EXHIBIT 10.41
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of July 24, 2000, by and between SSE Telecom, Inc., a Delaware corporation
(the "Company"), and Xxxxx X. Xxxxxxx, an individual (the "Employee").
WHEREAS, the Company and the Employee have determined that it is in
their respective best interest to enter into this Agreement on the terms and
conditions as set forth herein. For good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. EMPLOYMENT TERMS AND DUTIES
1.1 Employment. The Company shall employ Employee, and Employee shall
perform services for the Company, for the period commencing on the "Hire
Date" and ending when terminated as described in Section 1.4.
1.2 Duties. The Employee shall serve as Vice President of Marketing.
Employee shall perform all reasonable duties assigned by the Company
consistent with those assigned to other employees of the Company
possessing a comparable job position. Employee understands and agrees
that his employment with the Company may require travel and overnight
stays ("Travel Assignments"), and Employee agrees to accept all Travel
Assignments reasonably assigned by the Company. The Employee shall
diligently perform his duties to further the interests of the Company.
1.3 Compensation and Benefits.
1.3.1 Base Salary. In consideration of the services rendered to the Company
hereunder by the Employee, and under the Company's Confidentiality,
Proprietary Information and Inventions Agreement, the Company shall,
during the Employment Term, pay the Employee a salary at the annual rate
of $ 160,000 (the "Base Salary"). The Base Salary shall be payable in
accordance with the normal payroll practices of the Company then in
effect. The Base Salary and all other forms of compensation paid to the
Employee hereunder shall be subject to all applicable taxes required to
be withheld by the Company pursuant to federal, state or local law. The
Employee shall be solely responsible for income taxes imposed on the
Employee.
1.3.2 Management Bonus. Employee will be entitled to an annual Management
Bonus of up to 40% of his base salary then in effect, payable annually
in accordance with the Company's management bonus plan, as approved by
the Board of Directors. The first year management bonus, for fiscal year
2000, is guaranteed at 40% of base salary, pro-rated for months employed
in the balance of the fiscal year. The second year management bonus, for
fiscal year 2001, will be guaranteed at 40% of then base salary.
1.3.3 Signing Bonus. A $25,000 signing bonus will be paid to the employee upon
his employment, which amount employee agrees to refund to the Company if
he voluntarily terminates his employment less than six months after his
hire date.
1.3.4 Stock Option. Company agrees to grant the employee an option to purchase
50,000 shares of the company's common stock, listed as SSET on the
Nasdaq National Market. This grant will be in accordance with the
Company's shareholder-approved employee stock option plan, and the xxxxx
xxxxx will be the closing price of SSET on the first day of employee's
employment.
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1.3.5 Loan. Company agrees to grant employee a non-secured loan of $40,000 for
a term of two years, interest-free, with principal repayment due upon
employee's termination or after period of two years from employment
date, whichever comes first.
1.3.6 Benefits Package. In addition to base salary, the Employee shall be
entitled to receive such employee benefits as may be in effect from time
to time as are afforded to other comparable employees of the Company,
including vacation, personal paid leave, medical and dental insurance,
employee stock purchase plan and 401(k) plan.
1.3.7 Expenses. The Company shall reimburse the Employee for all reasonable
business expenses incurred by the Employee in accordance with Company
policy for business expenses. Employee will be provided at Company's
expense a desk-top computer, lap-top computer, cellular phone and pager
for use in Company business.
