EXHIBIT 10(B)
AGREEMENT
XXXXXXXXXX ELECTRONICS, LTD., whose principal office is located at
00X000 Xxxxxxxxx Xxxx, XxXxx, Xxxxxxxx 00000 (the "Company"), and XXXXXX
X. XXXXX of 38 W 000 Xxxxxxx Xxxx, Xx Xxxxxxx XX 00000 (the "Employee").
WHEREAS, the Employee has been an executive officer of the Company for
many years and the parties agree that Employee's employment with the Company
as an executive officer, particularly as Executive Vice President, is to be
terminated and the Employee will be continue to be employed as a non-officer
employee of the Company for the period of time herein specified and that the
payments provided herein shall be in lieu of any payments under any Company
policy relating to termination of Employee's employment as an executive
officer and eventually as an employee at the expiration of employment term
provided herein and to resolve and settle all possible claims the Employee
may have against or with respect to the Company;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. The Company and the Employee agree that the Employee's employment
with the Company as an executive officer and any other officer position with
the Company will cease and terminate on the close of business on February 28,
1997 (the "Termination Date") and Employee hereby resigns as a member of the
Board of Directors and any committee thereof effective as of the Termination
Date.
2. Employee shall be entitled to payment of his compensation and
benefits, including bonus, as presently being paid through the Termination
Date.
3. In consideration of Employee's service with the Company as an
executive officer and his other promises and agreements made in this
Agreement and in full settlement of any and all claims that the Employee
may have against the Company, its successors, assigns, affiliates, or any
of its officers, directors, shareholders, employees, agents or
representatives, for compensation or otherwise in connection with his
past employment or termination of his employment as an officer of the
Company, the Company agrees to provide the Employee with the following
in addition to the compensation referred to in paragraph 2. above:
(a) Compensation of NINE THOUSAND FOUR HUNDRED AND NO/100THS Dollars
($9,400.00) per month, payable beginning on the 30th day after the
Termination Date and continuing on the same date of each month
thereafter for an additional 59 months, provided, however, that
the Employee's right to receive and the Company's obligation to
make such payment shall cease in the event of Employee's breach of
paragraphs 5, 8, 9 or 10 below;
(b) As of the Termination Date, forgive the then outstanding balance
and interest, if any, on the personal loan made to Employee by the
Company in connection with the auto previously belonging to the
Company and used by Employee, title to which was transferred to
him in December, 1996, which now has a principal balance of $2,000
and against which Employee agrees he will pay $1,000 in each of
January and February 1997 by applying the $1,000 monthly car
allowance to which he is entitled for those months;
(c) Without charge, transfer to Employee ownership and title to the
laptop personal computer belonging to the Company and now being
used by the Employee, and, until the Company's obligation to make
payments to Employee under subparagraph 4(a) cease, the right to
continue to use (subject to the other provisions of this
Agreement, including, without limitation, paragraphs 5, 8, 9, 10
and 11) software now installed on such computer, if any, belonging
to the Company and now being used by the Employee and his now
existing modem/network e-mail connection for connection to those
outside the Company, provided, that, the Company may modify or
terminate such connection service or software if the same is
modified or terminated for its other employees generally now
utilizing the same; and
(d) Indemnification, including for related legal costs, as provided
under the Company's by-laws for all action of Employee in any
capacity during the course of his employment with the Company.
4. The parties agree that after the Termination Date, Employee will
continue to be employed with the Company as a non-officer to work on such
matters as may be directly requested by, and under the direct supervision of,
Xxxxxx X. Xxxxxxxxxx through the period from the Termination Date until
February 28, 2002. Such requested work shall take into consideration the
Employee's health, residence, and personal circumstances, including, without
limitation, other employment in which he may be engaged. Employee's
employment under this paragraph and his right to receive compensation as
provided for in this paragraph 4 may not be terminated for reasons of the
quality of his work. Employee shall not be required to report to any
office to perform his work unless specifically requested by Xxxxxx X.
