EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") effective the 28th
day of October, 1996, by and between OPTEK TECHNOLOGY, INC., a
Delaware corporation, with principal executive offices at 0000 Xxxx
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxx 00000 (hereinafter referred to as
the "Company") and XXXXXX XXXXXXX, an individual residing at Xx. 0,
Xxx 000-0, Xxxxxxxx Xxx, Xxxxx 00000 (hereinafter referred to as
"Executive");
W I T N E S S E T H:
WHEREAS, Executive wishes to continue to be employed by the
Company, and Executive and the Company desire to enter into an
agreement relating to such employment;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein set forth, it is agreed as follows:
1. Employment. The Company employs Executive, and Executive
accepts employment by the Company, subject to the terms and
conditions set forth herein.
2. Term. Subject to the provisions hereof, the term of
Executive's employment by the Company under this Agreement shall be
for a period of two (2) years commencing on the date hereof;
provided, however, that at the end of each year of employment, the
term of employment shall be extended for an additional one-year
period unless, on or prior to the date three (3) months prior to
the end of such year of employment, the Company shall give written
notice to Executive or Executive shall give written notice to the
Company of an intention to terminate this Agreement, in which event
the term of employment shall comprise only the remaining one year
and three months of the then existing term of employment. The term
of Executive's employment hereunder, including any continuation or
extension of the original term, is hereinafter referred to as the
"Employment Period."
3. Position and Duties. During the Employment Period,
Executive shall serve as Vice President, Operations of the Company,
with such assignments, powers and duties as are assigned or
delegated to him by the Board of Directors of the Company. Such
assignments, powers and duties may, from time to time, be modified
by the Company, as needs may require. Executive shall also, at the
request of the Company, perform similar services for any Affiliate
(as hereinafter defined) of the Company without additional
compensation. Executive agrees to devote his full time, skill,
attention and energy to the business affairs of the Company and its
Affiliates to advance the best interests of the Company and its
Affiliates and shall not hold any other salaried position during
the Employment Period.
Nothing contained herein shall be construed to prevent
Executive from investing his assets in any form or manner or from
serving on the Boards of other corporations or charitable organiza-
tions or holding uncompensated positions with professional,
academic or industry organizations, provided such investments and
activities do not unreasonably interfere with Executive's perfor-
xxxxx of services on behalf of Company hereunder. As used in this
Agreement, the term "Affiliate" of the Company means any person or
corporation that, directly or indirectly through one or more
intermediaries, is controlled by the Company.
4. Compensation.
(a) For all services rendered by Executive to the Company
during the Employment Period, the Company shall pay Executive a
salary at the rate of One Hundred Twenty-One Thousand Dollars
($121,000.00) per year, payable, subject to such withholding as may
be required by law, in installments in accordance with the
Company's customary payroll practices.
(b) In addition, Executive shall be entitled to receive such
bonuses, based upon the performance of the Company as compared to
its annual budget, as shall be determined by duly adopted resolu-
tion of the Board of Directors of the Company or its duly autho-
rized Committees (the "Board"), which resolution may be adopted
either before or after actual performance against the budget has
been determined.
(c) Executive shall be entitled to such salary increases,
further compensation and reasonable expenses incurred in connection
with business of the Company, if any, as shall be authorized by the
Board.
5. Office Facilities. During the Employment Period, the
Company will furnish Executive, without charge, suitable office
facilities for the purpose of performing his duties hereunder,
which facilities shall include secretarial, telephone, clerical and
support personnel and services and shall be similar to those
furnished to employees of the Company having comparable positions.
6. Fringe Benefits; Vacations.
(a) During the Employment Period, Executive shall be entitled
to participate in or receive benefits under such pension, medical
and life insurance and other employee benefit plans of the Company
which may be in effect from time to time, to the extent he is
eligible under the terms of those plans, on the same basis as other
employees of the Company having comparable positions.
