CONCURRENT COMPUTER CORPORATION
EXHIBIT 10.1(A)
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
the 17th day of November, 1998 by and between CONCURRENT COMPUTER CORPORATION, a
Delaware corporation ("Company"), and XXXXX X. XXXXXXXXXX ("Employee").
WHEREAS, the Company, through its Board of Directors, desires to retain the
services of Employee, and Employee desires to be retained by the Company, on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee hereby
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accepts employment, as President, Video-On-Demand Division of the Company upon
the terms of and subject to this Agreement.
2. TERM. The term ("Term") of this Agreement shall commence and this
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Agreement shall become effective on November 17, 1998, and shall continue until
otherwise terminated by either party at any time in accordance with the terms
hereof.
3. DUTIES. During his employment hereunder from the date hereof through
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December 31, 1998, Employee shall perform such duties as shall be assigned to
Employee by the President and Chief Executive Officer of the Company on a
part-time basis. Commencing January 1, 1999 through December 31, 1999, Employee
shall serve as the President, Video-On-Demand Division of the Company. Employee
shall have general and active charge of the business and affairs of the
Video-On-Demand (VOD) Division and, in such capacity, shall have responsibility
for the day-to-day operations of the VOD Division, subject to the authority and
control of the President and Chief Executive Officer of the Company. Commencing
January 1, 2000, provided that the Company shall have disposed of its real-time
computer business, Employee shall serve as the President and Chief Executive
Officer of the Company, and the Company shall take such actions as necessary to
cause his nomination as a member of the Board of Directors of the Company. In
such capacity, Employee shall have general and active charge of the business and
affairs of the Company, and responsibility for the day-to-day operations of the
Company, subject to the authority and control of the Board of Directors of the
Company. Throughout the term of employment hereunder, the Employee shall devote
his full time and undivided attention during normal business hours to the
business and affairs of the Company, as appropriate to his duties and
responsibilities hereunder, except for reasonable vacations and illness or other
disability, but nothing in this Agreement shall preclude the Employee from
devoting reasonable periods required for serving as a director or member of any
advisory committee of not more than two (at any time) "for profit" organizations
involving no conflict of interest with the interests of the Company (subject to
approval by the Board of Directors, which approval shall not be unreasonably
withheld), or from engaging in charitable and community activities, or from
managing his personal investments, provided such activities do not materially
interfere with the performance of his duties and responsibilities under this
Agreement.
4. COMPENSATION.
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a. Salary: Employee shall be paid an initial salary of $250,000 per
year, payable in equal installments not less than monthly. Commencing January 1,
2000, Employee shall be paid a salary of $280,000 per year payable in equal
installments not less than monthly. The Employee's salary shall be reviewed at
least annually.
b. Stock Option/Bonus: In addition to salary, Employee shall be
entitled to participate in the Company's Stock Option Plan (the "Stock Option
Plan") and Employee shall be initially granted, subject to the approval of the
Company's shareholders of an amendment to the Stock Option Plan providing for,
among other things, an increase in the share authorization thereunder, an option
to purchase 1,000,000 shares of common stock of the Company (such number to be
subject to adjustment as provided in section 5, paragraph 3, of the Stock Option
Plan). The per share exercise price of the option shall be the fair market value
of the Company's common stock as of the date of grant ($2.75), and the option
shall vest in three equal annual installments over a three-year period. The
Employee shall be additionally granted a long-term option to purchase up to
250,000 shares of common stock of the Company, at an exercise price equal to the
fair market value of a share of common stock as of the date of grant ($2.75),
and the option shall vest in its entirety on November 17, 2001. Further,
Employee shall be provided with an annual bonus opportunity with an initial
target bonus for Employee of $150,000, representing 60% of Employee's annual
salary as set forth in Paragraph 4.a., above (hereafter the "Executive Bonus
Plan"), the actual amount to be paid depending upon the degree of achievement of
various objectives. Commencing January 1, 2000, Employee shall be provided with
an annual bonus opportunity of 65% of Employee's annual salary as set forth in
Paragraph 4.a above, the actual amount to be paid depending upon the degree of
achievement of various objectives. The objectives for each year and other terms
and conditions of the bonus opportunity shall be established by the Board of
Directors or a committee thereof and shall be reasonably consistent with the
business plan of the Company for such year, or portion thereof, established in
advance. The target bonus opportunity may be increased to no more than an
additional 100% for superior performance as defined and determined under the
Executive Bonus Plan.
