EXHIBIT 10.33
Execution Version
FOUNDER'S EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 29th day of December, 1994, between Wavelink
Technologies Inc., a body corporate duly incorporated under the laws of the
Province of Ontario and having an office at 0000 Xxxxxxx Xxxx in the City of
Mississauga, in the Province of Ontario (hereinafter referred to as "the
Company") and XXXX XXXXX currently residing in the City of Mississauga or a
surrounding community, in the Province of Ontario (hereinafter referred to as
"the Founder").
WHEREAS the undersigned Founder is one of the founders of the Company and the
Founder and the Company are desirous of entering into this Founder's Employment
Agreement ("Agreement") setting out the terms and conditions of the Founder's
employment with the Company; and
NOW THEREFORE in consideration of the mutual covenants and agreements
contained hereinafter, it is agreed as follows.
1. POSITION OF EMPLOYMENT. The Company and the Founder agree that,
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unless otherwise agreed in writing by the parties, during the term of this
Agreement the Founder will be employed by the Company as President and Chief
Executive Officer or a comparable position, with such duties as may be assigned
from time-to-time by the Board of Directors of the Company or the Company's
chief executive officer; provided however, the Founder shall not be assigned any
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duty or position that will necessitate a change in the location of his home
(presently in the Mississauga, Ontario area), unless the Founder consents in
writing to such assignment.
2. SALARY AND BENEFITS.
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2.01 During the term of the Founder's employment hereunder, the Company
shall pay or cause to be paid to the Founder for his services an annual base
salary of not less than $125,000 payable in equal semi-monthly instalments on
normal payroll dates. The Company and the Founder agree that the amount of the
Founder's salary shall be reviewed at least annually by the Board of Directors,
who may in its sole and complete discretion make appropriate increases thereto
after giving due consideration to the Founder's achievements during the past
year, having regard to the financial well-being of the Company and the market
rates of remuneration paid in Ontario for persons performing duties and
responsibilities similar to those being performed by the Founder. When any such
adjustment is made, the parties will execute a supplement to this Agreement.
2.02 In addition to the Founder's base salary as noted above, the Founder
will be entitled to participate in a bonus program upon terms and conditions
approved by the Company's Board of Directors, which will provide the Founder a
calendar year-end bonus opportunity of between 15% to 35% of base salary based
on the financial performance of the Company and individual performance.
2.03 During the term of the Founder's employment hereunder, the Founder will
be entitled to participate in the insurance and employee benefit plans and
programs maintained by the Company applicable to similarly situated employees on
the same basis as such other employees, subject only to the possible
substitution by or on behalf of the Company of other plans or programs providing
substantially similar or increased benefits for the Founder. Any substitution
by the Company of such employment benefits will in no way affect any of the
other terms and conditions of this Agreement and they will continue in full
force and effect.
2.04 The Founder will be entitled to reimbursement of any reasonable
expenses incurred by the Founder pursuant to or in the course of the Founder's
discharge of his employment duties hereunder in accordance with the policies
respecting business expenses established or to be established by the Company
from time-to-time.
2.05 During each calendar year of this Agreement, the Founder will be
entitled to 4 weeks vacation with pay or such greater reasonable vacation with
pay as may be specified in Company policies governing the matter that are
adopted from time-to-time.
3. GENERAL OBLIGATIONS OF THE FOUNDER TO THE COMPANY.
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The Founder shall serve the Company faithfully and to the best of the
Founder's ability. Throughout the term of the Founder's employment with the
Company, the Founder shall devote his full working time and attention to the
business and affairs of the Company.
4. TERM OF EMPLOYMENT AGREEMENT.
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4.01 Subject to the termination of the Founder's employment with the
Company as provided for under paragraphs 4.02, 4.05 and 4.06 hereof, the initial
term of the Founder's employment with the Company will be from the date hereof
to and including December 31, 1996. During the initial term, the Company shall
only be permitted to terminate the employment of the Founder in accordance with
sections 4.02, 4.05 or 4.06 or upon payment to the Founder of a lump sum
severance amount equal to the greater of:
(i) an amount equal to the Founder's base salary for six months; and
(ii) an amount equal to the Founder's base salary for the balance of
the initial term.