1.4 Termination. The Employee's employment and this Agreement (except as
otherwise provided hereunder) shall terminate upon the occurrence of any
of the following, at the time set forth therefor (the "Termination
Date"):
1.4.1 Death or Disability. Immediately upon the death of the Employee or the
determination by the Company that the Employee has ceased to be able to
perform his essential job duties, with or without reasonable
accommodation, due to a mental or physical illness or incapacity for a
period of more than twenty four (24) weeks during any twelve (12) month
period ("Disability") (termination pursuant to this Section 1.4.1 being
referred to herein as termination for "Death or Disability"); or
1.4.2 Voluntary Termination. Thirty (30) days following the Employee's written
notice to the Company of termination of employment; provided, however,
that during such thirty (30) day notice period, the Company may suspend
the Employee from his duties as set forth herein (including, without
limitation, the Employee's position as a representative and agent of the
Company) (termination pursuant to this Section 1.4.2 being referred to
herein as "Voluntary" termination); or
1.4.3 Termination For Cause. Immediately following notice of termination for
"Cause" (as defined below), specifying such Cause, given by the Company
(termination pursuant to this Section 1.4.3 being referred to herein as
termination for "Cause"). As used herein, "Cause" means termination
based on (i) Employee's conviction of any crime constituting a felony or
any other offense involving fraud or moral turpitude, (ii) the failure
or refusal of the Employee to follow the lawful and proper directives of
the Company which are within the scope of thc Employee's duties set
forth in Section 1.2 above, (iii) willful malfeasance or gross
misconduct by the Employee which discredits or damages the Company, (iv)
any breach of Employee's obligations under Section 3 below, or under the
Company's Confidentiality, Proprietary Information and Inventions
Agreement, (v) the Employee's chronic absence from work for reasons
other than mental or physical illness or incapacity (as used herein,
"chronic absence" means greater than 25% of normal work time over a one
year period), (vi) Employee's failure to fulfill his duties under this
Agreement in a satisfactory manner, (vii) any material breach by
Employee of this Agreement, or (viii) the Employee's failure to devote
all of his normal business time to the performance of his duties to the
Company; or
1.4.4 Termination Without Cause. Thirty (30) days following notice of
termination without Cause given by the Company; provided, however, that
during any such thirty (30) day notice period, the Company may suspend
the Employee from his duties as set forth herein (including, without
limitation, the Employee's position as a representative and agent of the
Company) (termination pursuant to this Section 1.4.4 being referred to
herein as termination "Without Cause").
1.4.5 Termination for Good Reason. Thirty (30) days following notice of
termination for Good Reason given by the Employee; provided, however,
that during any such thirty (30) day notice period, the Company may
suspend the Employee (with pay) from his duties as set forth herein
(including, without limitation, the Employee's position as a
representative and agent of the Company). As used herein, for
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"Good Reason" means termination following (i) a reduction in Employee's
level of responsibility as set forth in section 1.2 or (ii) a change in
Employee's place of employment which is more than Thirty (30) miles from
Employee's place of employment prior to the change; provided and only
if, such change is effected without Employee's written agreement.
(termination pursuant to this Section 1.4.5 being referred to herein as
termination "for Good Reason").
1.4.6 Other Remedies. Termination pursuant to Section 1.4.3. above shall be in
addition to and without prejudice to any other right or remedy to which
the Company may be entitled at law, in equity, or under this Agreement.
1.5 Severance and Termination.
1.5.1 Voluntary Termination, Termination for Cause, Termination for Death or
Disability. In the case of a termination of Employee's employment
hereunder for Death or Disability in accordance with Section 1.4.1
above, or Employee's Voluntary termination of employment hereunder in
accordance with Section 1.4.2 above, or a termination of the Employee's
employment hereunder for Cause in accordance with Section 1.4.3 above,
(i) the Employee shall not be entitled to receive payment of, and the
Company shall have no obligation to pay, any severance or similar
compensation attributable to such termination, other than Base Salary
earned but unpaid as of the Termination Date, vacation pay, Management
Bonus, expenses and other benefits due the employee and (ii) the
Company's obligations under this Agreement shall immediately cease.
1.5.2 Termination Without Cause, Termination for Good Reason. In the case of a
termination of the Employee's employment hereunder Without Cause in
accordance with Section 1.4.4 or for Good Reason in accordance with
Section 1.4.5, the Company shall pay the Employee six months base salary
plus medical and dental insurance coverage paid evenly over the six
month period following termination, according to Company's normal
payroll practices at the time of termination plus any other outstanding
payments due at the time such as Management Bonus, expenses, etc.