Xxxxxxxxxx and, except by mutual agreement, shall not be required to
perform such work at a location that is beyond 80 miles of his then
residence. Employee's unavailability for work as provided in this
paragraph 2 due to health reasons shall not terminate the Company's
obligation to make the payments provided for in subparagraph 2(a)
below, but, in such event the Company may reduce the amount paid by any
disability or other insurance payments to which the Employee is entitled or
receives. In consideration for the promises made by the Employee in this
paragraph 4 and subsequent paragraphs, the Company agrees to provide the
Employee with the following in addition to the compensation referred to in
paragraphs 2 and 3 above:
(a) Compensation at the rate of TWO THOUSAND SIX HUNDRED AND NO/100THS
Dollars ($2,600.00) per month beginning on the day following the
Termination Date and continuing through February 28, 2002, or such
earlier date as the obligation to make such payment shall cease,
payable in such installments as the regular pay periods of the
Company during such period, provided, however, that the Employee's
right to receive and the Company's obligation to make such payment
shall cease in the event of Employee's breach of paragraphs 5, 8,
9 or 10 below. Employee acknowledges and agrees that such
aggregate amount as the Company is obligated to pay under this
subparagraph (a) shall be full compensation for all services
rendered to Company after the Termination Date through February
28, 2002 and shall be in lieu of any payments under any Company
policy relating to termination of Employee's employment at the
expiration of the employment term provided in this paragraph 4;
(b) During the employment period provided in this paragraph 4,
Employee shall be entitled to participate in the medical, dental,
disability and life insurance and other benefits (notwithstanding
the foregoing Employee shall not be entitled to participate in any
bonus or incentive compensation plan) on the same or similar terms
as such benefits are provided to Company's other regular employees
during such period; provided, however, that such benefits shall
cease to be made available to Employee if the Company's obligation
to make payment under subparagraph (a) has ceased prior to
February 28, 2002; and, further, if, at any time, Employee becomes
engaged in employment with any entity or person that offers such
types of benefits and Employee is entitled to participate therein,
then Employee shall elect to participate in such benefits of the
other employer and does hereby elect to terminate and cease to
participate in the Company's benefits of such type as are
available to him through his other employment;
(c) Options previously granted to Employee under the Company's various
stock option or incentive compensation plans shall continue to be
exercisable or become exercisable in accordance with the terms
thereof through termination of Employee's employment under this
paragraph 4; and
(d) Indemnification, including for related legal costs, as provided
under the Company's by-laws for all action of Employee in any
capacity during the course of his employment with the Company
after the Termination Date.
5. The payments provided for in subparagraphs 4(a) above shall be
payable if and when but not unless, the Employee shall without additional
compensation, fee, or other payment by the Company;
(a) Refrain (independently of and without reference to paragraph 10
hereof), after the expiration of a period of thirty (30) days from the
mailing to him of written notice by the Secretary of the Company of a
direction to do so, from engaging in the operation or management of a
business, whether as owner, shareholder, partner, officer, employee or
otherwise, which then shall be one in which the Employee could not
engage without being in violation of his obligations not to compete as
provided in paragraph 10 hereof;
(b) Refrain (independently of and without reference to paragraph 9
hereof) from disclosing to unauthorized persons information relative to
the business, properties, products, technology or other assets of the
Company or any of its subsidiaries which he shall have reason to believe
is confidential; and
(c) Refrain (independently of and without reference to paragraph 8
hereof) from otherwise acting or conducting himself in a manner which he
shall have reason to believe is inimical or contrary to the best
interests of the Company.
In the event that the Employee shall fail to comply with any provision of
this paragraph 5, the Company's obligation to make any further payment
provided for in subparagraph 4(a) above shall forthwith terminate and cease.
6. The consideration from the Company set forth in 4 above constitutes
full settlement of any and all claims that the Employee may have against the
Company, its successors, assigns, affiliates, or any of its officers,
directors, shareholders, employees, agents or representatives, for
compensation or otherwise in connection with termination of his employment
after the Termination Date, except for any and all claims arising out of
the performance by the Company of this Agreement, including, but not
limited to, rights under the Company's profit sharing and employee stock
ownership plans.
7. In further consideration for the promises made by the Company
herein, the Employee, on behalf of himself, his agents, assignees, attorneys,
heirs, executors, and administrators, fully releases the Company, and its
successors, assigns, parents, subsidiaries, divisions, affiliates, officers,
directors, shareholders, employees, agents and representatives, from any and
all liability, claims, demands, actions, causes of action, suits, grievances,
debts, sums of money, controversies, agreements, promises, damages, back and
front pay, costs, expenses, attorneys' fees, and remedies of any type, by
reason of any matter, act or omission arising out of or in connection with
the Employee's employment with or termination by the Company, including but
not limited to claims, demands or actions under Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the Americans
With Disabilities Act, the Civil Rights Act of 1986, the Illinois Human
Rights Act, any other federal, state or local statute or regulation
regarding employment, discrimination in employment, or the termination of
employment, and the common law of any state relating to employment
contracts, public policy torts, wrongful discharge, or any other matter,
including, without limitation, claims, demands or actions under the False
Claims Act or any qui tam rights, except, however, any and all claims
arising out of the performance by the Company of this Agreement (the
"Released Claims").
