Exhibit 10.8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of this 26th day of March,
2002 between ENON MICROWAVE, INC., a Delaware corporation,
formerly, or to be formerly known as Vectronics Microwave Corp,
(hereinafter called the "Company"), with offices at 000X Xxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, and XXXXXX X. XXXXXXX, residing at
the address set forth on Schedule A (hereinafter called the
"Executive").
W I T N E S S E T H
WHEREAS, the Company manufactures and markets microwave
products; and
WHEREAS, the Company and the Executive desire to enter into
an agreement to memorialize their understandings with regard to
the employment of the Executive by the Company.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and promises contained herein, the parties hereby
agree as follows:
1. Employment Term. The Company hereby agrees to employ
the Executive and the Executive agrees to enter the employ of the
Company on the terms and conditions set forth below for a term
commencing on the date hereof (the "Commencement Date"), and
terminating two years from the date hereof unless sooner
terminated as herein provided (such term of this Agreement is
herein referred to as the "Term") or extended by mutual consent
of the parties hereto.
2. Duties. Subject to the authority, control and
direction of the Board of Directors of the Company or President
of the Company, the Executive shall be appointed General Manager
and Vice President of the Company, and the Executive will perform
such duties and services commensurate with his position as
General Manager and Vice President of the Company, including such
duties as may from time to time be assigned to him by the
President or the Board of Directors of the Company.
3. Time Requirements. The Executive agrees that he will
devote all of his business time and attention to the business
affairs of the Company and that during the period of such
employment the Executive will not, without the prior permission
of the President or the Board of Directors of the Company, engage
in any other business enterprise or enterprises which require
more than a nominal amount of the Executive's business time or
attention. The foregoing shall not prevent the purchase or
ownership by the Executive of investments or securities of
publicly-held companies representing less than 2% of any such
companies and any other business which is not competitive and
does not have any business relations with the Company or any
subsidiary of the Company, provided the time or attention devoted
by the Executive to such activities does not interfere with the
performance of his duties hereunder.
4. Compensation. For the full, prompt and faithful
performance of all of the duties and services to be performed by
Executive hereunder, the Company agrees to pay, and the Executive
agrees to accept, the amounts set forth below.
(a) As a base compensation, the Executive shall be paid
at a rate set forth on Schedule B per annum (the "Base Compensation"),
payable at such regular times and intervals as the Company
customarily pays its employees. Effective on each anniversary of
the Commencement Date commencing in 2003 that the Agreement is
effective, the President and the Board of Directors of Company
agrees to review the Executive's performance hereunder and, based
on such review, to grant to the Executive a salary increase in an
amount which, in the sole discretion of the Board of Directors of
the Company, is deemed appropriate.
(b) As incentive compensation, for each fiscal year
during the term of this Agreement, (such fiscal year beginning on
April 1st and ending on March 31st of the following year),
commencing on April 1, 2002, a bonus program will be established
for the Executive to earn up to an additional 20% of his Base
Compensation, of which it is anticipated 75% will be derived from
the performance of the Company and 25% will be derived from the
performance of Micronetics Wireless, Inc., the parent company of
the Company, which plan shall be jointly developed by the
Executive, the President and the Board of Directors.
(c) As additional compensation, the Company shall
grant to the Consultant a three year stock option pursuant to the
Company's Incentive Stock Option Plan for 5,000 shares of the
Company's Common Stock exercisable at the fair market value on
the date hereof.
(d) The Company shall provide the Executive with
health benefits on the same terms as provided to other employees
of the Company.
(e) The Company shall provide the Executive with an
automobile allowance of $500.00 per month for his business use of
an automobile.
(f) The compensation provided for herein shall be in
additional to any retirement, profit sharing, insurance
(including medical) or similar benefit which may at any time be
payable to the Executive pursuant to any plan or policy of the
Company relating to such benefits, which benefits shall be made
available to the Executive on the same basis as they are made
available to other similarly situated executives of the Company.
5. Vacation. The Executive shall be entitled to four weeks
of vacation per year during the Term, which shall be taken at
such time or times as shall be mutually determined by the Company
and the Executive.
