AGREEMENT
THIS AGREEMENT, as of March 6, 1998 and effective as provided below, by
and between LUMEN TECHNOLOGIES, INC., a Delaware corporation (the "Company"),
and XXXXX X. XXXXXXXXXXX, a resident of California ("Xxxxxxxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxxxxxxx currently is the Chairman of the Board and Chief
Executive Officer of ILC Technology, Inc., a California corporation (referred
to hereinafter "ILC") and Xxxxxxxxxxx and ILC are parties to various agreements
relating to Xxxxxxxxxxx'x employment by ILC (the "Employment Contract");
WHEREAS, ILC and the Company previously have entered into an agreement
regarding the merger of a subsidiary of the Company into ILC whereby the
shareholders of ILC acquire common stock of the Company in exchange for their
ILC common stock ("Combination");
WHEREAS, the Company and ILC desire to terminate the Employment Contract,
pursuant to the terms and conditions set forth herein in the event that the
Combination is closed;
WHEREAS, Xxxxxxxxxxx is willing to accept such termination, pursuant to
the terms and conditions set forth herein, in the event that the Combination is
closed;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration,
receipt of which is acknowledged hereby, the Company and Xxxxxxxxxxx agree as
follows:
1. COMMENCEMENT. This Agreement shall be expressly conditioned upon the
closing of the Combination between the Company and ILC. If the Combination does
not close, this Agreement shall terminate with no further obligations between
the parties. If the Combination does close, this Agreement shall become fully
effective on such closing date and such closing date shall be the "Effective
Date" of this Agreement.
2. TERMINATION AND COMPENSATION. Effective on the Effective Date,
Xxxxxxxxxxx'x term as an officer or director of ILC, and his employment by ILC,
shall end without further notice. In consideration for such termination and
Xxxxxxxxxxx'x acceptance thereof, the Company shall pay Xxxxxxxxxxx or his
estate, and Xxxxxxxxxxx shall accept from the Company, as consideration and in
full satisfaction for termination of the Employment Contract and Xxxxxxxxxxx'x
full observance and performance of all of the provisions hereof, the total
amount of $1,100,000 payable as follows:
a. $300,000 on the date of the execution hereof;
b. $300,000 on the first anniversary date hereof; and
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c. $166,666 on each of the third, fourth and fifth anniversary dates
hereof.
Xxxxxxxxxxx acknowledges and agrees that he shall not be eligible for any other
payments whatsoever, whether as an employee or otherwise, and that he will not
participate in any of the Company's bonus or benefit programs in effect from
time to time.
3. TERMINATION OF EMPLOYMENT CONTRACT. The parties acknowledge that
Xxxxxxxxxxx and ILC are parties to the existing Employment Contract. Upon the
date hereof, and in consideration of the payments set forth in Section 3,
above, and the mutual covenants and agreements contained herein, the
Employment Contract shall terminate and neither ILC nor the Company shall have
any obligations thereunder other than in respect of salary accrued through and
unpaid as of such date.
4. CONFIDENTIALITY. For purposes of this Section 4, all references to the
Company shall be deemed to include the Company's subsidiary corporations and
affiliates, including (without limitation) ILC. Xxxxxxxxxxx acknowledges that
he has had and in the future will have knowledge of, and access to, proprietary
and confidential information of the Company and its affiliates, including
(without limitation) ILC, including (without limitation), inventions, trade
secrets, technical information, know-how, plans, specifications, methods of
operations, financial and marketing information and the identity of customers
and suppliers (collectively, the "Confidential Information"), after August 1,
1996, and that such information, even though it may be contributed, developed
or acquired by Xxxxxxxxxxx, constitutes valuable, special and unique assets of
the Company developed at great expense which are the exclusive property of the
Company. Accordingly, Xxxxxxxxxxx shall not, at any time, during the five (5)
year period commencing upon the Effective Date, use, reveal, report, publish,
transfer or otherwise disclose to any person, corporation or other entity, any
of the Confidential Information without the prior written consent of the
Company, except to responsible officers and employees of the Company, and other
responsible persons who are in a contractual or fiduciary relationship with the
Company, and who have a need for such information for purposes in the best
interests of the Company, as appropriate, and except for such information which
is or becomes of general public knowledge in the industry from authorized
sources other than Xxxxxxxxxxx or is required to be disclosed pursuant to order
of any court or regulatory agency of competent jurisdiction. Xxxxxxxxxxx
acknowledges that the Company would not enter into this Agreement without the
assurance that all such confidential and proprietary information will be used
for the exclusive benefit of the Company.