c. Insurance: During his employment hereunder, Employee shall be
entitled to participate in such health, life, disability and other insurance
programs, if any, that the Company may offer to other key executive employees of
the Company from time to time.
d. Other Benefits: During his employment hereunder, Employee shall be
entitled to such other benefits, if any, that the Company may offer to other key
executive employees of the Company from time to time. Certain other benefits are
described on Schedule A hereto. In addition, the Company and Employee shall
enter into an Indemnification Agreement in the form the Company may enter into
with other key executive employees of the Company from time to time.
e. Vacation: Employee shall be entitled to four weeks vacation leave
(in addition to holidays) in each calendar year during the Term, or such
additional amount as may be set forth in the vacation policy that the Company
shall establish from time to time.
f. Expense Reimbursement: Employee shall, upon submission of
appropriate supporting documentation, be entitled to reimbursement of reasonable
out-of-pocket expenses incurred in the performance of his duties hereunder in
accordance with policies established by the Company. Such expenses shall
include, without limitation, reasonable entertainment expenses, gasoline and
toll expenses and cellular phone use charges, if such charges are directly
related to the business of the Company.
5. GROUNDS FOR TERMINATION. The Company may terminate this Agreement
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for Cause. As used herein, "Cause" shall mean any of the following: (a) the
Employee has committed a willful serious act against the Company intended to
enrich himself at the expense of the Company, such as embezzlement, or has been
convicted of a felony involving moral turpitude; or (b) Employee has (i)
willfully and grossly neglected his duties hereunder, or (ii) intentionally
failed to observe specific directives or policies of the President and Chief
Executive Officer or the Board of Directors, which directives or policies were
consistent with his positions, duties and responsibilities hereunder, and which
failure had, or continuing failure will have, a material adverse effect on the
Company. Prior to any such termination, Employee shall be given written notice
by the Board of Directors that the Company intends to terminate his employment
for Cause under this Section 5, which written notice shall specify the
particular acts or omissions on the basis of which the Company intends to so
terminate Employee's employment, and Employee (with his counsel, if he so
chooses) shall be given the opportunity, within 15 days of his receipt of such
notice, to have a meeting with the Board of Directors to discuss such acts or
omissions and be given reasonable time to remedy the situation. In the event of
such termination, the Employee shall be promptly furnished written specification
of the basis therefor in reasonable detail.
6. TERMINATION BY EMPLOYEE. Employee may terminate this Agreement at any
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time with Good Reason. "Good Reason" shall exist if:
a. the Company demotes or otherwise elects or appoints the
Employee to lesser offices than set forth in Section 3, or fails to elect or
appoint him to such;
b. the Company causes a material change in the nature or scope of
the authorities, powers, functions, duties or responsibilities attached to the
Employee's positions as described in Section 3;
c. the Company causes Employee to relocate more than 50 miles from
Atlanta, Georgia;
d. the Company decreases the Employee's compensation below the levels
provided for by the terms of Section 4 (taking into account increases made from
time to time in accordance with Section 4);
e. the Company materially reduces the Employee's benefits under any
employee benefit plan, program or arrangement of the Company (other than a
change that affects all employees similarly situated) from the level in effect
upon the Employee's commencement or participation;
f. the Company commits any other material breach of the provisions of
this Agreement (except those set forth in Paragraph 4.a) and employee provides
at least 15 days' prior written notice to at least two members of the Company's
Board of Directors of the existence of such breach and his intention to
terminate this Agreement (no such termination shall be effective if such breach
is cured during such period);
g. the Company fails to comply with the provisions of Paragraph 4.a.
for an uninterrupted 10 day period; or
h. in the event the Company fails to dispose of its real-time computer
business by January 1, 2000, the Company fails to complete a public offering in
respect of the Video-On-Demand Division by June 2000.
7. PAYMENT AND OTHER PROVISIONS UPON TERMINATION FOR CAUSE OR
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EMPLOYEE CONVENIENCE.