(b) Executive shall be entitled to twenty days of vacation
with pay during each year of employment, which vacation time shall
accrue pro rata during each year of employment according to the
portion of such year of employment during which Executive has
served.
7. Expenses. Subject to such policies regarding expenses
and expense reimbursement as may be adopted from time to time by
the Company and compliance therewith by Executive, Executive is
authorized to incur reasonable and necessary expenses in the
performance of his duties hereunder, and the Company will reimburse
Executive for such reasonable out-of-pocket expenses upon the
presentation by Executive of a reasonably itemized account and
receipts satisfactory to the Company.
8. Termination by Company.
(a) If Executive dies during the Employment Period, Company
shall pay to:
(i) the surviving spouse of Executive in the event of his
death, for so long as she survives; or,
(ii) the estate of Executive if Executive's spouse does
not survive him, or dies before expiration of the Employment
Period,
all amounts payable to Executive hereunder through the date of
death and the amounts which would otherwise be payable to Executive
pursuant to Section 4(a) hereof during the thirty (30) day period
immediately following the date of death, less any amounts payable
to Executive (or such spouse or estate) pursuant to any insurance
programs provided for Executive's benefit with premiums paid by
Company. All other rights of Executive under this Agreement shall
terminate concurrently with his death.
(b) The Company may terminate the employment of Executive at
any time upon written notice to Executive if Executive has (i)
breached an express term or provision of this Agreement and has
failed to remedy such breach within thirty (30) days of receipt by
Executive of notice of such breach; (ii) habitually neglected the
duties that Executive is required to perform under the terms of
this Agreement at any time within ninety (90) days after having
received a written notice from the Company that Executive has so
neglected such duties; or (iii) willfully violated reasonable and
substantial rules governing employee performance at any time within
ninety (90) days after having received a written notice from the
Company that Executive has so violated such rules. In the event of
termination of Executive's employment pursuant to this Section
8(b), Executive shall continue to receive salary at the rate
specified in Section 4(a) and, to the extent permitted by the
applicable plans, to participate in the benefits described in
Section 6 on a month-to-month basis thereafter until (i) Executive
shall have obtained subsequent employment or (ii) the expiration of
an additional period of three months from the date of such
termination, whichever time period is shorter.
(c) If Executive commits any act of criminal misconduct,
whether or not related to Executive's duties hereunder, or any
clearly dishonest, disloyal or criminal act toward the Company or
its Affiliates, the Employment Period and Executive's salary and
other rights under this Agreement or as an employee of the Company
shall terminate without severance pay or other obligation on the
part of Company upon written notice from the Company to Executive,
but such termination shall not affect the liability of Executive by
reason of his misconduct or dishonest, disloyal or criminal
conduct.
(d) Notwithstanding anything to the contrary contained
herein, the Employment Period and the Executive's salary and other
rights under this Agreement or as an employee of the Company shall
not be deemed to have been terminated pursuant to either Section
8(b) or (c) unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative
vote of not less than two-thirds of the Pre-change Directors of the
Board at a meeting of the Board called and held for the purpose
(after reasonable notice to the Executive and an opportunity for
the Executive, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct set forth above in Section 8(b) or
(c).
(e) Nothing herein shall be construed to reduce or abrogate
any rights Executive may have pursuant to the Consolidated Omnibus
Budget Reduction Act of 1985.
9. Termination by Executive.
(a) The Employment Period may be terminated by Executive, if
the Company fails to perform its duties hereunder or fails to
comply with any of the provisions hereof, thirty (30) days after
giving written notice to Company stating the nature of such non-
performance or non-compliance, unless Company shall have remedied
such non-performance or non-compliance with such thirty (30) days
notice period.
