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Exhibit 10.35
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective as of
the 18th day of May, 1998, by and between SSE TELECOM, INC. ("Telecom"), a
Delaware corporation (as used herein, Telecom and its affiliates and
subsidiaries are collectively referred to as the "Company", unless the context
requires otherwise or it is otherwise specifically provided) and XXXXXXX X.
XXXXXXXX, residing at the address set forth after his signature (the
"Executive").
WHEREAS, the Company wishes to employ the Executive as a full time
employee of the Company in an executive capacity; and
WHEREAS, the Executive wishes to be employed by the Company on the
terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and intending to be legally bound the parties hereto
agree as follows:
1. Term. The Executive's employment shall commence on May 18, 1998 (the
"Effective Date") and subject to the provisions of Section 8 hereof, the Company
hereby agrees to employ Executive and the Executive hereby accepts such
employment with the Company upon the terms and conditions herein provided.
2. Duties. The Executive, subject to the direction and control of
Telecom's Board of Directors, shall devote his full time, attention and energies
to the business and affairs of Telecom and promote the interests and welfare of
Telecom. The Executive shall also provide services to and for the benefit of the
subsidiaries and affiliates of Telecom as such further duties may, from time to
time, be specified by the Board of Directors of Telecom. The Executive shall
serve as Executive Vice President, Business Development. The Executive agrees to
perform his duties in an efficient, trustworthy and business-like manner,
consistent with the policies set by the Board of Directors of Telecom who shall
have the power to alter or change the general practices of the business as such
Board deems necessary to the best interests of the Company. The Executive shall
not, during the term hereof, be interested directly or indirectly, in any
manner, as partner, officer, director, stockholder, advisor, employee or in any
other capacity in any other business, without Telecom's written consent;
provided, however, that nothing herein contained shall be deemed to prevent or
limit the right of Executive to participate as a passive investor in any
business venture. The Company acknowledges and consents to Executive's
continuing participation as a member of the Board of Directors of Web Silicon,
Inc.
3. Compensation Plan; Base Salary; Annual Review.
(a) Compensation Plan. As compensation for the Executive's
services under this Agreement, Executive shall be entitled to receive during his
employment the base salary and fringe benefits in accordance with this Section 3
and in accordance with the compensation plan fixed for each fiscal year of the
Company, commencing with the current fiscal year, and bonuses in accordance with
Section 4 and stock options in accordance with Section 5.
(b) Base Salary for Current Fiscal Year. For all services
rendered by the Executive under this Agreement, the Executive shall be paid an
annual base salary. The annual base salary is One Hundred Eighty-Five Thousand
Dollars ($185,000). The annual base salary may be increased from time to time
during the term of this Agreement and shall be payable to the Executive by
Telecom, or by a subsidiary of Telecom, in accordance with the practice adopted
by such company for payment of wages to its employees.
(c) Annual Review. The Company will review the compensation
payable by the Company to the Executive not less frequently than once annually,
with the purpose of adjusting the Executive's compensation in such manner as
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the Company shall deem appropriate. Any such adjustment may modify the
Executive's base salary, establish provisions for the obtaining of bonus
compensation, provide for the granting of stock options and fix the fringe
benefits to be made available to Executive. Nothing herein shall be deemed to
obligate the Company to adjust the Executive's compensation, the parties hereby
acknowledging that, except as otherwise provided in Section 8, this is an at
will employment agreement.
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4. Bonuses
(a) Bonus Compensation Plan. Bonus compensation shall be
payable in cash and/or stock options in accordance with a bonus compensation
plan put into effect by Telecom's Board of Directors for each fiscal year. The
bonus compensation plan will be administered by a committee appointed by
Telecom's Board of Directors. For the fiscal year beginning October 1, 1998, and
each fiscal year thereafter, the Executive shall have the opportunity to earn a
bonus compensation with a target range of fifty percent (50%) of base salary
upon the Company's achieving certain pre-established goals in such areas as
Company profitability, advancement in the public market of the price of
Telecom's common stock, and operations. The pre-established goals, which are
subject to the approval of the Compensation Committee of Telecom's Board of
Directors, will be mutually determined by the Company and the Executive for each
fiscal year, prior to or within thirty (30) days of the commencement of each
fiscal year.