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a. In the event Employee's employment with the Company (including its
subsidiaries) is terminated by the Company for Cause as provided in
Paragraph 5 then, on or before Employee's last day of employment with the
Company, the provisions of this Paragraph 7.a shall apply. These same
provisions shall apply if the Employee terminates his employment other than
in accordance with the provisions of Paragraph 6 hereof.
i. Compensation: The Company shall pay in a lump sum to
employee such amount of compensation due Employee for services rendered to the
Company, as well as compensation for unused vacation time, as has accrued but
remains unpaid. Any and all other rights to compensation of any kind granted to
Employee under this Agreement shall terminate as of the date of termination,
except as may be otherwise required by statute.
ii. Noncompetition/Nonsolicitation Period: The provisions of
Paragraphs 13 and 14 shall continue to apply with respect to Employee for a
period of one year following the date of termination.
b. In the event Employee's employment with the Company (including its
subsidiaries) is terminated by the Company for any reason other than for Cause
as provided in Paragraph 5 and other than as a consequence of Employee's death,
disability, or normal retirement under the Company's retirement plans and
practices, then the following provisions apply. These same provisions shall
apply if Employee terminates his employment in accordance with the provisions of
Paragraph 6 hereof.
i. Salary and Bonus Payments: On or before Employee's last day of
employment with the Company, the Company shall promptly pay in a lump sum to
Employee as compensation for services rendered to the Company a cash amount
equal to twice the amount of Employee's annual base salary and twice the target
bonus under the Executive Bonus Plan as in effect immediately prior to his date
of termination. At the election of the Company, the cash amount referred to in
this subparagraph 7.b.i may be paid to Employee in periodic installments in
accordance with the normal salary payment procedures of the Company.
ii. Vesting of Options and Rights: Notwithstanding the vesting
period provided for in the Stock Option Plan and related stock option agreements
between the Company and Employee for stock options ("options") and stock
appreciation rights ("rights") granted Employee by the Company, at least
one-third of the options and stock appreciation rights shall be exercisable upon
termination of employment. In addition, Employee shall have the right to
exercise such options and rights for the shorter of (a) one year following his
termination of employment or (b) with respect to each option, the remainder of
the period of exercisability under the terms of the appropriate documents that
grant such options.
iii. Benefit Plan Coverage: The Company shall maintain in full
force and effect for Employee and his dependents for two years after the date of
termination, all life, health, accident, and disability benefit plans and other
similar employee benefit plans, programs and arrangements in which Employee or
his dependents were entitled to participate immediately prior to the date of
termination, in such amounts as were in effect immediately prior to the date of
termination, provided that such continued participation is possible under the
general terms and provisions of such benefit plans, programs and arrangements.
In the event that participation in any benefit plan, program or arrangement
described above is barred, or any such benefit plan, program or arrangement is
discontinued or the benefits thereunder materially reduced, the Company shall
arrange to provide Employee and his dependents for two years after the date of
termination with benefits substantially similar to those that they were entitled
to receive under such benefit plans, programs and arrangements immediately prior
to the date of termination. If immediately prior to the date of termination the
Company provided Employee with any club memberships, Employee shall be entitled
to continue such memberships at his sole expense. Notwithstanding any time
period for continued benefits stated in this subparagraph 7.b.iii, all benefits
in this subparagraph 7.b.iii will terminate on the date that Employee becomes an
employee of another employer and eligible to participate in the employee benefit
plans of such other employer. To the extent that Employee was required to
contribute amounts for the benefits described in this subparagraph 7.b.iii prior
to his termination, he shall continue to contribute such amounts for such time
as these benefits continue in effect after termination.
iv. Savings and Other Plans: Except as otherwise more
specifically provided herein or under the terms of the respective plans relating
to termination of employment, Employee's active participation in any applicable
savings, retirement, profit sharing or supplemental employment retirement plans
or any deferred compensation or similar plan of the Company or any of its
subsidiaries shall continue only through the last day of his employment. All
other provisions, including any distribution and/or vested rights under such
plans, shall be governed by the terms of those respective plans.