(b) The Executive shall be entitled to terminate his
employment hereunder at any time that (A) a change in control of
the Company (as defined below) has occurred and (B) there has
occurred, without the express written consent of the Executive:
(i) a substantial alteration in the nature or status of
the title, position, duties or responsibilities of Executive
from those in effect immediately prior to the change in
control of the Company;
(ii) a reduction by the Company in the Executive's salary
as in effect on the date hereof or as the same may be in-
creased from time to time;
(iii) the relocation of the Company's principal executive
offices to a location outside the Dallas Metropolitan Area or
the Company's requiring the Executive to be based anywhere
other than the Company's principal executive offices except
for required travel on the Company's business to an extent
substantially consistent with the Executive's business travel
obligations prior to the change in control of the Company;
(iv) the failure by the Company to continue in effect
any compensation plan in which the Executive was participating
immediately prior to the change in control, or the failure by
the Company to continue the Executive's participation therein;
(v) the failure by the Company to continue to provide
the Executive with benefits substantially similar to those
enjoyed by the Executive under any of the Company's employee
stock ownership, life insurance, medical, health-and-accident,
or disability plans, as well as vacation, travel and club
privileges in which the Executive was participating at the
time of a change in control of the Company or the taking of
any action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the Execu-
tive of any material fringe benefits enjoyed by the Executive
immediately before the time of the change in control of the
Company; or
(vi) any purported termination of the Executive's
employment which is not effected in accordance with the
requirements of Section 8 and, for purposes of this Agreement,
no such purported termination shall be effective.
(c) Upon termination of the Employment Period pursuant to
Section 9(a) or 9(b), the Company shall pay to Executive in one
lump sum on the fifth (5th) day following such termination, cash in
an amount equal to the lesser of (i) the total compensation
provided for under this Agreement for the balance of the then
effective Employment Period and (ii) the amount that is one dollar
($1.00) less than the amount which would be deemed a "parachute
payment" to Executive under the Internal Revenue Code of 1986, as
amended, to be paid in consideration of Executive's election to
terminate his employment with the Company and to release in full
all rights as an employee of the Company.
(d) Upon the occurrence of any change in control of the
Company, all options awarded to Executive under the Company's Long-
Term Stock Investment Plan which are not then vested shall become
fully vested.
(e) For purposes of this Agreement, a "change in control of
the Company" shall mean a change in control of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), whether or not the Company
is then subject to such reporting requirement, or any other actual
change in the control of the Company (whether by merger, consolida-
tion, acquisition of assets or stock or otherwise); provided that,
without limitation, such a change in control shall be deemed to
have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) other than a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), of the
Company's common stock as of the date of this Agreement, becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing more than forty-five percent (45%) of the combined
voting power of the Company's then outstanding securities entitled
to vote in the election of directors, (ii) a change occurs in
ownership of more than forty-five percent (45%) in book value of
the Company's assets, or (iii) during any period of two (2)
consecutive years, individuals who at the beginning of such two
year period constituted the Board of Directors of the Company,
including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still
in office who were directors at the beginning of the period
(collectively, "Pre-Change Directors"), cease for any reason to
constitute a majority of the Company's Board of Directors.
10. Intellectual Property Rights.
(a) Executive hereby assigns, transfers, and conveys his
entire right, title, and interest in any and all Intellectual
Property which he makes or conceives, whether as a sole inventor or
originator or as a joint inventor or originator with others,
whether made within or out of usual working hours or upon the
premises or elsewhere, during the Employment Period. Executive
understands that "Intellectual Property" as used herein includes
information of a technical or a business nature such as ideas,
discoveries, designs, inventions, improvements, trade secrets,
know-how, manufacturing processes, product formulae, design
specifications, writings and other works of authorship, computer
programs, financial figures, marketing plans, customer lists and
data, business plans or methods and the like, which relate in any
manner to the actual or anticipated business or the actual or
anticipated areas of research and development of the Company, or
its divisions, subsidiaries, Affiliates, or related entities.