6. Death. In the event of the death of the Executive
during the Term or any extension thereof, the employment of the
Executive hereunder shall terminate and come to an end on the
last day of the month following the death of the Executive. The
estate of the Executive (or such persons as the Executive shall
designate in writing) shall be entitled to receive, and the
Company agrees to pay, the Base Compensation of the Executive up
to the end of the month period in which such death occurs.
7. Disability. In the event that the Executive shall,
because of illness or incapacity, physical or mental, be unable
to perform the duties and services to be performed by him
hereunder for a consecutive period of six months, or nine months
during any twelve month period, the Company may terminate the
employment of the Executive hereunder after the expiration of
such period. The Executive shall be entitled to receive his Base
Compensation up to the date of such termination.
8. Administration; Expenses. The Executive shall report
to Xxxxxxx X. Xxxxx and the Board of Directors of the Company,
or to a person designated by the Board of Directors, at such
intervals as may be determined from time to time. The Executive
shall be reimbursed by the Company for all expenses reasonably
incurred by him on behalf of the Company in accordance with the
Company's standard policies with respect thereto.
9. Restrictive Covenants.
9.1 Inventions. Any program, discovery, process,
design, invention or improvement which the Executive makes or
develops during his employment by the Company, whether or not
during regular working hours or in connection with the Company's
business or research activities as then conducted or
contemplated, shall belong to the Company and shall be promptly
disclosed to the Company. During the Executive's employment and
for a period of two years thereafter, the Executive shall,
without additional compensation, execute and deliver to the
Company any instruments of transfer and take such other action as
the Company may request to carry out the provisions of this
Section 9.1, including without limitation, filing, at the
Company's expense, patent applications for anything covered by
this Section 9.1 and the prompt assignment of the same to the
Company.
9.2 Covenant Not to Compete. The Executive covenants
and agrees that for a period of two years following the
termination of his employment with the Company other than as a
result of a breach of this Agreement by the Company, termination
without cause or expiration of the Term he shall not directly or
indirectly compete with the Company in the microwave control
components marketplace or in any other business in which the
Company may at such time be engaged, nor induce any person
associated with or employed by the Company or any subsidiary of
the Company, to leave the employ of or terminate his association
with the Company, or any subsidiary of the Company, or solicit
the employment of any such person on his own behalf or on behalf
of any other business enterprise. In the event of termination of
this Agreement by virtue of a breach by the Company, termination
without cause or expiration of the Term, the aforesaid covenant
will be applicable for a period of one year from such event.
9.3 Nondisclosure. The Executive covenants
and agrees for a period of two years following the termination
of his employment with the Company, he will not, directly or
indirectly, during or after the term of employment disclose
to any person not authorized by the Company to receive or use
such information, except for the sole benefit of the Company,
any of the Company's confidential or proprietary data,
information, designs, styles, or techniques, including
customer lists. Notwithstanding the foregoing, this applies
solely to information that is not generally known to anyone
other than the Company, its Board of Directors or its employees.
9.4 If any term of this Article 9 is found by any
court having jurisdiction to be too broad, then and in that case,
such term shall nevertheless remain effective, but shall be
considered amended (as to the time or area or otherwise, as the
case may be) to a point considered by said court as reasonable,
and as so amended shall be fully enforceable.
9.5 In the event that the Executive shall violate any
provision of this Agreement (including but not limited to the
provisions of this Article 9) the Executive hereby consents to
the granting of a temporary or permanent injunction against him
by any court of competent jurisdiction prohibiting him from
violating any provision of this Agreement. In any proceeding for
an injunction, the Executive agrees that his ability to answer in
damages shall not be a bar or interposed as a defense to the
granting of such temporary or permanent injunction against the
Executive. The Executive further agrees that the Company will
not have an adequate remedy at law in the event of any breach by
Executive hereunder and that the Company will suffer irreparable
damage and injury if the Executive breaches any of the provisions
of this Agreement.
10. Termination By Company or by Executive. The Company
may terminate the Executive's employment without liability (other
than for payments accrued to the date of termination) if the
Executive's employment is terminated "for cause". The term "for
cause" shall, for the purposes of this Agreement, mean (i) a
material breach by the Executive of the provisions of this
Agreement, but only after the Company has given 10 days notice of
the breach to the Executive and the Executive has failed to cure
such breach within 20 days of receipt of such notice, (ii) the
commission by the Executive of a fraud against the Company or the
conviction of the Executive for aiding or abetting, or the
commission of, a felony or of a fraud or a crime involving moral
turpitude or a business crime, (iii) the knowing possession or
use of illegal drugs or prohibited substances, the excessive
drinking of alcoholic beverages which impairs the Executive's
ability to perform his duties hereunder, or (iv) being under the
influence of such drugs, substances or alcohol during the
Executive's hours of employment.
