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Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") made as of
September 7, 2001, by and between NetSilicon, Inc., a Massachusetts
corporation (the "Company"), and Xxxxxx X. Xxxxxxxx (the "Executive").
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WHEREAS, the Company and Executive entered into an Employment Agreement
dated as of August 9, 2001 (the "Original Employment Agreement"), and the
Company and Executive desire to amend certain provisions of the Original
Employment Agreement; and
WHEREAS, the Company wishes to secure the future services of the Executive
with the Company pursuant to the terms of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1) TERM.
a) The Company hereby agrees to continue to employ the Executive and the
Executive hereby agrees to continue employment with the Company, in
the position set forth in Section 2 below, for the Term (as defined
below), subject to the terms and conditions of this Agreement.
b) The term (the "Term") of this Agreement shall commence as of the date
of the Original Employment Agreement (the "Effective Date") and shall
continue until terminated in accordance with Section 4.
2) POSITION, DUTIES AND RESPONSIBILITIES.
a) During the Term, the Executive shall be employed by the Company and
shall serve the Company as its Executive Vice President of Finance and
Operations and Chief Financial Officer (the "CFO"). The Executive
shall have such duties and responsibilities as are incident to, or
reasonably requested in connection with, such position, as well as
such other comparable duties and responsibilities as may be assigned
to him by the Company. The Executive shall report to the Chief
Executive Officer (the "CEO") or to such comparable or higher level of
authority and responsibility within the Company as the CEO or the
Board of Directors (the "BOD") may reasonably determine.
b) During the Term, the Executive shall serve the Company faithfully,
diligently and to the best of the Executive's ability, and shall
devote substantially all of the Executive's business time and efforts
to such service. The Executive also shall not engage in any other
business activity without the written consent of the Company, except
that Executive may (i) carry on charitable, civic, or other
non-for-profit activities or (ii) manage his personal investments,
provided that none of such activities may conflict with the
Executive's duties under this Agreement and the Non-Disclosure,
Proprietary Rights and Non-Solicitation Agreement dated as of March
10, 2000 (the "Nondisclosure
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Agreement"). If the Executive shall be elected to other offices of the
Company or any of its affiliates, he shall serve in such positions
without further compensation than provided for in this Agreement. The
Executive shall perform his services under this Agreement at such
locations as may be required by the Company from time to time, but the
Company will not require the Executive to permanently relocate to an
office more than 50 miles from the Company's Waltham, Massachusetts
office.
c) The Executive agrees to comply with the policies and procedures of the
Company applicable to its U.S. employees generally from time to time
that are in force (which may be amended, revised or supplemented at
any time in the Company's sole discretion), provided, however, that to
the extent there is a conflict between the terms of this Agreement and
the policies and procedures of the Company, the terms of this
Agreement shall govern unless otherwise specified herein.
3) COMPENSATION AND BENEFITS. During the term of this Agreement, the Company
shall pay the Executive as compensation for his satisfactory performance of
his duties and obligations hereunder, the following:
a) BASE SALARY. During the Term, the Company shall pay to the Executive a
base salary at the rate of U.S. $12,500.00 per month ("Base Salary"),
subject to annual change in the discretion of the Company in
accordance with the Company's executive compensation practices, and
payable in accordance with the regular payroll practices of the
Company as may be modified or established from time to time.
b) INCENTIVE COMPENSATION. During the Term, the Executive shall be
eligible to receive additional quarterly incentive compensation (the
"Incentive Bonus"). The amount of the Incentive Bonus, if any, will be
as determined by the BOD's Compensation Committee (which may put in
place an Executive Incentive Plan), which may consider, among other
things, the Executive's actual attainment of specific goals and the
Company's overall performance. The BOD's Compensation Committee will
make all determinations regarding the Executive's eligibility for the
quarterly Incentive Bonus at its sole discretion. Subject to the
provisions of Section 4 herein, the Executive must be employed by the
Company in good standing (as determined by the BOD) as the Company's
CFO to be eligible for any Incentive Bonus payments, which will be
subject to applicable taxes and payable in accordance with the
Company's normal bonus pay practices as may be established or modified
from time to time.
c) STOCK OPTIONS. The Executive has received certain stock options as
part of the Company's initial public offering as well as additional
awards thereafter in accordance with Company option policy. The
Executive shall be eligible to receive additional stock option awards
as determined by the BOD in its sole discretion.
