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AGREEMENT
This agreement ("Agreement") is made and entered into effective as of the
21st day of May, 1997, by and among SSE TELECOM, INC., Delaware corporation
(herein "SSE Telecom"), SSE TECHNOLOGIES INC., a Delaware corporation (herein
"SSE Technologies", and together with SSE Telecom, herein the "Company"); and
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (herein "▇▇. ▇▇▇▇▇▇").
In consideration of the covenants and agreements herein contained, and the
benefits to be derived herefrom, the parties, intending to be legally bound,
agree as follows:
1. Preliminary Provisions.
(a) ▇▇. ▇▇▇▇▇▇ and SSE Technologies are parties to that certain Employment
Agreement effective as of October 1, 1991, providing for the full time
employment of ▇▇. ▇▇▇▇▇▇ by SSE Technologies (the "Employment Agreement"). SSE
Technologies is a wholly-owned subsidiary of SSE Telecom, and pursuant to the
Employment Agreement, ▇▇. ▇▇▇▇▇▇ provides his full time and attention to the
business and affairs of SSE Technologies and to its parent, SSE Telecom, and
other subsidiaries and affiliated companies. Now, and for a period of years
prior hereto, ▇▇. ▇▇▇▇▇▇ has served as President of SSE Telecom, and has been
its senior executive officer.
(b) ▇▇. ▇▇▇▇▇▇ desires, over a period of months following the date of this
Agreement, to reduce the amount of his time and attention devoted to the affairs
of the Company, and the Company desires to secure ▇▇. ▇▇▇▇▇▇' continued full
time employment for a limited period, and thereafter to obtain the benefit of
his experience by retaining ▇▇. ▇▇▇▇▇▇ as an employee, but in a consulting
capacity. To accomplish the foregoing purposes, the parties agree to the further
provisions of this Agreement.
(c) Concurrent with the entering into of this Agreement, ▇▇. ▇▇▇▇▇▇ hereby
resigns his positions as President of the Company and as an officer of all
subsidiaries of the Company, such resignations to be effective as of June 30,
1997, or on an earlier date if the Company so elects by notice to ▇▇. ▇▇▇▇▇▇. If
the Company elects to accept any of such resignations as of an earlier date,
such date shall not be earlier than the giving of actual notice to ▇▇. ▇▇▇▇▇▇.
2. Interim Full Time Employment.
(a) For the period from the date of this Agreement, and continuing until
terminated as herein in this Section 2 provided (the "Interim Period"), ▇▇.
▇▇▇▇▇▇ shall continue as a full time employee of the Company pursuant to the
provisions of the Employment Agreement, and shall devote substantially his full
time and attention to the business of the Company, providing such services as
shall be requested of him from time to time, consistent with the duties as
described in Section 2 of the Employment Agreement. During the Interim Period,
the parties intend that ▇▇. ▇▇▇▇▇▇ shall principally focus his attention on the
items described in Section 4(a) below. The parties intend and expect that the
Interim Period shall extend for at least three (3) months, but not more than six
(6) months. The Company may fix the termination date of the Interim Period on
written notice to ▇▇. ▇▇▇▇▇▇, which notice may be given at any time that the
Company shall determine, in its sole discretion, that the continued full time
services of ▇▇. ▇▇▇▇▇▇ are not required; provided, however, if the notice is
given by the Company at any time prior to September 30, 1997, the Interim Period
shall, nevertheless, be deemed to end as of September 30, 1997, and not prior
thereto. In the event of termination by the Company of ▇▇. ▇▇▇▇▇▇' full time
employment prior to September 30, 1997, then for the period from such
termination through September 30, 1997, ▇▇. ▇▇▇▇▇▇' duties shall be as provided
in Section 4(b) below.