Notwithstanding the foregoing paragraph, the Company will pay the
Executive a bonus payment of $45,000 in January 1999, such payment to be applied
against any bonus that may be earned by the Executive under the bonus
compensation plan in effect for such year.
(b) Commitment Bonus. In recognition of Executive's commitment
to be employed by the Company, in addition to any bonuses that may be earned by
the Executive under any bonus compensation plans established by the Company, the
Company will make a one-time payment of $35,000 to the Executive, on an agreed
date, but not later than January, 1999.
5. Stock Options. The Executive will be granted stock options for an
aggregate of 100,000 shares of Telecom's common stock, of which 75,000 shares
will be granted on the Effective Date and 25,000 shares will be granted on the
first anniversary of the Effective Date. Subject to applicable Internal Revenue
Code limitations, the options will be issued, to the extent possible, as
incentive stock options. The options will be granted at fair market value on the
date of grant, and will vest and be exercisable in accordance with the policies
now in effect for the granting by Telecom of options to its employees, except as
otherwise provided under Section 8(c)(iii) below.
6. Expenses. The Executive may incur reasonable expenses in connection
with promoting and operating the Company's business, including expenses for
entertainment, travel and similar items. If Executive has complied with the
Company policy regarding business expenses, the Company will reimburse the
Executive for all such expenses upon the Executive's periodic presentation of an
itemized account of such expenditures. However, in no event shall said
Executive's business expenses exceed the Company's policy.
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7. Fringe Benefits. The Company has adopted policies in respect to
fringe benefits for employees in the nature of health and life insurance,
holidays, vacation, sick leave policies and disability. A copy of the Company's
present policies in respect to fringe benefits has been delivered by the Company
to Executive. The Company may from time to time amend its present policies and
adopt other fringe benefits to be generally available to all employees. The
Company covenants and agrees that Executive shall be entitled to participate in
any such fringe benefit policies adopted by the Company to the same extent that
such fringe benefits shall be available to and for the benefit of executive
level employees. The Company will give the Executive a vacation of fifteen (15)
days with pay each year during the term of this Agreement, the time for vacation
to be determined by mutual agreement between Company and Executive.
8. Termination of Employment.
(a) Termination With Cause. The Company may terminate this
Agreement without any further compensation to Executive beyond the date of
termination for breach of this Agreement, willful or gross misconduct in
performance of duties, dishonesty, fraud, theft, embezzlement or any criminal
act.
(b) Termination Without Cause.
(i) Without cause, the Company may terminate this
Agreement at any time upon fifteen (15) days' written notice to Executive. In
such event, the Executive, if requested by the Company, shall continue to render
his services and shall be paid his regular compensation up to the date of
termination. In addition, if Executive is terminated without cause, (a) within
the first twelve (12) month period from the Effective Date, the Executive shall
be entitled to receive, and shall receive, "Continuing Compensation" as
hereafter defined in subsection (iii) for a period of twelve (12) months from
the date of termination, payable in monthly installments during the twelve (12)
month period following termination, (b) within the second twelve (12) month
period from the Effective Date, the Executive shall receive Continuing
Compensation for a period of nine (9) months from the date of termination,
payable in monthly installments during the twelve (12) month period following
termination; and (c) within the third twelve (12) month period from the
Effective Date and thereafter the Executive shall receive Continuing
Compensation for a period of six (6) months from the date of termination,
payable in monthly installments during the twelve (12) month period following
termination.
(ii) Without cause, the Executive may terminate this
Agreement upon not less than sixty (60) days written notice to the Company. In
such event, unless otherwise directed by the
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Company, Executive shall continue to render his services and shall be paid his
regular compensation up to the date of termination of employment. Bonus
compensation that has been earned by the Executive through the date of his
termination shall be paid to Executive.