d) BENEFITS. Subject to any contribution therefor generally required of
senior executives of the Company, the Executive shall be eligible to
participate in all employee benefits plans, including the Company's
health and dental plans, as adopted by the BOD and in effect for
senior executives of the Company. Such participation shall be subject
to (i) the terms of
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the applicable plan documents, (ii) generally applicable Company
policies and (iii) the discretion of the BOD or any administrative or
other committee provided for in or contemplated by such plans.
e) EXPENSES. The Company shall pay or reimburse the Executive for all
reasonable business expenses incurred or paid by the Executive in the
performance of his responsibilities hereunder in accordance with the
Company's prevailing policy and practice relating to reimbursements as
established, modified or amended from time to time. The Executive must
provide substantiation and documentation of these expenses to the
Company in order to receive reimbursement, as required pursuant to
Company policy.
f) CHANGE OF CONTROL. In the event of a Change of Control that occurs on
or before January 1, 2002, or in the event that the Company and a
third party have executed a binding agreement on or before such date
to consummate a Change of Control and such Change of Control occurs
within the three month period following January 1, 2002, where in each
case the Company is or will be sold to a party that is unaffiliated
with Sorrento Networks, Inc., or its successors and assigns
("Sorrento") and the Executive substantially contributes, as
determined in good faith at the sole discretion of the BOD, to the
success of the transaction, the Executive shall be entitled to receive
one quarter (.25) of one percent of the Consideration (as hereinafter
defined). Such fee shall be paid in the same form and at such time as
the Company, or its stockholders, as the case may be, receives its
Consideration pursuant to such transaction. In addition, after the
consummation of a Change of Control which occurs at any time, the
Executive's unvested stock options will vest immediately and become
exercisable for a period of twenty-four (24) months from the date of
the consummation of a Change of Control. "Consideration" shall mean
the aggregate value, whether in cash or securities, paid to the
shareholders of the Company in their capacity as such in respect of
the shares of common stock of the Company held by them in connection
with a Change of Control. The value of any Consideration and the
payment to the Executive shall be determined in good faith by the BOD.
4) TERMINATION OF EMPLOYMENT.
a) TERMINATION BY THE COMPANY FOR CAUSE. In the event that the Company
terminates the Executive's employment and this Agreement for Cause (as
defined in Section 5(a)), the Executive shall be entitled to no
payments, salary continuation, severance or other benefits, except
for: (i) Base Salary earned and accrued but unpaid through the date of
Executive's termination of employment; (ii) payment for accrued but
unused vacation time up to the Executive's termination of employment;
(iii) statutory benefit continuation rights in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"),
provided Executive makes the appropriate voluntary contribution
payments and subject to applicable law and the requirements of the
Company's health insurance plans then in effect; and (iv) all expenses
reimbursable to the Executive and unpaid as of the date of Executive's
termination of employment.
b) TERMINATION DUE TO DEATH OR PERMANENT DISABILITY. In the event of the
termination of the Executive's employment and this Agreement due to
the Executive's death or Disability,
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the Executive, or the Executive's legal representative, shall be
entitled to no payments, salary continuation, severance or other
benefits, except for: (i) Base Salary to the extent earned and accrued
but unpaid through the date of Executive's termination of employment,
as well as a one time lump sum payment equivalent to six (6) times the
Executive's monthly Base Salary, to be paid within a reasonable time
after the Executive's death or Disability; (ii) payment for accrued
but unused vacation time up to the Executive's termination of
employment; (iii) statutory benefit continuation rights in accordance
with COBRA, provided Executive makes the appropriate voluntary
contribution payments and subject to applicable law and the
requirements of the Company's health insurance plans then in effect;
(iv) the Executive's unvested stock options shall vest as if the
vesting start date with respect to such stock options were one year
prior to the vesting start date set forth in the applicable option
agreements and become exercisable for a period of ninety (90) days
from the date of the Executive's death or Disability; and (v) all
expenses reimbursable to the Executive and unpaid as of the date of
Executive's termination of employment.
