EXHIBIT 10.15
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated April 25, 1997, by and
between LogiMetrics, Inc. (the "Company") and Xxxxxx X. Xxxxxx (the
"Executive"), residing at 0 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Company, mm-Tech, Inc. ("mm-Tech"), mm-Tech Acquisition Corp.
("Merger Sub") and Xxxxxxx X. Brand have entered into an Agreement and Plan of
Merger, dated December 18, 1996 (the "Merger Agreement"), pursuant to which,
among other things, Merger Sub will merge with and into mm-Tech and all of the
issued and outstanding capital stock of mm-Tech will be converted into shares of
Common Stock of the Company (the "Merger"); and
WHEREAS, the Executive has previously served as the Chairman of the Board
and Acting President of the Company; and
WHEREAS, the Executive is willing to serve as the President and Chief
Operating Officer of the Company commencing upon the consummation of the Merger
(the "Commencement Date") and the Company desires to retain the Executive in
that capacity on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
Section 1. Term of Employment. The Executive's employment shall commence on
the Commencement Date and, subject to earlier termination pursuant to Section 5
hereof, shall continue until the fifth anniversary of the Commencement Date (the
"Term"). In the event that the Commencement Date does not occur prior to April
30, 1997, this Agreement shall become null and void and shall be of no further
force and effect. The Executive hereby represents and warrants that (i) he has
the legal capacity to execute and perform this Agreement; (ii) this Agreement is
a valid and binding agreement enforceable against him according to its terms;
(iii) the execution and performance of this Agreement by him does not violate
the terms of any existing agreement or understanding to which the Executive is a
party or by which he may be bound; and (iv) the Executive knows no reason why he
would not be insurable at regular smoker rates.
Section 2. Position and Duties. During the Term, the Executive shall serve
as the President and the Chief Operating Officer of the Company and shall have
such powers and duties as are commensurate with such position and as may be
conferred upon him from time to time by the Board of Directors of the Company
(the "Board") or the Chief Executive Officer of the Company. During the Term,
the Executive shall also hold such other positions with one or more of the
Company's subsidiaries and shall perform such duties in connection therewith as
may be directed by the Board. During the Term, and except for illness or
incapacity and reasonable
vacation periods of no more than four weeks in any calendar year (or such other,
longer period as shall be consistent with the Company's policies for other
senior executives), the Executive shall devote all of his business time,
attention, skill and efforts exclusively to the business and affairs of the
Company and its subsidiaries and affiliates; provided, however, that (i) the
Executive may engage in other personal business activities not constituting
Competing Businesses under the Merger Agreement up to three days in any calendar
month and (ii) the Executive may engage in charitable, educational, religious,
civic and similar types of activities (all of which shall be deemed to benefit
the Company), speaking engagements, membership on the board of directors of
other organizations, and similar activities to the extent that such activities
do not inhibit or prohibit the performance of his duties hereunder or inhibit or
conflict with the business of the Company, its subsidiaries and affiliates.
Section 3. Compensation. For all services rendered by the Executive in any
capacity required hereunder during the Term, including, without limitation,
services as an executive officer, director, or member of any committee of the
Company, or any subsidiary, affiliate or division thereof, the Executive shall
be compensated as follows:
(a) The Company shall pay the Executive a fixed salary at the rate of
$150,000 per annum or such higher annual amount as is being paid from time to
time pursuant to the terms hereof ("Base Salary"). The Base Salary shall be
subject to such periodic review and such periodic increases as the Board (or the
Compensation Committee of the Board) shall deem appropriate in accordance with
the Company's customary procedures and practices regarding the salaries of
senior executives. Base Salary shall be payable in accordance with the customary
payroll practices of the Company, but in no event less frequently than
bi-weekly.
(b) Subject to the approval of the Board (or the Compensation
Committee of the Board), the Executive shall be entitled to participate in all
compensation and employee benefit plans or programs, and to receive all
benefits, perquisites and emoluments, for which any salaried employees of the
Company are eligible under any employee benefit plan or program now or hereafter
established and maintained by the Company. Notwithstanding the foregoing,
nothing in this Agreement shall require the Company to establish or maintain any
such plans or programs or shall preclude the amendment or termination of any
such plan or program established by the Company from time to time, provided that
such amendment or termination is applicable generally to the senior officers of
the Company or any subsidiary or affiliate.
