EXHIBIT 10.20
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EMPLOYMENT AGREEMENT
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I. PARTIES
This Employment Agreement ("Agreement") entered into as of June 18, 1999 by
and between Xxxxx Corporation, 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000-
1552 ("ORTEL") and Xxxxxxx X. Xxxxxxx residing at 0000 Xxxxxxx Xxxx, Xxxxxx xxx
Xxx, XX 00000 ("Executive").
II.RECITALS
1. ORTEL desires to retain the services of Executive and Executive desires
to provide such services as provided herein.
III. TERMS
1. Effective Date: This Employment Agreement shall become effective on
June 18, 1999.
2. Positions: Executive shall be employed by ORTEL as Chairman of the
Board of Directors, President and Chief Executive Officer.
3. Employment Duties: As Chairman of the Board of Directors, President
and Chief Executive Officer, Executive will have total overall responsibility
for all business activities of ORTEL. Including, without limitation, the
tactical operation and strategic direction of ORTEL. In conjunction with this
responsibility, all personnel will report either to the Executive or to persons
reporting to him. Executive will report only to the Board. Executive will be
allowed to vote on all matters before the Board concerning ORTEL, excluding only
matters directly and solely related to Executive's compensation and employment
and such other matters with respect to which Executive would be deemed to be an
"interested director" under the Delaware General Corporation Law.
Notwithstanding the foregoing the Chief Financial Officer shall also report to
the Board of Directors with respect to the books, records, financial condition
and financial report of the Company.
4. Term: The term of this Agreement is five (5) years, commencing June
18, 1999, and terminating June 18, 2004. Unless terminated by either Party as
provided hereinunder, this Agreement shall automatically be extended annually
for one additional year beginning June 18, 2004. However, either party may
terminate Executive's employment, with or without cause, upon giving at least
thirty (30) days prior written notice. Termination of Executive's employment by
ORTEL shall also require a majority vote of the Board.
5. Salary: Executive shall be paid $300,000.00 per year, paid according
to XXXXX'x standard payroll schedule. Usual and customary expenses will be
reimbursed to Executive by ORTEL according to its policy regarding business
expenses. The Board shall review Executive's salary, incentive compensation and
stock/stock option position annually, on June 18, of each year, with the next
review to be on or before June 18, 2000. ORTEL shall provide annual salary
increases, incentive compensation and stock/stock options consistent with the
custom and practice in the industry for equivalent-sized companies with
equivalent executive responsibilities, taking into account the performance of
ORTEL and Executive relative to the industry. No such annual review shall
reduce Executive's annual salary, incentive compensation, stock/stock options,
nor shall it terminate or modify any economic compensation, options, or other
rights or benefits granted herein.
6. Incentive Compensation Bonus: For the year 1999, in addition to
Executive's base salary, Executive shall have the opportunity to earn an
additional $185,000.00 based on mutually agreed upon Corporate objectives. In
the first year, $150,000 of the total bonus is guaranteed, the remaining $35,000
based on performance.
7. Stock Options: As an incentive to join ORTEL, Executive is hereby
granted the option to purchase 600,000 shares of ORTEL stock under the following
conditions:
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EXHIBIT 10.20
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a. The stock options provided for herein shall be subject to the
terms and conditions of that certain stock option agreement of even date
herewith a copy of which is attached hereto (the "Stock Option Agreement").
b. Options granted under this Agreement shall have a purchase price
equal to the fair market value of the stock as of the close of market on June
17, 1999, the day preceding the date of employment.
c. All options granted to Executive in this Agreement and all
subsequent Agreements will have a four (4) year vesting period; 12/48th will be
vested on the one (1) year anniversary of the award, and 1/48th will be vested
on the first day of each full month thereafter, so that all options shall be
vested on the first day of the 48th month after the date of this Agreement.
Vesting shall cease upon the termination of employment.
d. Executive may exercise vested stock options granted in this
Agreement and all subsequent Agreements, until the earliest of (a) ten years
from the date of the grant of such options, (b) two (2) years after Executive's
termination of employment other than by ORTEL for Cause and (c) Executive's
termination of employment by ORTEL for Cause. Notwithstanding the foregoing,
all vested stock options shall cease to be exercisable if Executive enters into
a Competing Relationship with the Company (as defined in the Stock Option
Agreement).
e. Except as otherwise provided, the stock options referred to herein
will be for class A common stock.
8. Signing Bonus: On or before July 7, 1999, ORTEL shall pay to Executive
a one-time signing bonus of $250,000. One twenty-fourth (1/24) of this bonus
will vest each month until fully vested on June 18, 2001. Should Executive
resign voluntarily or be terminated for Cause as defined in Section 11b,
Executive shall repay any unvested portion. In the event Executive's employment
is terminated for any other reason, the unvested portion of the sign on bonus
will vest and all terms of Sections 11 and 12 will apply.