(b) In consideration of the further covenants and agreements herein
contained, including the Company's agreement for the payment of compensation
during the consulting period, ▇▇. ▇▇▇▇▇▇ agrees that during the Interim Period
he will devote his full time and attention and best efforts to the business of
the Company, consistent with the duties as described in Section 2 of the
Employment Agreement, and will not terminate his employment for the Interim
Period, without the Company's consent, prior to September 30, 1997.
3. Employment During Consulting Period. Upon termination of ▇▇. ▇▇▇▇▇▇'
full time employment on termination of the Interim Period as provided in Section
2 above, ▇▇. ▇▇▇▇▇▇ shall be employed by the
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Company providing the consulting and advisory services as provided in Section
4(b) below. Such twelve (12) month period is herein referred to as the
"Consulting Period".
4. Duties. ▇▇. ▇▇▇▇▇▇ shall:
(a) During the Interim Period, devote his full time and attention to the
business of the Company performing, to the best of his abilities, the duties and
responsibilities currently carried out by him, except as modified by the Company
by action of the Company's Board of Directors. The parties agree that during the
Interim Period, ▇▇. ▇▇▇▇▇▇' time and attention shall be principally focused on
the following areas:
(i) transitioning his responsibilities at the Company to other
executive level employees;
(ii) relationships with customers, with the objective of assuring the
Company's key customers and accounts of the Company's continuing
capabilities;
(iii) working the Company's other executive level employees to bring
to completion the several large pending contracts and to provide oversite
in the initial implementation of such contracts; and
(iv) providing supervisory and directional oversight to the Company's
federal sales activities.
The foregoing is intended to be representative of the critical transitional
items for which ▇▇. ▇▇▇▇▇▇ is requested to devote his attention, but such
listing is not intended to be inclusive, and ▇▇. ▇▇▇▇▇▇ shall provide his
services as requested by the Company. Notwithstanding the foregoing, ▇▇. ▇▇▇▇▇▇
shall not be required to provide services substantially different from those
carried out by him on behalf of the Company during the period immediately prior
to this Agreement.
(b) During the Consulting Period, ▇▇. ▇▇▇▇▇▇ shall not be required to
devote any substantial portion of his time and attention to the affairs of the
Company. ▇▇. ▇▇▇▇▇▇ shall continue as an employee of the Company, and at the
Company's election may be given the title of "Special Assistant to the
President". He shall assist the Company faithfully and diligently to achieve its
business objectives as may, from time to time, be requested by the president or
chief executive officer of the Company, and shall take no action which would be
contrary to such objectives. ▇▇. ▇▇▇▇▇▇, however, shall not be required to
perform duties different from those customarily assigned to senior executive
level personnel of the Company. During such period, ▇▇. ▇▇▇▇▇▇ shall no longer
have any policy making or staff authority on behalf of the Company, and shall
have no authority to bind the Company to any obligations. ▇▇. ▇▇▇▇▇▇ is not
required to make himself available on a regular basis at the offices of the
Company or any of its subsidiary or affiliated locations. Any services requested
of ▇▇. ▇▇▇▇▇▇ pursuant to this section may be provided by telecommunications.
5. Compensation and Benefits. In lieu of the compensation and benefits set
forth in the Employment Agreement, ▇▇. ▇▇▇▇▇▇ shall be entitled to the
following:
(a) A base salary of $183,000.00 per year payable during the Interim Period
and the Consulting Period, in accordances with the practices established by the
Company for payment of its employees, so long as ▇▇. ▇▇▇▇▇▇ is not in default of
the Employment Agreement or this Agreement, as now or hereafter amended.
(b) The fringe benefits which are provided to ▇▇. ▇▇▇▇▇▇ prior to the date
of this Agreement shall be continued, in full, during the Interim Period, such
benefits including health, life and disability insurance, and the
Company-provided automobile. During the Consulting Period, all such benefits
shall continue. ▇▇. ▇▇▇▇▇▇ shall not be entitled to the accrual of any vacation
or sick leave after the date of this Agreement.