5. REMEDIES. The restrictions set forth in section 4 are considered by the
parties to be fair and reasonable. Xxxxxxxxxxx acknowledges that the Company
would be irreparably harmed and that monetary damages would not provide an
adequate remedy in the event of a breach of the provisions of Section 4.
Accordingly, Xxxxxxxxxxx agrees that, in
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addition to any other remedies available to the Company, the Company shall be
entitled to seek injunctive and other equitable relief to secure the
enforcement of these provisions. If any provisions of Section 4 are adjudicated
to be invalid or unenforceable, the invalid or unenforceable provisions shall
be deemed amended (with respect only to the jurisdiction in which such
adjudication is made) in such manner as to render them enforceable and to
effectuate as nearly as possible the original intentions and agreement of the
parties.
6. MISCELLANEOUS.
A. SURVIVAL. The provisions of Sections 4 and 5 shall survive the
termination of this Agreement.
B. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject
matter hereof.
C. MODIFICATION. This Agreement may not be modified or terminated
orally, and no modification, termination or attempted waiver of any of the
provisions hereof shall be binding unless in writing and signed by the party
against whom the same is sought to be enforced.
D. WAIVER. Failure of a party to enforce one or more of the
provisions of this Agreement or to require at any time performance of any of
the obligations hereof shall not be construed to be a waiver of such provisions
by such party nor to in any way affect the validity of this Agreement or such
party's right thereafter to enforce any provision of this Agreement, nor to
preclude such party from taking any other action at any time which it would
legally be entitled to take.
E. SUCCESSORS AND ASSIGNS. Neither party shall have the right to
assign this Agreement, or any rights or obligations hereunder, without the
consent of the other party; provided, however, that upon the sale of all or
substantially all of the assets, business and goodwill of the Company to
another company, or upon the merger or consolidation of the Company with
another company, this Agreement shall inure to the benefit of, and be binding
upon, both Xxxxxxxxxxx and the company purchasing such assets, business and
goodwill, or surviving such merger or consolidation, as the case may be, in the
same manner and to the same extent as though such other company were the
Company. Subject to the foregoing, this Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their legal representatives,
heirs, successors and assigns.
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F. COMMUNICATIONS. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been given at the time personally delivered or when mailed in any United
States post office enclosed in a registered or certified postage prepaid
envelope and addressed to the addresses set forth below, or to such other
address as any party may specify by notice to the other party; provided,
however, that any notice of change of address shall be effective only upon
receipt.
To the Company: Lumen Technologies, Inc.
000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, XX 00000
To Xxxxxxxxxxx: Xxxxx X. Xxxxxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
G. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, such invalidity
or unenforceability shall not affect the validity and enforceability of the
other provisions of this Agreement and the provisions held to be invalid or
unenforceable shall be enforced as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability.
H. JURISDICTION VENUE. This Agreement shall be subject to the
exclusive jurisdiction of the courts of California. Any breach of any
provisions of this Agreement shall be deemed to be a breach occurring in the
State of California and the parties irrevocably and expressly agree to submit
to the jurisdiction of the courts of the State of California, or the Federal
Courts having concurrent geographic jurisdiction, for the purpose of resolving
any disputes among them relating to this Agreement or the transactions
contemplated by this Agreement. In the event of any dispute arising hereunder,
the prevailing party shall be entitled to recover from the other all costs and
expenses, including reasonable attorney's fees, incurred by such prevailing
party in connection therewith.
I. GOVERNING LAW. This Agreement is made and executed and shall be
governed by the laws of the State of California, without regard to the
conflicts of law principles thereof.
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IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Agreement as of the date set forth above.
LUMEN TECHNOLOGIES, INC.
By: /s/
-----------------------------
Its: Chief Financial Officer
-----------------------------
EMPLOYEE
/s/ Xxxxx Xxxxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxxxx
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