(b) Either during or subsequent to Executive's employment,
upon the request and at the expense of the Company, and for no
remuneration in addition to that due Executive pursuant to this
Agreement, but at no expense to him, Executive agrees to execute,
acknowledge, and deliver to the Company, its nominee, or its
attorneys any and all instruments which in the judgment of the
Company, its nominee, or its attorneys may be necessary or
desirable to secure or maintain for the benefit of the Company or
its nominee adequate patent, copyright, and other property rights
in the United States and foreign countries with respect to any
Intellectual Property embraced within this Agreement, including but
not limited to: (1) domestic and foreign patents and copyright
applications, (2) any other applications for securing, protecting,
or registering any property rights embraced within this Agreement,
and (3) powers of attorney, assignments, oaths, affirmations,
supplemental oaths and sworn statements; and further agrees to
assist the Company, its nominee, or its attorneys as required to
draft said instruments, to obtain said rights, and to enforce said
rights.
(c) Executive further agrees to disclose to the Company
promptly in writing any and all ideas, designs, inventions,
improvements, and developments, when conceived or made in whole or
in part, by him and to maintain adequate and current records
thereof.
(d) Any ideas, designs, inventions, improvements, dis-
coveries, and developments disclosed by Executive within one year
following termination of his employment shall be deemed to have
been assigned, transferred, and conveyed under the terms of
paragraphs (a) and (b), unless proved to have been conceived after
termination.
11. Covenant Not to Disclose. Executive covenants and agrees
that he will not, at any time during or after the termination of
his employment by the Company, communicate or disclose to any
person, or use for his own account, or advise, discuss with, or in
any way assist any other person or firm in obtaining or learning
about, without the prior written consent of the Company, informa-
tion concerning any inventions, processes, programs, systems, flow
charts or equipment used in, or any secret or confidential or
proprietary information, trade secrets or know-how (including,
without limitation, any customer lists, trade secrets or informa-
tion concerning any work done by the Company for its customers or
done in an effort to solicit or obtain customers) concerning, the
products, services, business or affairs of the Company or any of
its Affiliates which is not generally available to the public and
which has become known to Executive at any time he has been
employed by the Company. Executive further covenants and agrees
that he shall retain all such knowledge and information concerning
the foregoing in trust for the sole benefit of the Company and its
Affiliates and their respective successors and assigns. Upon
termination of his employment with Company, all documents, records,
notebooks, and similar repositories of or containing secret or
confidential or proprietary information, including copies thereof,
then in Executive's possession, whether prepared by him or others,
will be left with Company.
12. Protection of Company Goodwill and Proprietary Informa-
tion
(a) The following provisions of this Agreement contain
substantial restrictions on Executive's post-employment activities.
As evidenced by his initials affixed to this and subsequent pages,
Executive acknowledges that he has read and understands such
provisions.
(b) Executive recognizes and acknowledges that the lists of
the Company's customers, as well as information pertaining to
customer personnel, product preferences and buying habits as such
lists or information may exist, whether same are ever actually
committed to writing or otherwise compiled in one or more docu-
ments, or are merely memorized by Executive, are also valuable,
special and unique assets of the Company's business. Executive
will not, during or after the term of this Agreement, disclose,
directly or indirectly any of said customer lists or information of
or pertaining to customers or any part thereof, to any person,
firm, corporation, association or other entity for any reason or
purpose whatsoever.
