Employment Period 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 of one year from the date upon which such termination shall take effect.
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 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
4
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 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
5
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.
(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
6
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.
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
7
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 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
8
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 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.
9
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.
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
10
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 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
11
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.
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: /s/ XXXXXXXX X. XXXXX
-----------------------------------
Xxxxxxxx X. Xxxxx
Vice President, Administration and
Corporate Secretary
12
/s/ XXXXXXX XXXXX
-----------------------------------
Xxxxxxx Xxxxx
13