(c) The Company shall provide and maintain a term life insurance
policy on the Executive in the face amount of at least $1 million.
Section 4. Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable travel or other expenses incurred by the Executive
in connection with the performance of his duties and obligations under this
Agreement, subject to the Executive's presentation of appropriate vouchers in
accordance with such procedures as the Company may from time to time establish
for senior officers and to preserve any deductions for Federal income taxation
purposes to which the Company may be entitled.
Section 5. Effect of Termination of Employment. (a) In the event the
Executive's employment terminates, whether during the Term or following the
expiration of the Term, due to a Without Cause Termination, the Company shall,
as liquidated damages or severance pay, or both, continue, subject to the
provisions of Section 6 below, to pay the Executive's Base Salary as in effect
at the time of such termination for the greater of (i) the remainder of the
then-current Term, or (ii) a period of twelve months from the effective date of
such termination. During the period that the Company is making payments pursuant
to this Section 5(a), the Company shall continue to provide the Executive with
continued group hospitalization, health and related insurance in lieu of any
rights the Executive would otherwise have under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"). For purposes hereof, no Without Cause
Termination shall be effective until 30 days after the Company has given notice
of termination to the Executive.
(b) In the event the Executive's employment terminates, whether during
the Term or following the expiration of the Term, due to a Permanent Disability,
the Company shall continue to pay the Executive's Base Salary as in effect at
the time of such termination for a period of six months from the date of such
termination; provided, that such amounts shall be offset by any amounts
otherwise paid to the Executive under the Company's then-existing disability
program. In addition, earned but unpaid Base Salary as of the date of
termination of employment shall be payable in full. The Executive shall be
entitled to continued group hospitalization, health and related insurance for
the periods specified under COBRA and the Company shall pay any related premiums
for a period of up to twelve months following such termination.
(c) In the event that the Executive dies or the Executive's employment
hereunder terminates due to a Termination for Cause or the Executive terminates
employment with the Company for reasons other than Permanent Disability or
retirement pursuant to any retirement plan then maintained by the Company,
earned but unpaid Base Salary as of the date of termination of employment shall
be payable in full to the Executive or his legal representative. However, no
other payments shall be made, or benefits provided, by the Company under this
Agreement except for benefits that have already become vested under the terms of
employee benefit programs maintained by the Company or its affiliates for its
employees and except as otherwise required by law.
(d) For purposes of this Agreement, the following terms have the
following meanings:
(i) The term "Termination for Cause" means, to the maximum extent
permitted by applicable law, a termination of the Executive's employment by
the Company because the Executive has (a) breached or failed to perform his
duties under applicable law and such breach or failure to perform
constitutes self-dealing, willful misconduct or recklessness, (b) committed
an act of dishonesty in the performance of his duties hereunder or engaged
in any conduct detrimental to the business or reputation of the Company,
(c) been convicted of a felony or misdemeanor involving moral turpitude,
(d) breached or failed to perform his
obligations and duties hereunder, which breach or failure the Executive
shall fail to remedy within 30 days after written demand from the Company,
or (e) violated the representations made in Section 1 above or the
provisions of Section 6 below.
(ii) The term "Without Cause Termination" means a termination of
the Executive's employment by the Company other than due to Permanent
Disability, retirement or expiration of the Term and other than a
Termination for Cause.
(iii) The term "Permanent Disability" means permanently disabled
so as to qualify for full benefits under the Company's then-existing
disability insurance policy; provided, however, that if the Company does
not maintain any such policy on the date of determination, "Permanent
Disability" shall mean the inability of the Executive to work for a period
of six full calendar months during any eight consecutive calendar months
due to illness or injury of a physical or mental nature, supported by the
completion by the Executive's attending physician of a medical
certification form outlining the disability and treatment.
Section 6. Other Obligations and Duties of Executive During and After Term.