(c) The sum of $28,912.00, subject to applicable withholding, in
satisfaction of all accrued and unused paid absences due to ▇▇. ▇▇▇▇▇▇ through
the date hereof, shall be paid concurrently with the execution of this
Agreement. From and after the date hereof, ▇▇. ▇▇▇▇▇▇ agrees that he shall no
longer accrue paid absences or be entitled to compensation for same.
(d) At the expiration of the Consulting Period, the Company will sell to
▇▇. ▇▇▇▇▇▇, for One and No/100 Dollars ($1.00), the laptop, fax machine and home
computer and printer now used by ▇▇. ▇▇▇▇▇▇ and in his possession, and if
requested so to do by ▇▇. ▇▇▇▇▇▇, will assign to ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ will
assume the lease obligation for the Lexus automobile now being used by ▇▇.
▇▇▇▇▇▇ and leased by the
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Company. Upon termination of the Consulting Period, the Company will offer to
▇▇. ▇▇▇▇▇▇ continuation of health insurance pursuant to COBRA.
6. Additional Benefits Upon Sale of Business. The parties agree that the
provisions of Section 4 of the Employment Agreement shall continue and shall be
applicable during the Interim Period to the same extent as set forth in such
sections. The provisions of Section 4 of the Employment Agreement shall be
applicable during the Consulting Period, but only in respect to a transaction
authorized by the Board of Directors of the Company during the Interim Period.
In the event that a transaction as contemplated in Section 4 of the Employment
Agreement shall occur, and ▇▇. ▇▇▇▇▇▇ becomes entitled to a Result Bonus as set
forth in such Section 4, then, to the extent of the Result Bonus payable under
such Section 4, the Company's obligation to make payment to ▇▇. ▇▇▇▇▇▇ under
Section 5(a) of this Agreement shall be adjusted as hereinafter provided. If ▇▇.
▇▇▇▇▇▇ becomes entitled to a Result Bonus and, for example, such bonus is
$50,000, then the payments otherwise payable to ▇▇. ▇▇▇▇▇▇ under Section 5(a)
above shall be reduced by $50,000, such reduction being made by eliminating the
monthly installments otherwise payable to ▇▇. ▇▇▇▇▇▇ under Section 5(a) above in
inverse order starting from the last of such monthly installments to the extent
of $50,000. Likewise, if the monthly installments payable under Section 5(a)
above have already been made to ▇▇. ▇▇▇▇▇▇ to the extent that there are not
sufficient unpaid monthly installments to offset against the Result Bonus, the
amount payable as the Result Bonus shall be appropriately reduced. Anything here
(or in the Employment Agreement) to the contrary notwithstanding: (a) ▇▇. ▇▇▇▇▇▇
shall not be required to remain in the employment of the Company or of the
acquiring company to any greater extent than specified in Section 4 above, in
order to qualify for the Option Bonus or the Result Bonus; and (b) Section 7(c)
of the Employment Agreement is deleted.
7. Protective Covenants. The provisions of Section 5 and Section 8
concerning confidentiality and restrictive covenants shall continue in
accordance with the provisions of the Employment Agreement and for the terms
therein provided, except that the first sentence of Section 8 of the Employment
Agreement is modified so that it shall read: "During the Consulting Period and
for the two (2) year period following the termination of the Consulting Period,
▇▇. ▇▇▇▇▇▇ will not directly own, manage, operate, control, be employed by,
participate in, or be connected in any manner with the ownership, management,
operation or control of any business, similar to the type of business conducted
by the Company at the time of the termination of the Interim Period". The
parties acknowledge that during the Consulting Period ▇▇. ▇▇▇▇▇▇ shall not be
required to devote his full working time and attention to the business of the
Company, and may be engaged in other activities, to which he shall be entitled
to devote a substantial portion of his time, but ▇▇. ▇▇▇▇▇▇ shall not be engaged
in other activities which are competitive to the business of the Company, as it
exists, during the Interim Period. ▇▇. ▇▇▇▇▇▇ acknowledges that the
confidentiality and restrictive covenant provisions have been in effect since at
least October 1991, are fair and reasonable, and are appropriate for the
legitimate business interests of the Company, and are not adverse or detrimental
to ▇▇. ▇▇▇▇▇▇' ability to be employed and adequately compensated following the
termination of the Consulting Period of this Agreement.