Unless either party provides the other party written notice that it is such
party's intent not to renew this Agreement more than 60 days prior to the
expiration of the then current term, the term of this Agreement shall
automatically renew for one additional year and so on from time-to-time. The
giving by either party of a notice of an intent not to renew in accordance with
this paragraph shall not, in and of itself, constitute a termination of the
Founder's employment with the Company.
4.02 The Founder may, by providing written notice of three months,
terminate the Founder's employment with the Company. Upon receipt of such
notice, the Company, in its sole
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discretion, may, by notice in writing, specify an earlier termination date. In
the event of such notice by the Company, the Company will pay the Founder all
amounts due and owing through the date of termination specified in the
Company's notice plus a lump sum allowance in an amount that when added to the
amounts to be received by the Founder through the date of termination specified
in the Company's notice is equivalent to three months' base salary.
4.03 If the Company terminates the Founder's employment with the
Company other than as permitted under paragraphs 4.02, 4.05, and 4.06 at any
time after the expiry of the initial term, then the Company shall pay to the
Founder, in a lump sum, as severance, an amount equal to the Founder's base
salary for six months.
4.04 The Founder acknowledges and agrees that payment by the Company
as provided in paragraphs 4.01, 4.02 and 4.03 shall be in full and final
settlement of any and all claims, demands, actions and suits whatsoever which
the Founder has or may have against the Company, Amtech Corporation, their
affiliates and any of their directors, officers, employees and their successors
and assigns. In the event that the government of Ontario, by legislation,
requires the payment of severance in an amount greater than set forth in
paragraphs 4.02 or 4.03, as applicable, the Founder shall be entitled to such
statutory severance in lieu of, but not in addition to, the severance set out in
paragraphs 4.02 or 4.03, as applicable.
4.05 Notwithstanding anything contained in this Agreement, the
employment of the Founder with the Company may be terminated for just cause
without notice of termination or payment in lieu of notice, and without
liability to the Company beyond any amounts due and owing to the date of
termination by the Company. For the purposes of the foregoing "just cause"
means:
(i) any theft, fraud or dishonesty by the Employee involving the
property or affairs of the Company; or
(ii) any act or omission by the Employee that is deemed to be just
cause for dismissal under the common law in the Province of Ontario.
4.06 The employment of the Founder with the Company shall terminate,
without liability to the Company beyond amounts due and owing through the date
of termination, upon the happening of any of the following:
(i) the death of the Founder;
(ii) the Founder reaching the retirement age as established by the
retirement policy of general application established or to be established
by the Company from time-to-time; or
(iii) the Founder is unable to perform the Founder's job
responsibilities because of incapacity due to physical or mental illness
for a consecutive period of six (6) months or a cumulative period of six
(6) months in any consecutive twelve (12) month period. The parties
understand that any wage replacement payments received by the
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Founder under any applicable disability insurance policies during the
period of disability shall be in lieu of (and not in addition to) a
corresponding amount of salary or other compensation.
5. CONFIDENTIALITY AND NON-COMPETITION.
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5.01 The Founder acknowledges that the Founder holds a position of
trust with the Company and that he has been and will be entrusted with detailed
trade secrets and other confidential or proprietary information of the Company.
The Founder acknowledges that the Founder has previously executed a Confidential
Information, Invention Assignment and Non-Competition Agreement, dated September
30, 1994, relating to the treatment of confidential information, inventions,
non-competition and other matters, which agreement is incorporated herein by
reference and is deemed to be a part of this Agreement as if the provisions
thereof were fully set forth herein. Such agreement will, subject to the
provisions of paragraph 5.02, continue to apply in accordance with its terms
during the Founder's employment with the Company and thereafter, regardless of
the reason for the termination or expiration of the Founder's employment.
5.02 Notwithstanding the provisions of paragraph 4 of the above-
referenced Confidential Information, Invention Assignment and Non-Competition
Agreement, the Founder and the Company have agreed, with respect to the
application of the provisions of such paragraph 4 during the period following
the termination or expiration of the Founder's employment with the Company, as
follows:
(i) the Founder shall be bound by the provisions of such paragraph 4
for a minimum period of six (6) months following the date of the
termination or expiration of the Founder's employment with the Company.