(a) The Executive recognizes and acknowledges that all information
pertaining to the affairs, business, clients, or customers of the Company or any
of its subsidiaries or affiliates (any or all of such entities being hereinafter
referred to as the "Business"), as such information may exist from time to time,
other than information that is in the public domain, other than as a result of a
breach by the Executive of his obligations hereunder, is confidential
information and is a unique and valuable asset of the Business, access to and
knowledge of which are essential to the performance of the Executive's duties
under this Agreement. In consideration of the payments made to him hereunder,
the Executive shall not, except to the extent reasonably necessary in the
performance of his duties under this Agreement, divulge to any person, firm,
association, corporation, or governmental agency, any information concerning the
affairs, businesses, clients, or customers of the Business (except such
information as is required by law to be divulged to a government agency or
pursuant to lawful process), or make use of any such information for his own
purposes or for the benefit of any person, firm, association or corporation
(except the Business) and shall use his reasonable best efforts to prevent the
disclosure of any such information by others. All records, memoranda, letters,
books, papers, reports, accountings, experience or other data, and other records
and documents relating to the Business, whether made by the Executive or
otherwise coming into his possession, are confidential information and are,
shall be, and shall remain the property of the Business. No copies thereof shall
be made which are not retained by the Business, and the Executive agrees, on
termination of his employment or on demand of the Company, to deliver the same
to the Company.
(b) The Executive recognizes and acknowledges that the Company shall
own all Work Product created by the Executive during the Term. As used herein,
"Work
Product" includes, but is not limited to, all intellectual property rights, U.S.
and international copyrights, patentable inventions, creations, discoveries and
improvements, works of authorship and ideas, whether or not patentable or
copyrightable and regardless of their form or state of development. All Work
Product shall be considered work made for hire by the Executive and shall be
owned by the Company.
If any of the Work Product may not, by operation of law, be considered
a work made for hire by the Executive for the Company, or if ownership of all
right, title and interest of the intellectual property rights therein shall not
otherwise vest exclusively in the Company, the Executive shall assign, and upon
creation thereof shall be deemed to have automatically assigned, without further
consideration, the ownership of all such Work Product to the Company and its
successors and assigns. The Company, its successors and assigns shall have the
right to obtain and hold in its or their own name copyrights, patents,
registrations and other protections available to the Work Product. The Executive
shall assist the Company in obtaining and maintaining patent, copyright,
trademark and other appropriate protection for all Work Product in all
countries, at the Company's expense. The Executive hereby irrevocably
relinquishes for the benefit of the Company, its successors and assigns any
moral rights in the Work Product recognized under applicable law.
The Executive shall disclose all Work Product promptly to the Company
and shall not disclose the Work Product to anyone other than authorized Company
personnel without the Company's prior written consent. The Executive shall not
disclose to the Company or induce the Company to use any secret or confidential
information or material belonging to others.
The provisions of this Section 6(b) cover Work Product of any kind
that is conceived or made by the Executive that (i) relates to the business of
the Company, its subsidiaries and affiliates, (ii) results from tasks assigned
to the Executive by the Company, its subsidiaries and affiliates, or (iii) are
conceived or made with the use of facilities or materials provided by the
Company, its subsidiaries and affiliates.
(c) In consideration of the payments made to him hereunder, during the
two-year period commencing on the effective date of the termination of his
employment, the Executive shall not, without express prior written approval of
the Board, directly or indirectly, own or hold any proprietary interest in, or
be employed by or receive remuneration from, any Competing Business (as defined
in the Merger Agreement), other than severance-type or retirement-type benefits
from entities constituting prior employers of the Executive. The Executive also
shall not, during such two-year period, solicit for the account of any Competing
Business, any customer or client of the Company or its affiliates, or, in the
event of the Executive's termination of his employment, any entity or individual
that was such a customer or client during the twelve-month period immediately
preceding the Executive's termination of employment. The Executive also shall
not, during such two-year period, act on behalf of any Competing Business to
interfere with the relationship between the Company or its subsidiaries and
affiliates and their respective employees.
For purposes of the preceding paragraph, the term "proprietary
interest" means legal or equitable ownership, whether through stockholding or
otherwise, of an equity interest in a business, firm or entity other than
ownership of less than 2 percent of any class of equity interest in a publicly
held business, firm or entity.