(iii) "Continuing Compensation" means and includes
the following: (x) the Executive's base salary as in effect as of the effective
date of termination, (y) any bonus compensation that would have been earned by
Executive based on the factors or elements of the bonus compensation plan which
had been achieved by Executive through the effective date of termination, and
(z) the fringe benefits customarily being made available by the Company to
Executive for health, life and disability insurance, but excluding the accrual
of holidays, vacation and sick leave, and further excluding any participatory
contributions by the Company to 401k or stock purchase or similar plans. If the
Company is obligated to make payment of any continuing compensation, such
payments shall be made during the applicable period at the same time that the
Company would make such payments on behalf of its regular employees.
(c) Termination Upon Change of Control.
(i) If the Executive's employment is terminated by
the Company as a result of a "Change of Control" (as defined below), the
Executive shall be entitled to receive Continuing Compensation as defined in
subsection (b)(iii) above for a period of twelve (12) months from the effective
date of the termination of the Executive's employment. For purposes of this
subsection (c)(i), the following shall also be deemed a termination of
Executive's employment: a material reduction in Executive's position,
responsibilities, title, salary or benefits, or if as condition of continued
employment, the Executive is required to relocate from the San Francisco area.
(ii) For purposes of this Section 8(c), a "Change of
Control" shall be deemed to have taken place if (A) a third person, including a
"group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, acquires shares of Telecom having 50% or more of the total number of
votes that may be cast for the election of Directors of Telecom; or (B) as the
result of any cash tender or exchange offer, merger or other business
combination, sale of assets or contested election or any combination of the
foregoing transactions (a "Transaction"), the persons who were directors of
Telecom before the Transaction shall cease to constitute a majority of the Board
of Telecom.
(iii) In the event of a Change of Control all
outstanding options held by Executive to acquire Telecom stock shall vest as of
the date of the Change of Control.
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(d) Death During Employment. If the Executive dies during the
term of employment, the Company shall pay to the estate of the Executive the
compensation which would otherwise be payable to the Executive through the end
of the month in which his death occurs, including payments for accrued vacation
and accrued bonus.
9. Protective Covenants; Remedies.
(a) Non-Disclosure of Confidential Information. Executive will
not, during the term of this Agreement, or at any time during the two (2) year
period thereafter, divulge, furnish or make accessible to anyone other than the
Company, the directors and officers of the Company, unless otherwise in the
regular course of the business of the Company, any knowledge or information with
respect to (i) confidential or secret documents, processes, plans, models, sales
data, contracts, financial costs, product prices, devices, business
opportunities or any other material relating to the business and activities of
Telecom or its subsidiaries or affiliates, or (ii) any other confidential or
secret aspect of the business of Telecom or its subsidiaries or affiliates,
including without limitation any lists or other information with respect to any
clients or customers of Telecom or its subsidiaries or affiliates (the foregoing
being hereinafter collectively referred to as the "Confidential Information").
The Executive acknowledges that such Confidential Information is of special and
peculiar value to the Company; is the property of the Company, the product of
years of experience and trial and error; is not generally known to the Company's
competitors; and is regularly used in the operation of the Company's business.
(b) Non-Competition. The Executive agrees that during the term
of this Agreement and for the six month period following termination of
Executive's employment, as per Section 8(b), the Executive will not, directly or
indirectly, own, manage, operate, control, be employed by, participate in, or be
connected in any manner with ownership, management, operation or control of any
business, directly in competition with the business conducted by Telecom, its
subsidiaries or affiliates, at the time of the termination of this Agreement.
(c) Suspension of Time. Notwithstanding any provision of this
Agreement to the contrary, the time periods for the protective covenants set
forth herein shall be suspended during the period of any breach or violation of
such protective covenant, and likewise shall be suspended for the time in which
there shall be pending in any court of competent jurisdiction, any action or
proceeding to enforce such covenant where temporary or injunctive relief has not
been granted.
