EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of December 31, 1996, by and between Glasgal Communications, Inc., a Delaware
corporation located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the
"Company") and Xxxxxx X. Xxxx XX, residing at Clinch Road, Herndon, Virginia
20170-2412 (the "Executive").
IN CONSIDERATION of the covenants and agreements set forth herein, and
other good and valuable consideration (the receipt and sufficiency of which is
hereby acknowledged) the parties covenant and agree as follows:
1. EMPLOYMENT OF EXECUTIVE. The Company hereby employs the Executive as
its Senior Vice President on a full-time basis to perform the duties and
responsibilities incident to such offices, subject at all times to the control
and direction of the Board of Directors of the Company (the "Board").
2. ACCEPTANCE OF EMPLOYMENT; TIME AND ATTENTION. The Executive hereby
accepts such employment and agrees that throughout the Employment Period (as
hereinafter defined), he will devote such full time, attention, knowledge and
skills, faithfully, diligently and to the best of his ability, in furtherance of
the business of the Company as are necessary to perform the duties and
responsibilities assigned to him pursuant to Section 1 hereof, subject, at all
times, to the direction and control of the Board and the Chief Executive Officer
of the Company. The Executive shall at all times be subject to, observe and
carry out such rules, regulations, policies, directions and restrictions as the
Company shall from time to time establish.
3. TERM. The Company agrees to employ the Executive and the Executive
agrees to serve, on the terms and conditions of this Agreement, for a period
commencing as of January 1, 1997 and ending on December 31, 1999, unless earlier
terminated in accordance with Section 12 hereof (the "Employment Period").
4. COMPENSATION. For all services rendered by the Executive under this
Agreement, the Company shall pay the Executive the following:
(a) a base salary of $155,000 per annum, payable in
equal, bi-weekly installments, or such other greater
amount as the Board may determine at its sole
discretion upon an annual review (the "Base Salary").
The Base Salary shall be increased annually,
beginning January 1, 1998, by a percentage equal to
the percentage by which the
Consumer Price Index for Urban Wage Borrowers and
Clerical Workers: Xxx Xxxx, X.X. - Xxxxxxxxxxxx Xxx
Xxxxxx (0000-00 equals 100), as published by the
Bureau of Labor Statistics of the United States
Department of Labor, shall have increased over the
preceding year (the "CPI Adjustment"). The CPI
Adjustment shall be made as soon as possible, but in
no event later than fifteen (15) days after the date
upon which the Bureau of Labor publishes its consumer
price index statistics for the month of December. Any
portion of the increase in the Executive's
compensation retroactively due shall be payable
immediately upon determination of the adjustment. If
publication of the Consumer Price Index is
discontinued, the parties hereto shall accept
comparable statistics on the cost of living for the
New York, N.Y. - Northeastern New Jersey area as
computed and published by an agency of the United
States or by a responsible financial periodical of
recognized authority then to be selected by the
parties. Notwithstanding anything herein to the
contrary, in no event shall the CPI Adjustment be
less than the cost of living increase in compensation
granted to other senior executives of the Company;
(b) In addition to his Base Salary hereunder, the
Executive shall be entitled to an additional cash
bonus (the "Cash Incentive Bonus") during each annual
period of the Employment Period of this Agreement
commencing with the annual period January 1, 1997 to
December 31, 1997, based upon achieving the Company's
Projected EBIT (as defined below). As used herein,
"EBIT" shall mean, with respect to any annual period
hereunder, the sum of the consolidated net income (or
loss) for the Company and each of its subsidiaries
for such period calculated in accordance with
generally accepted accounting principles, excluding
therefrom any extraordinary items of income or loss,
plus all amounts deducted therefrom on account of
income taxes and interest expense. The Cash Incentive
Bonus shall be computed as follows: (i) if the
Company's actual EBIT for the annual period ending
December 31, 1997 is $8,100,000 and the Company's
actual EBIT for the annual periods ending December
31, 1998 and 1999 are equal to EBIT projections which
shall be mutually determined in good faith by the
Company's Board of Directors and the Executive prior
to such annual period (the "Projected EBIT") the
Executive shall receive a Cash Incentive Bonus of
$45,000 for each such period in which Projected
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EBIT is met; and (ii) if the Company's actual EBIT
exceeds the Projected EBIT for such annual period,
the Executive shall receive, in addition to the
amount earned pursuant to Section 4(b)(i), an amount
equal to 2.5% of such excess, provided, however, that
such amount earned pursuant to Section 4(b)(ii) for
each annual period shall not exceed $75,000. [For
each annual period in the the Employment Period,
one-half of the Cash Incentive Bonus shall be
determined no later than ninety (90) days after the
end of each six month period and paid promptly
thereafter and the other one-half of the Cash
Incentive Bonus shall be determined no later than
ninety (90) days after the end of each annual month
period and paid promptly thereafter-- How? EBIT
performance numbers are annual].