v. Noncompetition/Nonsolicitation Period: The provisions of
Paragraph 13 and 14 shall continue, beyond the time periods set forth in such
paragraphs, to apply with respect to employee for the shorter of (x) twenty-four
(24) months following the date of termination or (y) until such time as the
Company has failed to comply with the provisions of subparagraph 7.b.i for an
uninterrupted 10-day period and such failure is not cured within 15 days after
written notice of such failure is delivered to at least two non-employee
directors of the Company, provided, that in such circumstances, Employee shall
remain entitled to exercise his rights under this Agreement.
c. The provisions of this Paragraph 7 shall apply if Employee's
employment is terminated prior to a Change of Control or more than three years
after the occurrence of a Change of Control (as defined in Paragraph 8.c). From
the occurrence of any Change of Control until the third anniversary of such
Change of Control, the provisions of Paragraph 8 shall apply in place of this
Paragraph 7; provided, however, that in the event Employee terminates his
employment with the Company after a Change in Control other than in accordance
with the provisions of Paragraph 6 hereof, then the provisions of Paragraph 8
hereof shall not apply and the provisions of Paragraph 7.a. shall apply.
Termination upon death, disability and retirement are covered by Paragraphs 9,
10 and 11, respectively.
8. PAYMENT AND OTHER PROVISIONS FOR TERMINATION OTHER THAN FOR CAUSE.
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a. Salary, Performance Award and Bonus Payments: In the event
Employee's employment with the Company is terminated (other than as a
consequence of his death or disability, or of his normal retirement under the
Company's retirement plans and practices) either (i) by the Company for any
reason other than for Cause in accordance with Paragraph 5, or (ii) by Employee
in accordance with the provisions of Paragraph 6 hereof, then Employee shall be
entitled to receive from the Company, the following:
i. Base Salary: In the event of any such termination within the
first year of employment hereunder, Employee's annual base salary as in effect
at the date of termination, multiplied by two,
shall be paid on the date of termination; and in the event of any such
termination thereafter, Employee's annual base salary as in effect at the date
of termination, multiplied by three, shall be paid on the date of termination;
ii. Target bonus: In the event of any such termination within the
first year of employment hereunder, the amount of the Employee's target bonus
under the Executive Bonus Plan for the fiscal year in which the date of
termination occurs, multiplied by two, shall be paid on the date of termination;
and in the event of termination thereafter, the amount of Employee's target
bonus under the Executive Bonus Plan for the fiscal year in which the date of
termination occurs, multiplied by three, shall be paid on the date of
termination; and
iii. Other Benefits: All benefits under Paragraphs 7.b.ii,
7.b.iii and 7.b.iv shall be extended to Employee as described in such
paragraphs, except that notwithstanding the vesting period provided for in the
Stock Option Plan and any related stock option agreements between the Company
and Employee for stock options ("options") and stock appreciation rights
("rights") granted employee by the Company, all options and rights shall be
fully vested and exercisable upon termination of employment and the period of
exercise of options and rights described in the last sentence of Paragraph
7.b.ii shall be the shorter of (a) three years following his termination of
employment or (b) with respect to each option, the remainder of the period of
exercisability under the terms of the appropriate documents that grant such
options.
b. Noncompetition/Nonsolicitation Period: In the event of a
termination under the circumstances described in Paragraph 8.a, the provision of
Paragraphs 13 and 14 shall be without force and effect and shall not apply to
Employee.