(d) Acknowledgment Regarding Protective Covenants. The
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Executive acknowledges and understands that the covenants provided for in this
Section 9 are limited to the covenants set forth herein and do not preclude the
Executive upon the termination of this Agreement from obtaining gainful
employment or utilizing the Executive's general business skills, and that
numerous opportunities exist for the Executive to utilize such skills. Although
the Executive agrees that the time and area restraints set forth herein are
reasonable; nevertheless, if for any reason now unforeseen, a court of competent
jurisdiction finds that the time and/or area restraints agreed to herein by the
parties are
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unreasonable then the time and/or area restraints agreed to herein shall be
reduced to an area and/or duration deemed reasonable by such court. The
Executive acknowledges that he has read and understands the terms of this
Agreement, that same was specifically negotiated, and that the protective
covenants agreed upon herein are necessary for the protection of the Company's
business as a result of the business secrets that will be disclosed during the
employment.
(e) Remedies. In addition to any other rights and remedies
which are available to the Company, with respect to any breach or violation of
the protective covenants set forth herein, it is recognized and agreed that the
Company shall be entitled to obtain injunctive relief which would prohibit the
Executive from continuing any breach or violation of such protective covenants.
The Company may pursue any of the remedies allowed by this Agreement
concurrently or consecutively in any order as to any breach or violation of the
protective covenants, and the pursuit of any such remedies at any time will not
be deemed an election of remedies or waiver of the right to pursue the other of
such remedies as to that breach or violation, or as to any other breach or
violation of this Agreement. Pursuit of one or more remedies shall not preclude
pursuit of any other remedies herein provided or any other remedy that may be
available to the Company.
10. Disputes. In the event of any litigation between the Company and
the Executive arising out of this Agreement, and the rights and obligations of
the parties hereunder, the prevailing party shall be entitled to seek an award
from the court to recover his or its reasonable attorney's fees and court costs.
11. Notices. Any notice required or permitted to be given under this
Agreement shall be deemed sufficient if in writing, and sent by registered or
certified mail to his residence, in the case of the Executive or to its
principal office, in the case of the Company.
12. Waiver of Breach. The failure of either party to insist in any one
or more instances upon performance of any terms or conditions of this Agreement
shall not be construed as a waiver of future performance of any such term,
covenant, or condition, but the obligations of either party with respect thereto
shall continue in full force and effect.
13. Assignment. Executive acknowledges that said services to be
rendered by him are unique and personal. Accordingly, the Executive may not
assign any of his rights or delegate any of his duties or obligations under this
Agreement. The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
the Company.
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14. Entire Agreement. This Agreement supersedes all previous agreements
between the Company and Executive and contains the entire understanding and
agreement between the parties with respect to the subject matter hereof, and
cannot be amended, modified or supplemented in any respect except by a
subsequent written agreement entered into by both parties.
15. Applicable Law. The validity, enforceability and interpretation of
this Agreement shall be determined and governed by the laws of the State of
Delaware.
16. Number of Agreements. This Agreement may be executed in any number
of counterparts, any one of which may be deemed original.
17. Severability. If any of the provisions of this Agreement are held
to be invalid or unenforceable, all other provisions hereof shall nevertheless
continue in full force and effect.
18. Pronouns. The use of any word in any gender shall be deemed to
include any other gender and the use of any word in the singular shall be deemed
to include the plural where the context requires.
19. Headings. The section headings used in this Agreement are for
convenience only and are not to be controlling with respect to the contents
thereof.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date set forth above.
COMPANY:
SSE TELECOM, INC.
May 14, 1998 By: /s/ Xxxx X. Xxxxxxxxxx
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Date Xxxx X. Xxxxxxxxxx, President
and Chief Executive Officer
EXECUTIVE:
May 15, 1998 /s/ Xxxxxxx X. Xxxxxxxx
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Date Xxxxxxx X. Xxxxxxxx
00000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
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