(c) Further, Executive agrees:
(i) that Executive shall not, during the one (1) year
period immediately following the date upon which his employ-
ment by Company is terminated, directly or indirectly, for
himself or for any other person, firm, corporation, associa-
tion or other entity, as an owner, independent contractor,
principal, agent, officer, director, partner, stockholder,
employee, consultant or otherwise, within any state of the
United States of America or any foreign country in which the
Company has sold goods or services within one (1) year prior
to such termination, sell, solicit or accept orders, or assist
or aid in the selling or solicitation or acceptance of orders
for products similar to or which can be used in substitution
for or replacement of the Company's to any party with whom
Executive had contact while in the employ of Company and (A)
who is or has been a customer or client of the Company at the
date of such termination or within a period of one (1) year
prior thereto, or (B) who has been identified as a potential
customer or client of the Company as of the date of such
termination;
(ii) that Executive shall not during the one (1) year
period immediately following the date upon which his employ-
ment or engagement by Company is terminated, directly or
indirectly, for himself or for any other person, firm,
corporation, association or other entity as owner, independent
contractor, principal, agent, officer, director, partner,
stockholder, employee, consultant or otherwise, within any
state of the United States of America or any foreign country
in which the Company has purchased or obtained goods or
services within one (1) year prior to such termination, employ
or attempt to employ, or engage or attempt to engage, or
solicit or encourage to leave the employment of Company or
otherwise cease, curtail or modify his relationship with
Company, any employee, salesman, independent contractor or
agent employed or engaged by Company as of the date of
Executive's termination, unless such person's employment or
engagement with Company shall have been terminated by Company
prior thereto or Company shall have consented to such employ-
ment, engagement, solicitation or encouragement in writing.
(d) While the restrictions set forth in this Section 12 are
considered by the parties to be reasonable in all circumstances, it
is agreed that if any of such restrictions shall be adjudged to be
void or ineffective for whatever reason, but would be adjudged to
be valid and effective if part of the wording thereof were deleted
or the periods thereof reduced, the said restrictions shall apply
with such modifications as may be necessary to make the same valid
and effective.
13. Essential Nature of Covenants. The existence of any
claim or cause of action of Executive against the Company or any of
its Affiliates, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of
the covenants contained in Sections 10, 11 and 12 hereof.
Executive understands that the covenants contained in Sections 10,
11 and 12 are essential elements of the transactions contemplated
by this Agreement and, but for the agreement of Executive to
Sections 10, 11 and 12, the Company would not have agreed to enter
into such transactions. Executive has had the opportunity to
consult with counsel and to be advised in all respects concerning
the reasonableness and propriety of Sections 10, 11 and 12 with
specific regard to the nature of the business conducted by the
Company, and Executive acknowledges that Sections 10, 11 and 12 are
reasonable in all respects.
14. Remedies. Notwithstanding Section 15 of this Agreement,
in the event of a breach or threatened breach by Executive of
Sections 10, 11 or 12, the Company shall be entitled to obtain from
any court having jurisdiction of the parties a temporary restrain-
ing order and an injunction restraining Executive from the
commission of such breach. Nothing contained in this Section 14
shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened
breach, including the recovery money damages.
15. Arbitration. Except as provided in Section 14 of this
Agreement, the Company and Executive agree to submit to binding
arbitration any controversy or claim arising out of or relating to
this Agreement or the breach thereof or any other matter relating
in any manner to the relationship between the Company and
Executive or the termination of such relationship or otherwise
arising from or relating to any practices or procedures of the
Company or conduct of the Company or its agents toward Executive,
including but not limited to tortious claims and statutory claims.
Such arbitration shall be conducted in the City of Dallas, Texas,
in accordance with the Model Employment Arbitration Procedures then
in effect or, if such have been repealed, the rules then obtaining
of the American Arbitration Association, and judgment upon the
award rendered may be entered in any court having jurisdiction
thereof.
16. Certain Arbitration Procedures.
(a) The parties shall cooperate to the fullest extent
practicable in the voluntary exchange of documents and information
to expedite any such arbitration. Any request for documents or
other information should be specific, relate to the matter in
controversy, and afford the party to whom the request is made a
reasonable period of time to respond without interfering with the
time set for the hearing.
(b) Document Production and Information Exchange.
(i) Any party may serve a written request for infor-
mation or documents ("information request") upon another party
twenty (20) business days or more after the non-complaining
party has received notice of the institution of arbitration
proceedings. The requesting party shall serve the information
request on all parties and file a copy with the arbitrator(s).
The parties shall endeavor to resolve disputes regarding an
information request prior to serving any objection to the
request. Such efforts shall be set forth in the objection.
(ii) Unless a greater time is allowed by the requesting
party, information requests shall be satisfied or objected to
within thirty (30) calendar days from the date of service.