c. For purposes of this Agreement, the term "Change of Control" shall
mean:
i. The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Rule 13d-3 promulgated under
the Exchange Act or any successor provision)(any of the foregoing described in
this Paragraph 8.c.i. hereafter a "Person") of 33% or more of either (a) the
then outstanding shares of Capital Stock of the Company (the "Outstanding
Capital Stock") or (b) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Voting Securities"), provided, however, that any acquisition by
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(x) the Company or any of it subsidiaries, or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any of its subsidiaries
or (y) any Person that is eligible, pursuant to Rule 13d-1(b) under the Exchange
Act, to file a statement on Schedule 13D with respect to its beneficial
ownership of Voting Securities, whether or not such Person shall have filed a
statement on Schedule 13G, unless such Person shall have filed a statement on
Schedule 13D with respect to beneficial ownership of 33% or more of the Voting
Securities or (z) any corporation with respect to which, following such
acquisition, more than 60% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Capital Stock and Voting Securities
immediately prior to such acquisition in substantially the same proportion as
their ownership, immediately prior to such acquisition, of the Outstanding
Capital Stock and Voting Securities, as the case may be, shall not constitute a
Change of Control; or
ii. Individuals who, as of November 17, 1998, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a director
subsequent to November 17, 1998 whose election or nomination for election by the
Company's shareholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
Directors of the Company (as such terms are used in Rule 14a-11 of Regulation
14A, or any successor section, promulgated under the Exchange Act); or
iii. Approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business Combination"), in each
case, with respect to which all or substantially all holders of the Outstanding
Capital Stock and Voting Securities immediately prior to such Business
Combination do not, following such Business Combination, beneficially own,
directly or indirectly, more than 60% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from the Business Combination; or
iv. (a) a complete liquidation or dissolution of the Company or
(b) a sale or other disposition of all or substantially all of the assets of the
Company other than to a corporation with respect to which, following such sale
or disposition, more than 60% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors is then owned
beneficially, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Capital Stock and Voting Securities immediately prior to such sale
or disposition in substantially the same proportion as their ownership of the
Outstanding Capital Stock and Voting Securities, as the case may be, immediately
prior to such sale or disposition.
d. For purposes of this Agreement, the term "Change of Control" shall
not mean a sale or other disposition of all or substantially all of the assets
of the Real-Time Division of the Company within the first year of the Term of
this Agreement.
9. TERMINATION BY REASON OF DEATH. If Employee shall die while
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employed by the Company both prior to termination of employment and during the
effective term of this Agreement, all Employee's rights under this Agreement
shall terminate with the payment of such amounts of annual base salary as have
accrued but remain unpaid and prorated amount of targeted bonus under the
Executive Bonus Plan through the month in which his death occurs, plus six
additional months of the fixed salary and targeted bonus. All benefits under
Paragraphs 7.b.ii and 7.b.iv shall be extended to Employee's estate as described
in such paragraphs. In addition, Employee's eligible dependents shall receive
continued benefit plan coverage under Paragraph 7.b.iii for six months from the
date of Employee's death.
10. TERMINATION BY DISABILITY. Employee's employment hereunder may be
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terminated by the Company for disability. In such event, all Employee's rights
under this Agreement shall terminate with the payment of such amounts of annual
base salary as have accrued but remain unpaid as of the thirtieth (30th) day
after such notice is given except that all benefits under Paragraphs 7.b.ii,
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7.b.iii and 7.b.iv shall be extended to Employee as described in such
paragraphs, provided, however, that with respect to Paragraph 7.b.iii, the
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period for continued benefit plan coverage shall be limited to six months from
the date of termination. In addition, the noncompetition and nonsolicitation
provisions of Paragraphs 13 and 14 shall continue to apply for a period of six
months from the date of termination for disability. For purposes of this
Agreement, "disability" is defined to mean that, as a result of Employee's
incapacity due to physical or mental illness:
a. Employee shall have been absent from his duties as an officer of
the Company on a substantially full-time basis for six (6) consecutive months;
and
b. Within thirty (30) days after the Company notifies Employee in
writing that it intends to replace him, Employee shall not have returned to the
performance of his duties as an officer for the Company on a full-time basis.
Such notice may be given by the Company at any time after Employee has been
absent for a total of four consecutive months.
11. RETIREMENT. Employee shall be entitle to participate in the
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Company's Retirement Savings Plan and any other retirement plan hereafter made
available to senior executive officers of the Company in accordance with the
provisions thereof as in effect from time to time.
12. INDEMNIFICATION. If litigation shall be brought to enforce or
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interpret any provision contained herein, the non-prevailing party shall
indemnify the prevailing party for reasonable attorneys' fees (including those
for negotiations, trial and appeals) and disbursements incurred by the
prevailing party in such litigation, and hereby agrees to pay prejudgment
interest on any money judgment obtained by the prevailing party calculated at
the generally prevailing Nations Bank of Florida, N.A. (or any successor
thereto) base rate of interest charge to its commercial customers in effect from
time to time from the date that payments(s) to him should have been made under
this Agreement.