8. Employee agrees that he will at no time engage in conduct which
injures, xxxxx, destroys, corrupts, demeans, defames, libels, slanders,
destroys or diminishes in any way the reputation or goodwill of the Company,
its subsidiaries, or their respective shareholders, directors, officers,
employees, or agents or the products sold by the Company, or its other
properties or assets. Nor will Employee cause any computer bugs to the
Company's computer system, database or software.
9. The Employee shall not (except in the proper course of his duties
to the Company) either during the period of his employment with the Company
or thereafter make use of, disseminate or divulge to any person, firm,
company, association or other entity, and shall use his best endeavors to
prevent the use, dissemination, publication or disclosure of, any
information, knowledge or data disclosed to Employee or known by Employee
as a consequence of or through his employment or relationship with the
Company or any of its predecessors or subsidiaries (including information,
knowledge or data conceived, originated, discovered or developed by
Employee) not generally known in the business of manufacturing or
distributing electron tubes, closed circuit television products,
semiconductors, or data display products, whether patentable or not,
about the Company's or its predecessors' or subsidiaries'
businesses, products, processes and services, including without limitation
information relating to manufacturing matters, purchasing, sales, research,
development, methods, policies, procedures, technology, techniques,
processes, know-how, designs, drawings, specifications, systems, practices,
merchandising, suppliers or customers, including, without limitation,
customer lists, information or data. It is not intended to limit or
restrict Employee's right to utilize information, ideas, concepts or
structures of a general nature so long as they are not used in a business
competitive with that of the Company. The failure to xxxx any of the
information confidential or proprietary shall not affect its status as
such under this Agreement.
10. It is agreed that:
(a) Independent of any obligation under any other paragraph or
subparagraph hereof or any other agreement, Employee agrees that
during the term of his employment, including, without limitation,
the period through February 28, 2002, he will not, except with the
approval of the Chairman of the Board or President of the Company,
directly or indirectly (whether or not for compensation or profit)
through any other individual or entity whether as an officer,
director, shareholder, creditor, partner, promoter, proprietor,
associate, employee, owner, agent, representative or otherwise,
become or be interested in, or associated with, any individual or
entity, other than the Company, engaged in any business or
enterprise the nature of which is competitive with that of the
Company in the sale of electron tubes, CRTs, closed circuit
television products, discrete RF semiconductors or DC power
semiconductors in the territories served by the Company, provided,
however, that, anything above to the contrary notwithstanding,
Employee may, after the date of this Agreement, own as an inactive
investor, securities of any corporation engaged in any prohibited
business as described above which is publicly traded on a national
securities exchange, so long as the holdings of the Employee,
directly or indirectly, in the aggregate, constitute less than 1%
of the outstanding voting securities of such corporation.
(b) Independent of any obligation under any other paragraph or
subparagraph hereof or any other agreement, Employee agrees that
during the term of his employment, including, without limitation,
the period through February 28, 2002, he will not, except with the
approval of the Chairman of the Board or President of the Company,
directly or indirectly (whether or not for compensation or profit)
through any other individual or entity call upon, solicit, entice,
persuade or induce any individual or entity which during
Employee's term of employment with the Company was a customer or
supplier, or proposed customer or supplier, of the Company upon
whom Employee called or dealt with or whose account he supervised
on behalf of the Company, to purchase (with respect to customers)
or sell (with respect to suppliers) electron tubes, CRTs, closed
circuit television products, discrete RF semiconductors or DC
power semiconductors of the types or kind sold or purchased by the
Company or which could be substituted for or which serve the same
purpose or function as such products sold or purchased by the
Company during Employee's employment, or request or advise any
such customer or supplier to withdraw, curtail or cancel its
business with the Company, and Employee shall not approach,
respond to, or otherwise deal with any such customer or supplier
for any such purpose or authorize or knowingly cooperate with the
taking of any such actions by any other individual or entity.
(c) Independent of any obligation under any other paragraph or
subparagraph hereof or any other agreement, Employee agrees that
during the term of his employment, including, without limitation,
the period through February 28, 2002, he will not, except with the
approval of the Chairman of the Board or President of the Company,
directly or indirectly (whether or not for compensation or profit)
through any other individual or entity call upon, solicit, entice,
persuade, induce or offer any individual which during Employee's
term of employment with the Company was an employee of the
Company, employment or with respect to employment by any one other
than the Company, or request or advise any such employee to cease
employment with the Company, and Employee shall not approach,
respond to, or otherwise deal with any such employee for any such
purpose, or authorize or knowingly cooperate with the taking of
any such actions by any other individual or entity.