8. Other Matters.
(a) During the Interim Period, ▇▇. ▇▇▇▇▇▇ may continue to occupy the office
areas being used by him prior to the date of this Agreement, and may continue to
maintain a home office. During the Consulting Period, the Company shall make
such office space available at the Company's facilities as the Company shall
deem appropriate.
(b) During the Interim Period, the Company shall reimburse ▇▇. ▇▇▇▇▇▇ for
all reasonable and necessary business expenses incurred by him in furtherance of
his duties under this Agreement, and consistent with the present practices of
the Company. During the Consulting Period, the Company shall reimburse ▇▇.
▇▇▇▇▇▇ for any expenses reasonably and necessarily incurred by him in carrying
out any services specifically requested of ▇▇. ▇▇▇▇▇▇ by the president or chief
executive officer of the Company.
(c) This Agreement does not modify or cancel the terms and provisions of
any options (collectively the "Stock Options") previously awarded ▇▇. ▇▇▇▇▇▇ for
the purchase of common stock of the Company, and such options shall remain in
full force and effect without modification or amendment. The parties acknowledge
and agree that ▇▇. ▇▇▇▇▇▇' employment by the Company shall continue through and
including
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the termination of the Consulting Period, and that such termination date, except
in the event of ▇▇. ▇▇▇▇▇▇' death, will be the effective date for the
termination of ▇▇. ▇▇▇▇▇▇' employment for purposes of the Stock Options, and
that the termination of ▇▇. ▇▇▇▇▇▇' officership shall not adversely affect his
right to stock options.
(d) ▇▇. ▇▇▇▇▇▇ covenants and agrees that when requested so to do by the
Company, ▇▇. ▇▇▇▇▇▇ shall deliver to the Company or its designee (i) all keys to
the Company's offices, (ii) all Company credit cards in his possession, (iii)
any Company files, records or equipment kept or maintained by him in his office
or elsewhere (including all copies thereof), and (iv) all equipment of the
Company except as otherwise provided in this Agreement. ▇▇. ▇▇▇▇▇▇ represents
that as of the date of this Agreement, he has not, and agrees that he will not,
make any claim under workers' compensation insurance with respect to ▇▇. ▇▇▇▇▇▇'
period of employment at the Company through the date of this Agreement.
9. Releases.
(a) In consideration of the covenants of the Company contained in this
Agreement, ▇▇. ▇▇▇▇▇▇ hereby irrevocably and unconditionally releases, waives,
remises, forever discharges and agrees not to ▇▇▇ the Company and/or any and all
parent companies, divisions, subsidiaries, affiliates and other related entities
of the Company, as well as each of the Company's past, present and future
owners, directors, officers, employees, and the predecessors, successors and
assigns of each of them in their personal or corporate capacities, and all of
their attorneys (collectively, the "Released Parties"), from and with respect to
any and all liabilities, actions, claims, obligations, damages, causes of
action, contracts, accounts, agreements and demands of any nature whatsoever
(which accrued prior to the date hereof) that ▇▇. ▇▇▇▇▇▇ has, may have or may
claim to have against any of the Released Parties, whether known or unknown,
liquidated or unliquidated, in law or in equity, whether arising under any
local, state or federal constitutions, laws, rules or regulations, or under the
common law or statutory law of the United States prohibiting employment
discrimination based on race, color, sex, religion, handicap disability,
national origin or any other protected category or characteristic, including the
Civil Rights Act of 1964, the Civil Rights Act of 1986 or 1871, the National
Labor Relations Act or any other federal, state or local human rights, civil
rights or employment discrimination statute, including any claim arising under
the AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, as amended ("ADEA"), any rules
or regulations arising under such laws, and any and all claims (which accrued
prior to the date hereof) relating to ▇▇. ▇▇▇▇▇▇' employment or termination
thereof, including, but not limited to, any claims under the doctrines of
defamation, libel, slander, invasion of privacy, interference with contractual
relations, or implied contracts arising from employee handbooks, policies,
manuals or statements or procedure and wrongful discharge, it being the
intention of the Company and ▇▇. ▇▇▇▇▇▇ to make this release as broad and as
general as the law permits to include in addition to the foregoing all possible
claims (which accrued prior to the date hereof) which arose or might arise out
of contract or tort under state or federal law.