(ii) The Company may, at its election, require the Founder to be
bound by the provisions of such paragraph 4 for each of the seventh through
twelfth months following the date of the termination or expiration of the
Founder's employment with the Company by paying to the Founder for one or
more of these seventh through twelfth months the monthly base salary being
paid to the Founder at the time of the termination or expiration of the
Founder's employment with the Company. If the Company so elects by making
the required payment, then the Founder shall abide by the provisions of
such paragraph for each of such seventh through twelfth months that the
Company actually makes the payment in question.
6. MISCELLANEOUS.
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6.01 Except as otherwise expressly provided herein, all notices shall
be in writing and either delivered personally, or sent by registered or
certified mail, telex, telegram, cable or telecopier (receipt confirmation
requested) and addressed as follows:
The Founder: 0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
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The Company: Wavelink Technologies, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx
X0X 0X0
Attention: Xxxx Xxxxx
copy to: Amtech Corporation
00000 Xxxxxxx Xxxx, X-000
Xxxxxx, Xxxxx 00000
Attn: General Counsel
Any address may be changed by notice given in accordance with the provisions of
this paragraph. Any notice which is delivered personally shall be effective
when delivered and any notice which is sent by telex, telecopier, cable or
telegram shall be effective on the business day following the day of sending.
Any notice given by telex, telecopier, cable or telegram shall immediately be
confirmed by registered or certified mail.
6.02 This Agreement and the Confidential Information, Invention
Assignment and Non-Competition Agreement referenced in paragraph 5 contains the
entire agreement between the Company and the Founder and supersedes all previous
negotiations, understandings and agreements whether verbal or written, with
respect to the terms and conditions of employment between the Company and the
Founder. The parties agree that this Agreement may only be modified in writing
and signed by both parties.
6.03 This Agreement shall be governed by and interpreted in
accordance with the laws of the Province of Ontario. The Company and the
Founder agree that if there is any dispute between them with respect to the
rights of either party under this Agreement, such dispute will be submitted to
the Courts of the Province of Ontario, and the Company and the Founder attorn to
the jurisdiction of the Courts of the Province of Ontario.
6.04 This Agreement shall not be assignable by either party unless
the written consent of the other party has been obtained, provided, however,
that the Company may assign this Agreement to any person or entity acquiring all
or substantially all of the undertaking, property or assets of the Company
whether by way of merger, amalgamation, transfer, sale, lease or other
transaction and may assign it to any affiliate of the Company; provided, that,
an assignment to an affiliate shall not relieve the Company of its obligations
hereunder. As used herein, "affiliate" means with respect to any corporation or
other entity, a corporation or other entity directly or indirectly controlling,
controlled by, or under direct or indirect common control with, the corporation
or other entity in question.
6.05 This Agreement shall enure to the benefit and be binding upon the
parties hereto, their respective heirs, executors, administrators, successors
and permitted assigns.
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6.06 The Company and Founder agree that they shall, from time-to-time
and at all times, do all such further acts and execute and deliver all such
further documents and assurances as shall be reasonably required in order to
fully perform and carry out the terms of this Agreement.
6.07 No failure by either the Company or the Founder to exercise any
of their respective rights, powers or privileges pursuant to this Agreement
shall operate as a waiver of such rights, powers or privileges, nor shall any
single or partial exercise of any right, power or privilege under this Agreement
by either of them, preclude either of them from further exercising any right,
power or privilege pursuant to this Agreement.
6.08 In the event that any provision or any part of any provision
hereof is deemed to be invalid by reason of the operation of any law or by
reason of the interpretation placed thereon by a court, this Agreement shall be
construed as not containing such provision or part of such provision and the
invalidity of such provision or such part shall not affect the validity of any
other provision or the remainder of such provision hereof. All other provisions
hereof which are otherwise lawful and valid shall remain in full force and
effect.
6.09 The Founder understands that by executing this Agreement, the
Founder accepts and agrees to be bound by its terms and conditions. The
Founder acknowledges that the Founder is signing this Agreement freely and
voluntarily having had an opportunity to review, understand and seek advice as
to the meaning of the above provisions.
IN WITNESS WHEREOF the parties have caused this Agreement to be
executed as of the effective date first above written.
WAVELINK TECHNOLOGIES, INC.
By: Xxx Xxxxxx
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Its: SECRETARY
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/s/ S. SLIEDBOLT /s/ XXXX XXXXX
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(Witness) XXXX XXXXX
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