(c) In addition to the Base Salary and the Cash Incentive
Bonus payable hereunder, the Executive shall be
entitled to receive the options to purchase shares of
the Company's Common Stock (the "Option Incentive
Bonus") during each annual period of the Employment
Period of this Agreement commencing with the annual
period January 1, 1997 to December 31, 1998, based
upon achieving the Company's Projected EBIT for such
period. The Option Incentive Bonus shall be computed
as follows: (i) if the Company's actual EBIT is 85%
of Projected EBIT for such annual period, the
Executive shall receive options to purchase 40,000
shares of common stock, par value $.001 per share of
the Company (the "Common Stock"); (ii) if the actual
EBIT is 100% of Projected EBIT for such annual
period, the Executive shall receive, in addition to
the options received pursuant to clause (i) of this
sentence, options to purchase an additional 20,000
shares of Common Stock; and (iii) if the actual EBIT
exceeds 100% of the Projected EBIT, the Executive
shall receive, in addition to the options received
pursuant to clauses (i) and (ii) of this sentence,
options to purchase such number of shares of Common
Stock as shall equal the number derived by
multiplying (.025) and the positive difference
between the actual EBIT and the Projected EBIT for
such period. The Option Incentive Bonus shall be
determined no later than ninety (90) days after the
end of each annual period and granted immediately
upon such determination. Such options shall have an
exercise price equal to the fair market value on the
date of grant (as computed using the average of the
last trade price over the five consecutive trading
days
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immediately preceding the date of grant) and shall
vest as follows: 1/3 on the grant date, 1/3 on the
first anniversary of the grant date and 1/3 on the
second anniversary of the grant date.
The parties agree that the Company is authorized to deduct
from the Base Salary and Cash Incentive Bonus of the Executive, and any other
compensation paid to the Executive, such sums as are required by law to be
deducted or withheld.
5. EXECUTIVE BENEFITS. The Executive shall be entitled to receive the
following benefits from the Company:
(a) The Company shall pay or reimburse the Executive for
the cost of insurance, maintenance, repair and
gasoline for his automobile, provided, however, that
such expenses are reasonably related to the Company's
business;
(b) The Company shall provide the Executive and his
family with medical insurance consistent with the
Company's current and future medical plans for its
senior executives;
(c) The Company shall provide the Executive with annual
dental benefits consistent with the Company's current
dental plan for its senior executives;
(d) The Company shall reimburse the Executive on a
quarterly basis for payments made under his long-term
disability insurance policy in an amount not to
exceed $[ ] per quarterly period;
(e) The Executive shall be entitled to participate in
the Company's stock option plan as available to all
senior executives of the Company, subject to the
discretion of the Board; and
(f) The Executive shall be entitled to twenty three (23)
days of paid vacation for each 12 month period during
the Employment Period. Any vacation shall be taken at
the reasonable and mutual convenience of the Company
and the Executive.
6. REIMBURSEMENT OF EXPENSES. The Company shall reimburse the Executive
in accordance with its applicable policies for all expenses reasonably incurred
by Executive in connection with the performance of his duties hereunder and the
business of the Company, upon the submission to the Company of appropriate
receipts or vouchers.
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7. D&O INSURANCE COVERAGE. The Company shall use its best efforts to
obtain and maintain, at the Company's cost and expense, directors' and officers'
liability insurance coverage for the directors and officers of the Company,
including the Executive. Nothing herein shall be deemed to require the Company
to provide such coverage for the Executive if it is not then providing such
coverage generally to its directors and officers.
8. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company, its subsidiaries and any of its
affiliates all information, knowledge and data relating to or concerned with the
Company, its subsidiaries and any of its affiliate's operations, sales, business
and affairs, and he shall not, at any time, either during the Employment Period
or after the termination of the Executive's employment with the Company, use,
disclose or divulge any such information, knowledge or data to any person, firm
or corporation (unless the Company no longer treats such information as
confidential) other than to the Company or its designees and employees or except
as may otherwise be required in connection with the business and affairs of the
Company; PROVIDED, HOWEVER, that the Executive may disclose or divulge such
information, knowledge or data that is or becomes generally available to the
public through no wrongful act on the Executive's part or where such disclosure
is legally compelled by judicial or administrative action, provided that the
Executive agrees to give the Company prompt notice of any such judicial or
administrative action to enable the Company to seek an appropriate protective
order.
9. INTELLECTUAL PROPERTY. Any idea, invention, design, written
material, manual, system, procedure, improvement, development or discovery
conceived, developed, created or made by the Executive alone or with others
relating to the businesses of the Company or any of its subsidiaries during the
Employment Period and, whether or not patentable or registrable, shall become
the sole and exclusive property of the Company. The Executive shall disclose the
same promptly and completely to the Company and shall, during the Employment
Period and at any time and from time to time hereafter (i) execute all documents
requested by the Company for vesting in the Company the entire right, title and
interest in and to the same, (ii) execute all documents requested by the Company
for filing and prosecuting such applications for patents, trademarks, service
marks and/or copyrights as the Company, in its sole discretion, may desire to
prosecute, and (iii) give the Company all assistance it reasonably requires,
including the giving of testimony in any suit, action or proceeding, in order to
obtain, maintain and protect the Company's right therein and thereto.
10. EQUITABLE RELIEF. The parties hereto acknowledge that the
Executive's services are unique and that, in the event of a breach or a
threatened breach by the Executive of any of his obligations under this
Agreement, the Company shall not have an
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adequate remedy at law. Accordingly, in the event of any such breach or
threatened breach by the Executive, the Company shall be entitled to such
equitable and injunctive relief as may be available to restrain the Executive
and any business, firm, partnership, individual, corporation or entity
participating in such breach or threatened breach from the violation of the
provisions hereof. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies available at law or in equity for such breach
or threatened breach, including the recovery of damages and the immediate
termination of the employment of the Executive hereunder.
11. CHANGE OF CONTROL.
(a) If prior to the expiration of the Employment Period, there
is a Change of Control (as such term is defined herein) and thereafter any of
the following occur: (a) the Executive is placed in any position of lesser
stature than that of Senior Vice President of the Company; is assigned duties
inconsistent with Senior Vice President or duties which, if performed, would
result in a significant change in the nature or scope of powers, authority,
functions or duties inherent in such positions on the date hereof; is assigned
performance requirements or working conditions which are at variance with the
performance requirements and working conditions in effect on the date hereof; or
is accorded treatment on a general basis that is in derogation of his status as
Senior Vice President; (b) any breach of Paragraphs 4, 5, 6, or 7, inclusive, of
this Agreement; or (c) any requirement of the Company that the location at which
the Executive performs his principal duties for the Company be outside a radius
of 50 miles from the location at which the Executive performed such duties
immediately prior to the Change of Control, then the Agreement shall be deemed
to have been terminated by the Company otherwise than by reason of Cause and the
Company shall pay to Executive within five days after notice from Executive to
such effect, as liquidated damages, a lump sum cash payment equal to 2.99 times
the "base amount" of Executive's compensation. For purposes hereof, "base
amount" shall have the meaning provided in Section 280G (b) (2) (A) of the
Internal Revenue Code of 1986, as amended, and the Proposed Regulations
thereunder.
(b) For the purposes of this Agreement, a Change of Control
means (i) the direct or indirect sale, lease, exchange or other transfer of all
or substantially all (50% or more) of the assets of the Company to any person or
entity or group of persons or entities acting in concert as a partnership or
other group (a "Group of Persons"), (ii) the merger, consolidation or other
business combination of the Company with or into another corporation with the
effect that the shareholders of the Company, as the case may be, immediately
following the merger, consolidation or other business combination, hold 50% or
less of the combined voting power of the then outstanding securities of the
surviving corporation of such merger, consolidation or other business
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combination ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors, (iii) the
replacement of a majority of the Company's Board in any given year as compared
to the directors who constituted the Company's Board at the beginning of such
year, and such replacement shall not have been approved by the Company's Board,
as the case may be, as constituted at the beginning of such year, (iv) a person
or Group of Persons shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have become the
beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended) of securities of the Company representing 50% or more
of the combined voting power of the then outstanding securities of such
corporation ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors.