(b) Nothing contained in Subsection (a) of this Section 9 shall restrict or
otherwise impair in any manner the rights or obligations of any parties arising
under and by virtue of (i) the Employment Agreement, as amended by this
Agreement, (ii) this Agreement, (iii) the Stock Options, or (iv) any amendment
or modification of any of the foregoing.
10. Disclosure.
(a) ▇▇. ▇▇▇▇▇▇ SHOULD CAREFULLY READ AND UNDERSTAND THE TERMS, CONDITIONS
AND EFFECTS OF THIS AGREEMENT. THIS IS A LEGAL DOCUMENT, AND ▇▇. ▇▇▇▇▇▇ IS
ADVISED THAT HE SHOULD CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT.
(b) PURSUANT TO THE TERMS OF THE ADEA, ▇▇. ▇▇▇▇▇▇ IS ADVISED TO CONSIDER
THIS AGREEMENT FOR A PERIOD OF AT LEAST TWENTY-ONE (21) DAYS AFTER THE DATE OF
RECEIPT BEFORE ▇▇. ▇▇▇▇▇▇ EXECUTES THIS AGREEMENT. AFTER ▇▇. ▇▇▇▇▇▇ SIGNS THIS
AGREEMENT AND RETURNS IT TO THE COMPANY, ▇▇. ▇▇▇▇▇▇ HAS SEVEN (7) CALENDAR DAYS
WITHIN WHICH TO NOTIFY THE COMPANY THAT ▇▇. ▇▇▇▇▇▇ HAS DECIDED TO WITHDRAW HIS
ACCEPTANCE OF THIS
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AGREEMENT. THIS AGREEMENT (OTHER THAN SECTION 1 WHICH IS EFFECTIVE) WILL NOT
BECOME EFFECTIVE OR ENFORCEABLE AND NO PAYMENTS WILL BE MADE HEREUNDER UNTIL THE
END OF THE SEVEN (7) DAY REVOCATION PERIOD, AT WHICH TIME THE AGREEMENT SHALL
BECOME EFFECTIVE AND ENFORCEABLE.
11. Miscellaneous.
(a) All capitalized terms which are not defined herein shall have the
meanings set forth in the Employment Agreement.
(b) Each party agrees that he or it will refrain from any communication to
third parties which denigrates, disparages or criticizes any other party hereto.
(c) This Agreement and all the terms, provisions and conditions hereof
shall be binding upon and inure to the benefit of and be enforceable by the
heirs and personal representatives of ▇▇. ▇▇▇▇▇▇, and by the purchasers,
successors, heirs, merged entities and assigns of the Company.
(d) The Company and ▇▇. ▇▇▇▇▇▇ represent that, as of the date of execution
and delivery of this Agreement by each of them, no breach of the Employment
Agreement, as amended by this Agreement, has occurred which is within the actual
knowledge of the parties so representing.
(e) The Company agrees that should ▇▇. ▇▇▇▇▇▇ be named as a party defendant
in any action concerning his services with the Company (including his services
through the conclusion of the Consulting Period), ▇▇. ▇▇▇▇▇▇ shall be entitled
to be indemnified to the same extent as provided in the Company's Articles of
Incorporation and By-Laws as amended through the date of this Agreement.
SSE TELECOM, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
SSE TECHNOLOGIES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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