2. PROPRIETARY INFORMATION AGREEMENT.
Employee understands and agrees that his employment with the Company is
contingent upon signing the Company's confidentiality, proprietary information
and inventions agreements, prior to beginning work for the Company.
3. REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE
The Employee represents and warrants to the Company that (i) the
Employee is not bound by or subject to any contractual or other obligation that
would be violated by his execution or performance of this Agreement, including,
but not limited to, any non-competition agreement presently in effect, and (ii)
the Employee is not subject to any pending or, to the Employee's knowledge,
threatened claim, action, judgment, order or investigation that could adversely
affect his ability to perform his obligations under this Agreement or the
business reputation of the Company.
4. MISCELLANEOUS
4.1 Notices. All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
against written receipt or by facsimile transmission with answer back
confirmation or mailed (postage prepaid by certified or registered mail, return
receipt requested) or by overnight courier to the parties at the following
addresses or facsimile numbers:
If to the Employee, to:
Xxxxx X. Xxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
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If to the Company, to:
SSE Telecom, Inc.
00000 Xxxxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
All such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section 4.1, be deemed
given upon delivery, (ii) if delivered by facsimile transmission to the
facsimile number as provided in this Section 4.1, be deemed given upon receipt,
and (iii) if delivered by mail in the manner described above to the address as
provided in this Section 4.1, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice, request or other communication
is to be delivered pursuant to this Section). Any party from time to time may
change its address, facsimile number or other information for the purpose of
notices to that party by giving written notice specifying such change to the
other parties hereto.
4.1 Obligations Contingent on Performance. The obligations of the Company
hereunder, including its obligation to pay the compensation provided for
herein, are contingent upon the Employee's performance of his
obligations hereunder. The obligations of the Employee hereunder are
contingent upon the Company's performance of its obligations hereunder.
4.2 Payments Conditioned on Release of Claims. The Company's obligation to
provide Employee with the Severance Payment set forth in Section 1.5.2
is contingent on Employee's execution of a satisfactory release of
claims in favor of the Company.
4.3 Entire Agreement. This Agreement supersedes all prior discussions and
agreements among the parties with respect to the subject matter hereof
and contains the sole and entire agreement between the parties hereto
with respect thereto.
4.4 Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No
waiver by any party hereto of any term or condition of this Agreement,
in any one or more instances, shall be deemed to be or construed as a
waiver of the same or any other term or condition of this Agreement on
any future occasion. All remedies, either under this Agreement or by law
or otherwise afforded, will be cumulative and not alternative.
4.5 Amendment. This Agreement may be amended, supplemented or modified only
by a written instrument duly executed by or on behalf of each party
hereto.
4.6 No Third Party Beneficiary. The terms and provisions of this Agreement
are intended solely for the benefit of each party hereto and the
Company's successors or assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person.
4.7 No Assignment; Binding Effect. This Agreement shall inure to the benefit
of any successors or assigns of the Company. The Employee shall not be
entitled to assign his obligations under this Agreement.
4.8 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions
hereof.
4.9 Severability. The Company and the Employee intend all provisions of this
Agreement to be enforced to the fullest extent permitted by law.
Accordingly, if a court of competent jurisdiction determines that the
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scope and/or operation of any provision of this Agreement is too broad
to be enforced as written, the Company and the Employee intend that the
court should reform such provision to such narrower scope and/or
operation as it determines to be enforceable. If, however, any provision
of this Agreement is held to be illegal, invalid, or unenforceable under
present or future law, and not subject to reformation, then (i) such
provision shall be fully severable, (ii) this Agreement shall be
construed and enforced as if such provision was never a part of this
Agreement, and (iii) the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by illegal,
invalid, or unenforceable provisions or by their severance.
4.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to
contracts executed and performed in such State without giving effect to
conflicts of laws principles.
4.11 Counterparts. This Agreement may be executed in any number of
counterparts and by facsimile, each of which will be deemed an original,
but all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the date first written above
Employee:
--------------------- ------------
Xxxxx X. Xxxxxxx Date
SSE Telecom, Inc:
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Xxxx X. Xxxxxxxxxx Date
President and Chief Executive Officer
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