9. Health Benefits: ORTEL will provide Executive with the same health,
disability and life insurance benefits as are made available to other Executives
of ORTEL.
10. Driver: ORTEL agrees to provide Executive with a driver and a Lincoln
Town Car or equivalent for transportation to and from his principal residence in
Corona del Mar, California and XXXXX'x offices and for other business purposes.
ORTEL acknowledges that Executive has relinquished certain other consideration
in order to receive this benefit.
11. Rights on Termination of Employment
a. Executive shall have the rights and benefits described below
(hereinafter "Termination Benefits"), in the event Executive's employment is
terminated as follows:
(1) ORTEL terminates Executive's employment without Cause (as defined
below) at anytime;
(2) Executive terminates his employment for any of the following
reasons: (a) a change of job duties, title or responsibility from those
described in paragraph 3; (b) Executive is removed from, or not re-elected to
the Board of Directors, or is removed as Chairman of the Board of Directors; (c)
there is a change in the organizational structure of ORTEL, i.e., who Executive
reports to or who reports to him; (d) ORTEL for any reason decreases the salary,
benefits or compensation to Executive; (e) Executive is required to travel more
than fifty (50) miles from his principal residence to the principal offices of
ORTEL as a result of the relocation of the principal offices of ORTEL; or (f)
there is a Reorganization (as defined below); or
(3) Executive's death or disability; for the purposes of this Section
11(a)(3), Executive shall be deemed to be disabled if in the opinion of the
Board of Directors, as confirmed by competent medical advice, Executive is
physically or mentally incapacitated to such a degree as to be unable to perform
his duties for an
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EXHIBIT 10.20
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extended period of time.
b. Executive shall not have Termination Benefits if he voluntarily
terminates his employment for any reason other than set forth above or if he is
terminated for Cause. Termination of Executive's employment shall be for
"Cause" in the event of the occurrence of any of the following: (a) any
intentional action or intentional failure to act by Executive which was
performed in bad faith and to the material detriment of the Company; (b)
Executive intentionally refuses or intentionally fails to act in accordance with
any lawful and proper direction or order of the Board; (c) Executive willfully
and habitually neglects the duties of employment; or (d) Executive is convicted
of a felony crime involving moral turpitude. All other terminations by ORTEL
shall be treated as not for Cause.
c. Executive's Termination Benefits are as follows:
(1) ORTEL shall continue to pay Executive his compensation for a
period of twenty-four (24) months from the date of termination of employment.
Compensation shall be defined as his then current base salary plus annual
incentive bonus. Annual incentive bonus shall be defined the average of the
prior two (2) years annual bonus actually awarded.
(2) ORTEL shall continue to pay and/or provide to Executive all
health, medical, disability, life insurance, and other benefits described in
paragraph 9, for a period of twenty-four (24) months from the date of
termination of employment.
(3) ORTEL shall pay to Executive for accrued but unused vacation time
vested as of the date of termination of his employment.
d. The parties acknowledge that any public discussion of the
circumstances pertaining to the parties' termination of their relationship would
be counterproductive to the interests of either party. The parties therefore
agree to refrain from making any negative, disparaging or defamatory remarks
about the other party, or to interfere with the other party's prospective
economic gain.
e. If Executive's employment is terminated other than as described in
Section 11(a)(1), (2) or (3), Executive shall receive all compensation and
benefits earned and accrued under this Agreement prior to such termination of
employment and shall have no further rights to any other compensation or
benefits hereunder on or after such termination of employment.
f. If Executive's employment is terminated as a result of death or
disability (as described in Section 11(a)(3)), ORTEL obligation's hereunder
shall be reduced by any amount of any benefit paid to Executive under any life
or disability insurance or other benefit plan of ORTEL relating to such death or
disability. If Executive's employment is terminated as a result of death, the
benefits of this Agreement shall inure to the estate of Executive.
x. XXXXX'x obligation to make any payments to Executive upon a
termination of employment shall be contingent upon Executive's execution of a
release of claims in a form reasonably acceptable to ORTEL.