(d) The Company's obligation to make payments, or provide for any
benefits under this Agreement (except to the extent vested or exercisable) shall
cease upon a violation of the preceding provisions of this section. The
Executive acknowledges that the restrictions contained in this Section 6 are
reasonable and necessary to protect the legitimate interests of the Company and
that any breach by the Executive of any provision hereof will result in
irreparable injury to the Company. The Executive acknowledges that, in addition
to all remedies available at law, the Company shall be entitled to equitable
relief, including injunctive relief, and an equitable accounting of all
earnings, profits or other benefits arising from such breach and shall be
entitled to receive such other damages, direct or consequential, as may be
appropriate. The Company shall not be required to post any bond or other
security in connection with any proceeding to enforce this Section 6. The
provisions of this Section 6 shall survive the Executive's termination of his
employment with the Company.
Section 7. Withholdings. The Company may directly or indirectly withhold
from any payments made under this Agreement all Federal, state, city or other
taxes and all other deductions as shall be required pursuant to any law or
governmental regulation or ruling or pursuant to any contributory benefit plan
maintained by or on behalf of the Company.
Section 8. Consolidation, Merger, or Sale of Assets. Nothing in this
Agreement shall preclude the Company from consolidating or merging into or with,
or transferring all or substantially all of its assets to, or engaging in any
other business combination with, any other person or entity which assumes this
Agreement and all obligations and undertakings of the Company hereunder. Upon
such a consolidation, merger, transfer of assets or other business combination
and assumption, the term "Company" as used herein shall mean such other person
or entity and this Agreement shall continue in full force and effect.
Section 9. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be given in writing and shall be deemed to
have been duly given if delivered or mailed, postage prepaid, by same day or
overnight mail (i) if to the Executive, at the address set forth above, or (ii)
if to the Company, as follows:
LogiMetrics, Inc.
000-00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Secretary
Facsimile: (000) 000-0000
or to such other address as either party shall have previously specified in
writing to the other.
Section 10. No Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect; provided, however, that nothing in this Section
10 shall preclude the assumption of such rights by executors, administrators or
other legal representatives of the Executive or his estate and their assigning
any rights hereunder to the person or persons entitled thereto.
Section 11. Source of Payment. All payments provided for under this
Agreement shall be paid in cash from the general funds of the Company. The
Company shall not be required to establish a special or separate fund or other
segregation of assets to assure such payments, and, if the Company shall make
any investments to aid it in meeting its obligations hereunder, the Executive
shall have no right, title or interest whatever in or to any such investments
except as may otherwise be expressly provided in a separate written instrument
relating to such investments. Nothing contained in this Agreement, and no action
taken pursuant to its provisions, shall create or be construed to create a trust
of any kind, or a fiduciary relationship, between the Company and the Executive
or any other person. To the extent that any person acquires a right to receive
payments from the Company hereunder, such right, without prejudice to rights
which employees may have, shall be no greater than the right of an unsecured
creditor of the Company.
Section 12. Binding Agreement; No Assignment. This Agreement shall be
binding upon, and shall inure to the benefit of, the Executive and the Company
and their respective permitted successors, assigns, heirs, beneficiaries and
representatives. This Agreement is personal to the Executive and may not be
assigned by him without the prior written consent of the Company. Any attempted
assignment in violation of this Section 12 shall be null and void.
Section 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New Jersey,
without reference to the choice of law principles thereof.
Section 14. Entire Agreement. This Agreement shall constitute the entire
agreement among the parties with respect to the matters covered hereby and shall
supersede all previous written, oral or implied understandings among them with
respect to such matters.
Section 15. Amendments. This Agreement may only be amended or otherwise
modified, and compliance with any provision hereof may only be waived, by a
writing executed by all of the parties hereto. The provisions of this Section 15
may only be amended or otherwise modified by such a writing.
Section 16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
shall together be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by the undersigned, thereunto duly authorized, and the Executive has
signed this Agreement, all as of the date first written above.
LOGIMETRICS, INC.
By:/s/Xxxxxxx X. Xxxxxxx
_______________________________
Xxxxxxx X. Xxxxxxx,
Senior Vice President
Finance and Administration
/s/Xxxxxx X. Xxxxxx
_______________________________
Xxxxxx X. Xxxxxx