11. All notes, data, reference materials, memoranda, files and records,
including without limitation computer reports, products lists and information,
process manuals and notes, drawings, and technology manuals and notes,
customer or supplier lists, data or information, in any way relating to
any of the Company's or its predecessors' or subsidiaries' businesses,
operations or products shall belong exclusively to Company, and Employee
agrees to turn over to Company all copies of such materials and all keys,
equipment and other Company property in his possession or control at the
request of Company or, in the absence of such a request, upon the
termination of Employee's employment with Company. Upon the Termination
Date, Employee shall immediately refrain from seeking access to or
utilization of Company's (a) telephonic voice mail, E-mail or message
system, (b) computerized order entry system, and (c) computer data bases
and software, except to use the modem/network e-mail connection to
those outside the Company as provided for in subparagraph 3(c) above or as
specifically authorized by the Chairman of the Board of the Company.
12. In the event of a breach or threatened breach by the Employee of
the provisions of paragraphs 8, 9, or 10, the Company shall be entitled to an
injunction restraining the Employee from such breach. Nothing herein shall
be construed as prohibiting the Company from pursuing any other remedies
available to the Company for such breach or threatened breach. The parties
hereto desire that paragraphs 8, 9, and 10 shall be fully enforceable in
accordance with the terms thereof but if any portion is held unenforceable
or void or against public policy by any court of competent jurisdiction,
the remainder shall continue to be fully enforceable in accordance with its
terms or as it may be modified by such court. The period of restriction
specified in paragraphs 8, 9, or 10 shall xxxxx during the time of any
violation thereof and the remaining portion at the commencement of the
violation shall not begin to run until the violation is cured.
13. Employee's death shall not terminate the Company's obligation to
pay the amounts it would otherwise be obligated to pay Employee under
subparagraphs 3(a) or 4(a). In the event of Employee's death prior to
payment of all amounts due under subparagraphs 3(a) and 4(a), such amounts
thereafter shall be paid to Employee's estate or, if Employee has provided
Company with written direction prior to his death of an alternative
beneficiary, to the beneficiary so designated by Employee in such written
direction. Such payments shall be made on the dates and to the extent
subparagraphs 3(a) or 4(a), as the case may be, would require them to be
made to Employee if he were still alive. In the event the Company, at its
expense, purchases reducing term life insurance for the Employee that would
cover the amount of its obligation to continue payments in the event of
Employee's death as provided above in this paragraph, then the Company
shall not be obligated to continue payments in the event of Employee's
death and all payments hereunder would cease upon Employee's death.
14. The Employee understands and agrees that the existence and terms
of this Agreement are confidential and shall not be disclosed to any third
party without the prior written consent of the Company, except as may be
required by law and in response to a lawful subpoena in which event Employee
shall provide prompt notice to the Company.
15. The existence and execution of this Agreement shall not be
considered, and shall not be admissible in any proceeding, as an admission by
the Employee or the Company, or any of its agents or employees, of any
liability, error, violation or omission.
16. It is agreed that:
(a) This Agreement shall be binding upon the parties hereto, their
heirs, legal representatives, successors and assigns and shall
inure to their respective benefits.
(b) This Agreement shall not be subject to change, modification, or
discharge, in whole or in part, except by written instrument
signed by the parties; provided, however, that if any of the
terms, provisions or restrictions of paragraph 8, 9, or 10 are
held to be in any respect unreasonable restrictions upon Employee,
then the court so holding shall reduce the territory to which it
pertains and/or the period of time in which it operates or effect
any other change to the extent necessary to render any of said
terms, provisions or restrictions enforceable.
(c) The failure by the Company to insist upon strict compliance by the
Employee with respect to any of the terms or conditions hereof
shall not be deemed a waiver or relinquishment of any other terms
or conditions nor shall any failure to exercise any right or power
hereunder at one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
(d) This Agreement shall be governed and construed in accordance with
the laws of the State of Illinois.
(e) All notices required to be given hereunder to the Company shall be
addressed to its principal executive office at 00X000 Xxxxxxxxx
Xxxx, XxXxx, Xxxxxxxx 00000; attention: Xxxxxxx X. Xxxxx, by
certified or registered mail. All notices required or to be given
hereunder to the Employee shall be addressed to the Employee at
his residence as last reflected on the records of the Company, by
certified or registered mail. Notice shall be deemed given if
delivered in person to Xxxxxxx X. Xxxxx on behalf of the Company
or to the Employee, or if mailed, when deposited in the United
States Mail addressed as aforesaid.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and year written below their respective signatures.
EMPLOYEE XXXXXXXXXX ELECTRONICS, LTD.
By:
Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxxxx,
Chairman of the Board
Dated: 1/16/97 Dated: 1/16/97
Subscribed and sworn to
before me this 16th day
of January, 1997
____________________________
Notary Public