12. ORTEL Reorganization:
a. For purposes of this Agreement, the term "Reorganization" means
any Change of Control (as defined in the Stock Option Agreement). A
Reorganization shall be deemed to have occurred on the date of such Change of
Control.
b. Upon Reorganization, all unvested stock options shall immediately
vest.
x. XXXXX agrees to gross-up Executive's compensation to compensate
Executive for any possible 280G tax consequences that may arise as a result of
any acceleration provided in subsection 12(b) or any
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other payment made by ORTEL in connection with a Reorganization. Such gross-up
payment will be made within fourteen (14) days of the earlier to occur of (i)
assessment or ruling by IRS or any other tax authority or (ii) payments of such
amounts by Executive in conjunction with the filing of the personal income
return for the year in which the payment was made or options accelerated. For
calculation purposes, all gross ups will take into account the combined tax
effect at the highest applicable federal, state and local tax. ORTEL agrees to
gross up such payments to Executive to result in a tax burden to Executive not
in excess of the highest marginal married combined federal and state tax rates.
ORTEL shall also be responsible for and gross up any excise or penalty taxes
applied by state or federal tax authorities by recommendation of such payments.
13. Proprietary Information:
a. Executive recognizes that his position with ORTEL requires
substantial trust and confidence because of his access to trade secrets and
other proprietary information of ORTEL (collectively "Proprietary Information").
At all times, during the term of this Agreement, and for a period of three (3)
years after the termination of this Agreement for any reason, Executive shall
use his best efforts and exercise utmost diligence to protect the unauthorized
disclosure of any Proprietary Information. Said Proprietary Information
includes but is not limited to XXXXX'x hardware, software, marketing,
manufacturing and design processes, and operating procedures. Executive will
not be required to incur personnel expense to protect the unauthorized
disclosure of any Propriety Information.
b. Except as may be required in the performance of his duties
hereinunder, Executive shall not use XXXXX'x Proprietary Information for his own
benefit, or disclose XXXXX'x Proprietary Information to another, without XXXXX'x
prior written consent.
c. The provisions of this Section 13 are in addition to those set
forth in ORTEL Employee Proprietary Information and Invention Agreement
previously executed by Executive.
14. Covenant Not To Compete: During the term of Executive's employment,
Executive shall not engage in any act in competition with the business or best
interests of ORTEL. During the term of this Agreement, Executive shall not be
an agent, employee, or consultant for any competitor of ORTEL. Following any
notification of termination, voluntarily or involuntarily, of his employment,
Executive may pursue and accept any employment or occupation whether or not it
competes with ORTEL.
a. Executive may, at his option, sit on non-competing Boards of
Directors, advisory groups and partnership and may derive compensation for these
services. Executive agrees to notify ORTEL of all such associations and
maintain a current status of these associations.
15. No Oral Modification: This Agreement is not subject to oral
modification in any fashion. The terms of this Agreement may be modified only
by an agreement in writing executed by the Parties hereto. No subsequent
attempt to an oral novation will be effective to modify or change this
agreement.
16. Notice: Any notice required by this Agreement shall be in writing and
shall be mailed or delivered to the other party at the addresses set forth
above. If said notice is mailed, it shall be deemed effective five (5) days
after the date of mailing.
17. Covenants Independent: The covenants set forth herein are independent
of one another, and a breach by one party of any promise or covenant set forth
herein, shall not terminate the Agreement or excuse performance by the other
party of his or its obligations set forth herein.
18. Entire Agreement: Except as provided herein, this Agreement
constitutes the entire agreement between the parties and supersedes all prior
written or oral agreements. There are no promises, warranties, or
representations other than as contained herein. This Agreement may be only be
modified by an Agreement in writing executed by the Parties hereto.
19. Governing Law: This agreement shall be governed by the laws of the
State of California. Any
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action or mediation dispute arising out of this Agreement shall be conducted in
Orange County, California.
20. Mediation: In the event of a dispute between the parties arising out
of this Agreement, the parties agree to submit the dispute to mediation prior to
the commencement of litigation. Mediation shall be conducted by any neutral
mediator selected by both parties. If the parties cannot agree on the selection
of a mediator, then either party may seek an order of the court of competent
jurisdiction to appoint a mediator. The party requesting the court to appoint a
mediator shall be entitled to reasonable attorney's fees and costs incurred in
obtaining the order. In the event mediation does not resolve the parties
dispute, then either party may commence an action against the other party.
21. Attorney's Fees: In the event of any action arising out of this
Agreement, the prevailing party will be entitled to reasonable attorney's fees
and costs, including pre-litigation attorney's fees and costs.
22. Further Assurances: Each party shall execute such documents and
perform such acts as may be reasonably necessary or appropriate to carry out the
terms of this Agreement.
23. Review By Counsel: Each party has had the opportunity to review this
Agreement with an attorney of his or its choice, and each party acknowledges
this Agreement is entered into voluntarily.
AGREED AGREED
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Iorilla /June 18, 1999
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Xxxxxxx X. Xxxxxxx Authorized Agent Date
XXXXX Corporation
Date: June 18, 1999
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