12. EARLY TERMINATION.
(a) The Employment Period shall terminate without action on
the part of the Company upon the death of the Executive. The Employment Period
shall also terminate upon 30 days written notice by the Company to the
Executive, (i) in the event that the Executive shall become "Permanently
Incapacitated" (as hereinafter defined); or (ii) for "Cause" (as hereinafter
defined). The Employment Period shall also terminate upon written notice by the
Executive to the Company for "Good Reason" (as hereinafter defined);
(b) For purposes of this Agreement, the Executive shall be
deemed Permanently Incapacitated in the event that the Executive shall, by
reason of his physical or mental disability as determined by the Executive's
physician or a physician designated by the Company, fail to substantially
perform his usual and regular duties for the Company for a period of 120
consecutive days or for an aggregate of 120 days in any consecutive six month
period.
(c) For purposes of this Agreement, "Cause" shall mean any
criminal conviction of the Executive for an offense involving the
misappropriation of funds or material property of the Company, or willful and
repeated refusal of the Executive to follow the lawful directives of the Board
for the performance of material duties which the Executive is required to
perform hereunder (other than for reason of becoming Permanently Incapacitated),
after at least ten (10) days prior written notice by the Company providing the
Executive with an opportunity to cure such failure.
(d) For purposes of this Agreement, "Good Reason" shall mean
any diminution of the Executive's position, duties, responsibilities or
compensation as Senior Vice President of the Company or the geographic
relocation of the Executive's position as Vice President- Federal and Enterprise
Systems.
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(e) In the event the Employment Period is terminated by reason
of the Executive's death, the Company shall, within 30 days, pay to the
Executive's estate the Base Salary, as adjusted, to and including the date of
such termination, any unpaid bonus payments previously determined by the Board
and all expense reimbursements due the Executive.
(f) In the event the Employment Period is terminated (i) by
the Company for Cause, or (ii) by the Executive without Good Reason, the Company
shall, within 30 days, pay to the Executive his Base Salary, as adjusted, to and
including the date of such termination, any unpaid bonus payments previously
determined by the Board and all expense reimbursements due the Executive.
(g) In the event the Employment Period is terminated due to
the Executive becoming Permanently Incapacitated, the Company shall, within 30
days, pay to the Executive an amount equal to six months of his Base Salary, as
adjusted, to and including the date of such termination, any unpaid bonus
payments previously determined by the Board and all expense reimbursements due
the Executive.
(h) In the event the Employment Period is terminated (i) by
the Company without Cause, or (ii) by the Executive with Good Reason, the
Company shall, within 30 days, pay to the Executive an amount equal to the total
of all payments of Base Salary for the remainder of the Employment Period, but
in no event shall such payment be less than $200,000. In addition, the Executive
shall be entitled to any unpaid bonus payments previously determined by the
Board for the remainder of the Employment Period, shall be paid for accrued but
unused vacation time determined on a pro-rata basis and shall be entitled to the
benefits provided pursuant to Section 5 hereof for the remainder of the
Employment Period. Notwithstanding anything to the contrary herein, no payment
shall be made to the Executive under this Section 12(h) if the Executive is paid
liquidated damages following a Change of Control of the Company as set forth in
Section 11(a) above.
13. PURCHASE OF OPTIONS.
In the event the Executive is entitled to liquidated damages
upon a Change of Control as provided in Section 11(a) hereof or if the
Employment Period is terminated by the Company without Cause, or by the
Executive with Good Reason, the Company shall purchase from the Executive, any
and all stock options granted by the Company and held by the Executive at the
time of termination or Change of Control, whether or not vested, for a price
equal to the Option Purchase Amount. The Option Purchase Amount shall mean the
average closing bid price of the Company's Common Stock on the Nasdaq Small-Cap
market or such other market in which the Company's Common Stock is then traded
over five (5) trading days prior to the termination less the exercise price of
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such options. In the event the Option Purchase Amount is not paid to the
Executive within five business days of the occurrence of any triggering event
described in the first sentence of this Section 13, the Option Purchase
Agreement shall accrue interest at an interest rate of 10% per annum, until the
Option Purchase Amount, plus such accrued interest, is paid to the Executive.
The Executive shall also continue to receive his Base Salary, and be entitled to
all benefits described in Section 5, until payment of the Option Purchase
Amount, plus interest, if any, at which time payment of the Base Salary and
entitlement to the benefits described in Section 5 shall terminate unless
otherwise provided in this Agreement.