Any objection to an information request shall be served by the
objecting party on all parties and filed with the
arbitrator(s).
(iii) Any response to objections to an information re-
quest shall be served on all parties and filed with the
arbitrator(s) within ten (10) calendar days of receipt of the
objection.
(iv) Upon the written request of a party whose infor-
mation request is unsatisfied, the matter will be referred by
the arbitrator(s) to either a pre-hearing conference under
subsection (d) of this section or to a selected arbitrator
under subsection (f) of this section.
(c) At least ten (10) calendar days prior to the first
scheduled hearing date, all parties shall serve on each other
copies of documents in their possession they intend to present at
the hearing and shall identify witnesses they intend to present at
the hearing. The arbitrators may exclude from the arbitration any
documents not exchanged or witnesses not identified. This
paragraph does not require service of copies of documents or
identification of witnesses which parties may use for cross-
examination or rebuttal.
(d)(i) Upon the written request of a party or an arbitrator,
a pre-hearing conference shall be scheduled. The arbitrator(s)
shall set the time and place of a pre-hearing conference and
appoint a person to preside. The pre-hearing conference may be
held by telephone conference call. The presiding person shall seek
to achieve agreement among the parties on any issue which relates
to the pre-hearing process or to the hearing, including but not
limited to exchange of information, exchange or production of
documents, identification of witnesses, identification and exchange
of hearing documents, stipulation of facts, identification and
briefing of contested issues, and any other matters which will
expedite the arbitration proceedings.
(ii) Any issues raised at the pre-hearing conference that are
not resolved may be referred to a single member of the arbitration
panel for decision.
(e) The arbitrator(s) shall apply such rules of procedure in
addition to the preceding rules as the arbitrator(s) think
appropriate under the circumstances, provided that both parties
shall be entitled to representation by counsel, to appear and
present written and oral evidence and argument, and to cross-
examine witnesses presented by the other party, and the
arbitrator(s) shall provide written reasons for the determination
rendered.
(f) The arbitrators (if more than one) may appoint a single
member of the arbitration panel to decide all unresolved issues
under this Section 16. Such arbitrator shall be authorized to act
on behalf of the panel to issue subpoenas, direct appearances of
witnesses and production of documents, set deadlines for compli-
ance, and issue any other ruling which will expedite the arbitra-
tion proceedings. Decisions under this section shall be made upon
the papers submitted by the parties, unless the arbitrator calls a
hearing. The arbitrator may elect to refer any issue under this
section to the full panel.
17. Waiver of Breach. The waiver by the either party of a
breach of any provision of this Agreement by the other party shall
not operate nor be construed as a waiver of any subsequent breach
by the other party.
18. Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their
respective successors, assigns, heirs and legal representatives.
19. Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect the construction
or interpretation of this Agreement.
20. Severability. Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibi-
tion or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
21. Governing Law. This Agreement shall be construed (both
as to validity and performance) and enforced in accordance with and
governed by the laws of the State of Texas.
22. Notice. All notices which are required or may be given
under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered in person or three (3) days
after being mailed by registered or certified first class mail,
postage prepaid, return receipt requested, at the address listed
above for such party, or to such other address as such party shall
have specified by notice to the other party hereto as provided in
this Section.
23. Entire Agreement. Except as specifically set forth
below, this Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with
respect to the subject matter hereof.
24. Amendment. This Agreement may not be changed orally, but
only in writing signed by the party against whom enforcement of any
waiver, change, modification, extension, or discharge is sought.
25. Limitations. No suit, action, arbitration or other
proceeding based upon or arising out of this Agreement shall be
maintainable in any court of law or equity or before any arbitra-
tor(s) or other adjudicator(s) unless the same be commenced within
two (2) years after the calendar date upon which the claim giving
rise to such suit, action, arbitration or other proceeding arose.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and date first above written.
OPTEK TECHNOLOGY, INC.
By:
Print Name:
Title:
XXXXXX XXXXXXX