In the event of such termination for cause, Executive shall
be entitled to receive his Base Compensation up to the date of
such termination.
In the event the Executive intends to dispute the Company's
finding of just cause, he shall give written notice of such
intent to the Company within 14 days of receipt of written notice
of termination by the Company. In the event the Executive
provides such written notice to the Company, both parties agree
to settle the issue of whether the Company terminated this
Agreement for just cause in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. An
arbitration hearing shall be conducted in Boston, Massachusetts,
or other location mutually agreed to by the parties, within 90
days after service of the above written notice from the Executive
to the Company, or as soon thereafter as is practicable, and the
arbitrator shall issue his or her decision within 30 days of
close of the hearing. The arbitrator's decision shall be final
and non-appealable, and may be entered in the Essex County
Superior Court or the Suffolk County Superior Court of the
Commonwealth of Massachusetts and enforced in accordance with the
laws of that state. Regardless of the decision, the Executive
and the Company shall each bear his or its own attorney fees and
witness costs in relation to the arbitration, and the parties
shall equally bear all other arbitration related costs. In the
event the arbitrator determines that the Company did not properly
terminate this Agreement for just cause, the termination of the
Executive's employment shall stand for all purposes under this
Agreement, but the Company shall remain liable for all payments
of Base Compensation that would have come due after such
termination had this Agreement not been terminated, at the same
time that such payments would have come due. The arbitrator's
decision shall reflect such liability of the Company.
The Executive may terminate this Agreement at any time (i)
without cause upon at least 90 days written notice to the Company
or, (ii) upon a material breach by the Company of the provisions
of this Agreement, but only after the Executive has given 10 days
notice of the breach to the Company and the Company has failed to
cure such breach within 20 days of receipt of such notice.
11. No Impediments. The Executive warrants and
represents that he is free to enter into this Agreement and to
perform the services contemplated thereby and that such actions
will not constitute a breach of, or default under, any existing
agreement.
12. No Waiver. The failure of any of the parties hereto
to enforce any provision hereof on any occasion shall not be
deemed to be a waiver of any preceding or succeeding breach of
such provision or of any other provision.
13. Entire Agreement. This Agreement constitutes the
entire agreement and understanding of the parties hereto and no
amendment, modification or waiver of any provision herein shall
be effective unless in writing, executed by the party charged
therewith.
14. Governing Law. This Agreement shall be construed,
interpreted and enforced in accordance with and shall be governed
by the laws of the Commonwealth of Massachusetts applicable to
agreements to be wholly performed therein.
15. Binding Effect. This Agreement shall bind and inure
to the benefit of the parties, their successors and assigns.
16. Assignment and Delegation of Duties. This Agreement
may not be assigned by the parties hereto except that the Company
shall have the right to assign this Agreement in connection with
a sale or transfer of all or substantially all of its assets, a
merger or consolidation. This Agreement is in the nature of a
personal services contract and the duties imposed hereby are non-
delegable.
17. Paragraph Headings. The paragraph headings herein have
been inserted for convenience of reference only and shall in no
way modify or restrict any of the terms or provisions hereof.
18. Notices. Any notice under the provisions of this
Agreement shall be given by registered or certified mail, return
receipt requested, directed to the addresses set forth above,
unless notice of a new address has been sent pursuant to the
terms of this paragraph.
19. Unenforceability; Severability. If any provision of
this Agreement is found to be void or unenforceable by a court of
competent jurisdiction, the remaining provisions of this
Agreement, shall, nevertheless, be binding upon the parties with
the same force and effect as though the unenforceable part has
been severed and deleted.
20. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be deemed to be duplicate
originals.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
ENON MICROWAVE, INC.
By: /s/Xxxxxxx X. Xxxxx
_______________________
(Authorized Officer)
/s/Xxxxxx X. Xxxxxxx
_______________________
Xxxxxx X. Xxxxxxx