13. NONCOMPETITION.
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a. At all times during Employee's employment hereunder, and for such
additional periods as may otherwise be set forth in this Agreement in reference
to this Paragraph 13, Employee shall not, directly or indirectly, engage in any
business, enterprise or employment, whether as owner, operator, shareholder,
director, partner, creditor, consultant, agent or any capacity whatsoever that
manufactures products designed to compete directly with products of the Company
or markets such products anywhere in the world where the Company (i) is engaged
in business or (ii) has evidenced an intention of engaging in business. Employee
acknowledges that he has read the foregoing and agrees that the nature of the
geographical restrictions are reasonable given the international nature of the
Company's business. In the event that these geographical or temporal
restrictions are judicially determined to be unreasonable, the parties agree
that the restrictions shall be judicially reformed to the maximum restrictions
which are reasonable.
b. Notwithstanding the provisions of the preceding Subparagraph, the
Employee may accept employment with a company that would be deemed to be a
competitor of the Company as described in the previous subparagraph
("Competitor"), so long as (i) the Competitor has had annual revenues of at
least $1 billion in each of the prior two fiscal years, (ii) the Competitor's
revenues for products and maintenance in direct competition with the Company do
not exceed 50% of its total revenues, and (iii) the Employee's responsibilities
are solely for divisions or subsidiaries of the Competitor that do not compete
with the Company.
14. NONSOLICITATION OF EMPLOYEES AND CUSTOMERS. At all times during the
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Employee's employment hereunder, and for such additional periods as may
otherwise be set forth in this Agreement, in reference to this Paragraph 14, the
Employee shall not, directly or indirectly, for himself or for any other
person, firm, corporation, partnership, association or other entity (a) attempt
to employ, employ or enter into any contractual arrangement with any employee or
former employee of the Company, its affiliates, subsidiaries or predecessors in
interest, unless such employee or former employee has not been employed by the
Company, its affiliates, subsidiaries or predecessors in interest, during the
six months prior to the Employee's attempt to employ him, or (b) call on or
solicit any of the actual or targeted prospective customers of the Company or
its affiliates, subsidiaries or predecessors in interest with respect to any
matters related to or competitive with the business of the Company.
15. CONFIDENTIALITY.
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a. Nondisclosure: The Employee acknowledges and agrees that the
Confidential Information (as defined below) is a valuable, special and unique
asset of the Company's business. Accordingly, except in connection with the
performance of his duties hereunder, the Employee shall not at any time during
or subsequent to the term of his employment hereunder disclose, directly or
indirectly, to any person, firm, corporation, partnership, association or other
entity any proprietary or confidential information relating to the Company or
any information concerning the Company's financial condition or prospects, the
Company's customers, the design, development, manufacture, marketing or sale of
the Company's products or the Company's methods of operating its business
(collectively, "Confidential Information"). Confidential Information shall not
include information which, at the time of disclosure, is known or available to
the general public by publications or otherwise through no act or failure to act
on the part of Employee.
b. Return of Confidential Information: Upon termination of Employee's
employment, for whatever reason and whether voluntary or involuntary, or at any
time at the request of the Company, Employee shall promptly return all
Confidential Information in the possession or under the control of Employee to
the Company and shall not retain any copies or other reproductions or extracts
thereof. Employee shall at any time at the request of the Company destroy or
have destroyed all memoranda, notes, reports, and documents, whether in "hard
copy" form or as stored on magnetic or other media, and all copies and other
reproductions and extracts thereof, prepared by Employee and shall provide the
Company with a certificate that the foregoing materials have in fact been
returned or destroyed.
c. Books and Records: All books, records and accounts whether prepared
by Employee or otherwise coming into Employee's possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company upon termination of Employee's employment hereunder or upon the
Company's request at any time.
16. INJUNCTION/SPECIFIC PERFORMANCE/SETOFF. Employee acknowledges that
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a breach of any of the provisions of Paragraphs 13, 14, or 15 hereof would in
immediate and irreparable injury to the Company which cannot be adequately or
result reasonably compensated at law. Therefore, Employee agrees that the
Company shall be entitled, if any such breach shall occur or be threatened or
attempted, to a decree of specific performance and to a temporary and permanent
injunction, without the posting of a bond, enjoining and restraining such breach
by Employee or his agents, either directly or indirectly, and that such right to
injunction shall be cumulative to whatever other remedies for actual damages to
which the Company is entitled. Employee further agrees that the Company may set
off against or recoup from any amounts due under this Agreement to the extent of
any losses incurred by the Company as a result of any breach by Employee of the
provisions of Paragraphs 13, 14 or 15 hereof.