14. ARBITRATION OF ALL DISPUTES.
(a) Any controversy or claim arising out of or relating to
this Agreement or the breach thereof (including the arbitrability of any
controversy or claim), shall be settled by arbitration in the City of New York,
State of New York, by three arbitrators, one of whom shall be appointed by the
Company, one by the Executive and the third of whom shall be appointed by the
first two arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator, then the third arbitrator shall be appointed
by the American Arbitration Association. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association, except with
respect to the selection of arbitrators which shall be as provided in this
Section. The cost of any arbitration proceeding hereunder shall be borne equally
by the Company and the Executive. In the absence of fraud, the award of the
arbitrators shall be binding upon the parties and judgment thereon may be
entered in any court having jurisdiction thereof.
(b) In the event that it shall be necessary or desirable for
the Executive to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any or all of his rights under this
Agreement, and provided that the Executive substantially prevails in the
enforcement of such rights, the Company shall pay (or the Executive shall be
entitled to recover from the Company, as the case may be) the Executive's
reasonable attorneys' fees and costs and expenses in connection with the
enforcement of his rights, including the enforcement of any arbitration award up
to $50,000 in the aggregate.
15. ENTIRE AGREEMENT; AMENDMENT. This agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter.
No amendment to or modification of this Agreement shall be valid or binding
unless made in writing and signed by the party against whom enforcement thereof
is sought.
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16. NOTICES. Any notice or other communication required or permitted to
be given by this Agreement shall be writing and shall be effectively given if:
(a) delivered personally by hand;
(b) sent by prepaid courier service;
(c) sent by registered mail; or
(d) sent by prepaid telecopier, telex or other similar
means of electronic communication and confirmed by
mailing the original document so sent by prepaid mail
on the same or following day, in each case addressed
as follows:
(i) if to the Executive:
Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000-0000
(ii) if to the Company:
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxx
Telecopier No. (000) 000-0000
or at such other address as the party to whom such notice or other communication
is to be given shall have advised the party giving same in the manner provided
in this Section. Any notice or other communication delivered personally or by
prepaid courier service shall be deemed to have been given and received on the
day it is so delivered at such address, provided that if such day is not a
business day such notice or other communication shall be deemed to have been
given and received on the next following business day. Any notice or other
communication sent by registered mail shall be deemed to have been given and
received on the third business day following the date of mailing. Any notice or
other communication transmitted by telecopier, telex or other similar form of
electronic communication shall be deemed given and received on the day of its
transmission provided that such day is a business day and such transmission is
completed before 5:00 p.m. on such day, failing which such notice or other
communication shall be deemed given and received on the first business day after
its transmission. Regardless of the foregoing, if there is a mail stoppage or
labor dispute or threatened labor dispute which has affected or could affect
normal mail delivery, then no notice or other communication may be delivered by
registered mail. If there has been a mail stoppage and if a party sends a notice
or other communication by telecopier, telex or other similar means of electronic
communication, such party shall be relieved from the obligation to mail the
original document in accordance with this
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Section. "Business day" means any day other than a Saturday, a Sunday or a
statutory holiday observed in New York City, New York.
17. WAIVERS. No course of dealing nor any delay on the part of any
party hereto in exercising any rights hereunder shall operate as a waiver of any
such rights. No waiver of any default or breach of this Agreement shall be
deemed a continuing waiver or a waiver of any other breach or default.
18. GOVERNING LAW. This Agreement shall be governed, interpreted and
construed in accordance with the laws of the State of New Jersey, except that
body of law relating to choice of laws.
19. INVALIDITY. If any clause, paragraph, section or part of this
Agreement shall be held or declared to be void, invalid or illegal, for any
reason, by any court of competent jurisdiction, such provision shall be
ineffective but shall not in any way invalidate or affect any other clause,
paragraph, section or part of this Agreement.
20. FURTHER ASSURANCES. Each of the parties shall execute such
documents and take such other actions as may be reasonably requested by the
other party to carry out the provisions and purposes of this Agreement in
accordance with its terms.
21. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts which may be by facsimile, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
GLASGAL COMMUNICATIONS, INC.
/S/ XXXXXX X. XXXX By: /S/ XXXXX XXXX
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XXXXXX X. XXXX XX Name: XXXXX XXXX
Title: Chief Executive
Officer
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