17. SEVERABILITY. Any provision in this Agreement that is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, by ineffective
only to the extent of such prohibition or unenforceability without
invalidating or affecting the remaining provisions hereof, and any such
prohibition or enenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
18. SUCCESSORS: This Agreement shall be binding upon Employee and inure
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to the benefit of the Company and any permitted successor of the Company.
Neither this Agreement nor any rights arising hereunder may be assigned or
pledged by Employee or anyone claiming through Employee; or by the Company,
except to any corporation which is the successor in interest to the Company by
reason of a merger, consolidation or sale of substantially all of the assets of
the Company.
The foregoing sentence shall not be deemed to have any effect upon the
rights of Employee upon a Change of Control.
19. CONTROLLING LAW: This Agreement shall in all respects be governed
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by, and construed in accordance with, the laws of the State of Georgia.
20. NOTICES: Any notice required or permitted to be given hereunder
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shall be written and sent by registered or certified mail, telecommunicated or
hand delivered at the address set forth herein or to any other address of which
notice is given:
TO THE COMPANY: CONCURRENT COMPUTER CORPORATION
0000 XXXX XXXXXXX XXXXX XXXX
XX. XXXXXXXXXX, XXXXXXX 00000
TO THE EMPLOYEE: XXXXX X. XXXXXXXXXX
605 Buttercup Trace
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XXXXXXXXXX, XXXXXXX 00000
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
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between the parties hereto on the subject matter hereof and may not be modified
without the written agreement of both parties hereto.
22. WAIVER. A waiver by any party of any of the terms and conditions
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hereof shall not be construed as a general waiver by such party.
23. COUNTERPARTS. This Agreement may be executed in counterparts,
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each of which shall be deemed an original and both of which together shall
constitute a single agreement.
24. INTERPRETATION. In the event of a conflict between the provisions
--------------
of this Agreement and any other
agreement or document defining rights and duties of Employee or the Company upon
Employee's termination, the rights and duties set forth in this Agreement shall
control.
25. CERTAIN LIMITATIONS ON REMEDIES. Paragraph 7.b provides that
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certain payments and other benefits shall be received by Employee upon the
termination of Employee by the Company other than for Cause and states that
these same provisions shall apply if Employee terminates his employment in
accordance with the provisions of paragraph 6 hereof. It is the intention of
this Agreement that if the Company terminates Employee other than for Cause (and
other than as a consequence of Employee's death, disability or normal
retirement) or if Employee terminates his employment in accordance with the
provisions of paragraph 6 hereof, then the payments and other benefits set forth
in Paragraph 7.b shall constitute the sole and exclusive remedies of Employee.
This Paragraph 25 shall have no effect upon the provisions of Paragraph 8 of
this Agreement.
IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
CONCURRENT COMPUTER CORPORATION EMPLOYEE
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/s/ E. Xxxxxxxx Xxxxxx /s/ Xxxxx X. Xxxxxxxxxx
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E. Xxxxxxxx Xxxxxx Xxxxx X. Xxxxxxxxxx
Chairman, President and Chief Executive Officer
SCHEDULE A
OTHER BENEFITS
1. Use of golf club membership maintained by the Company at a private
country club to be designated by Employee.
2. Commencing January 1,2000, first class tickets on airlines when
travelling on Company business.
CONCURRENT COMPUTER CORPORATION
Exhibit 10.1(b)
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT (the "Amendment") to that certain Employment Agreement dated
as of March 25, 1996 (the "Agreement") is made and entered into as of the 1st
day of January, 1999, by and between Concurrent Computer Corporation (the
"Company") and E. Xxxxxxxx Xxxxxx (the "Employee").
WHEREAS, in an effort to provide for a smooth succession of the President
and Chief Executive Officer of the Company, the Company, through its Board of
Directors, plans to offer employment in said positions to Xxxxx X. Xxxxxxxxxx to
be effective January 1, 2000, provided that the Company disposes of its
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real-time business;
WHEREAS, the Company, through its Board of Directors, and the Employee,
desire to amend the terms and conditions set forth in the Agreement to define
Employee's position and responsibilities and compensation in respect thereof for
services to be rendered following the disposition of the real-time business and
the election of Xx. Xxxxxxxxxx to the positions of President and Chief Executive
Officer (the "Succession");
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. AMENDMENTS
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a. Paragraph 1 of the Agreement is amended by adding the following
sentence as the ultimate sentence thereof:
Effective upon the Succession, but no earlier than January 1, 2000,
Employee shall cease to serve as President and Chief Executive Officer, but
shall continue as an employee of the Company and shall serve as Chairman of
the Board of the Company.
b. Paragraph 3 of the Agreement is amended to read in its entirety as
follows:
3. DUTIES.
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a. During his employment hereunder (unless and until Subparagraph b.
hereof becomes applicable), Employee shall serve as the Chairman of the Board,
President and Chief Executive Officer of the Company and the Company will take
such actions as necessary to cause his nomination as a member of the Board of
Directors of the Company. Employee shall have general and active charge of the
business and affairs of the Company and, in such capacity, shall have
responsibility for the day-to-day operations of the Company, subject to the
authority and control of the Board of Directors of the Company. Employee shall
report directly to the authority and control of the Board of Directors of the
Company. Throughout the term of employment under this subparagraph, the Employee
shall devote his full time and undivided attention during normal business hours
to the business and affairs of the Company, as appropriate to his duties and
responsibilities hereunder, except for reasonable vacations and illness or other
disability, but nothing in this Agreement shall preclude the Employee from
devoting reasonable periods required for serving as a director or member of any
advisory committee of not more than two (at any time) "for profit" organizations
involving no conflict of interest with the interests of the Company (subject to
approval by the Board of Directors, which approval shall not be unreasonably
withheld), or from engaging in charitable and community activities, or from
managing his personal investments, provided such activities do not materially
interfere with the performance of his duties and responsibilities under this
Agreement.
b. Effective upon the Succession, but no earlier than January 1, 2000,
Employee shall serve as Chairman of the Board. Employee shall have the
responsibility for review of the operations of the Company working directly with
the President and Chief Executive Officer. His responsibilities shall include:
review of the Company's business plans on at least a monthly basis; management
of the investment portfolio of the Company; active involvement with the
Company's large shareholders and analysts; active involvement with all merger
and acquisition activity; active involvement with large customers; and such
other duties as shall be requested by the Board of Directors of the Company.
Employee shall report directly to the Board of Directors of the Company.
Throughout the term of employment under this subparagraph, the Employee shall
devote his full time and undivided attention during normal business hours for
three or four days per week to the business and affairs of the Company, as
appropriate to his duties and responsibilities hereunder, except for reasonable
vacations and illness or other disability, but nothing in this Agreement shall
preclude the Employee from devoting reasonable periods required for serving as a
director or member of any advisory committee of not more than four (at any time)
"for profit" organizations involving no conflict of interest with the interests
of the Company (subject to approval by the Board of Directors, which approval
shall not be unreasonably withheld), or from engaging in charitable and
community activities, or from managing his personal investments, provided such
activities do not materially interfere with the performance of his duties and
responsibilities under this Agreement.
c. Subparagraph 4.a. of the Agreement is amended to read in its
entirety as follows:
4. COMPENSATION.
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a. Salary: During his employment as President and Chief Executive
Officer of the Company, Employee shall be paid an initial salary of $300,000 per
year, payable in equal installments not less than monthly. Effective upon the
Succession, but no earlier than January 1, 2000, Employee shall be paid a salary
of $200,000 per year, payable in equal installments not less than monthly. The
Employee's salary shall be reviewed at least annually by the Board of Directors
or any Committee of the Board delegated the authority to review executive
compensation.
2. MISCELLANEOUS
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a. This Amendment shall be construed in accordance with the laws of
the State of Florida.
b. Except as amended hereby, the terms and conditions of the Agreement
shall remain in effect.
IN WITNESS WHEREOF, the Company and the Employee have caused this Amendment
to be executed as of the date first above written.
CONCURRENT COMPUTER CORPORATION EMPLOYEE
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ E. Xxxxxxxx Xxxxxx
------------------------- -------------------------
Xxxxxxx X. Xxxxxxx
Director
Chairman, Compensation Committee