c) TERMINATION WITHOUT CAUSE. In the event that the Executive's
employment and this Agreement are terminated by the Company without
Cause, the Executive shall be entitled to no payments, salary
continuation, severance or other benefits, except for: (i) severance
payment in the form of continuation of his Base Salary for twelve (12)
months at the same rate in effect as of the Executive's last day of
employment with the Company, payable pursuant to the regular payroll
practices of the Company over such twelve (12) month period; (ii)
payment for accrued but unused vacation time up to the Executive's
termination of employment; (iii) if the Executive elects after the
termination of his employment and in accordance with COBRA to continue
health coverage under the same plans available to active Company
employees, under the same rules, restrictions and regulations
applicable thereto, the Company shall make premium payments on his
behalf until the earlier of (x) twelve (12) months from the last day
of the Executive's employment or (y) the date on which the Executive
becomes ineligible to receive COBRA benefits; and (iv) all expenses
reimbursable to the Executive and unpaid as of the date of Executive's
termination of employment. In addition, in the event the Executive's
employment and this Agreement are terminated without Cause, the
Executive's unvested stock options will vest immediately and become
exercisable for a period of twenty-four (2) months from the date of
the Executive's termination without Cause. The Executive shall be
entitled to no other benefits or additional payments under this
Agreement.
d) VOLUNTARY TERMINATION. The Executive may voluntarily terminate his
employment (thereby effectuating a "Voluntary Termination") only upon
sixty (60) days' written notice to the BOD. In the event of a
Voluntary Termination, the Company may accelerate Executive's
departure date (and terminate this Agreement) and will have no
obligation to pay Executive after his actual departure date. In the
event of a Voluntary Termination, and if no proceedings to terminate
the Executive for Cause have been initiated, the Executive shall be
entitled to no payments, salary continuation, severance or other
benefits, except for those payments and benefits as set forth in
Section 4(a).
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e) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. In the event the
Executive decides to terminate this Agreement and his employment for
Good Reason (as defined in Section 5(e)), then the Executive must give
notice of such termination to the Company and the BOD. If the basis
for such Good Reason is not cured within thirty (30) days after the
Company and the BOD receive written notice specifying the basis of
such Good Reason (as determined by the BOD in good faith), this
Agreement, and the Executive's employment, shall terminate. In the
event of a termination by the Executive for Good Reason, the Executive
shall be entitled to the severance payments as set forth in Section
4(c).
f) EXECUTION OF RELEASE OF CLAIMS. In order to receive any of the
severance payments and benefits outlined in Section 4(b), 4(c), 4(d)
or 4(e), as the case may be, the Executive must execute a
comprehensive release of all claims in favor of the Company and its
officers, directors, employees, shareholders, agents and/or
representatives.
g) CESSATION OF SEVERANCE PAYMENTS AND BENEFITS. If the Executive
breaches in any material respect his obligations under this Agreement
or the Nondisclosure Agreement, the Company may immediately cease
payment of all severance and/or benefits described in this Agreement.
This cessation of severance and/or benefits shall be in addition to,
and not as an alternative to, any other remedies in law or in equity
available to the Company, including the right to seek specific
performance or an injunction.
5) DEFINITIONS.
For purposes of the Agreement, the following terms shall be defined as set
forth below:
(a) "Cause", which will be determined by the BOD at its sole discretion,
is defined as:
(i) the continued failure or refusal of the Executive substantially
to perform Executive's duties and obligations to the Company
(other than any such failure resulting from the Executive's
Disability) and which is not cured within fifteen (15) days of
notice thereof from the Company;
(ii) gross negligence in the performance of the Executive's duties,
willful misfeasance in connection with the Executive's work,
dishonesty, disloyalty, or a breach of fiduciary duty by the
Executive;
(iii) the commission by the Executive of an act of fraud,
embezzlement, misappropriation of any money or other assets or
property (whether tangible or intangible), or any other illegal
conduct in connection with the Executive's performance of his
duties;
(iv) the Executive's conviction of or pleading of nolo contendere to
a felony;
(v) disregard in any material respect of the rules or policies of
the Company which, if curable, has not been cured within fifteen
(15) days after notice thereof from the Company;
(vi) engagement by the Executive in misconduct which is injurious in
any material respect to the Company; or
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(vii) the commission of an act which constitutes unfair competition
with the Company or which induces any customer of the Company to
breach a contract with the Company, or the Executive's breach of
this Agreement, the Nondisclosure Agreement, or any other
written agreement with the Company.
(b) "Change of Control" means: (i) the merger or consolidation of the
Company with or into any other corporation or entity, or the merger or
consolidation of any other corporation or entity into or with the
Company, which results in the Company or those persons who are
shareholders of the Company as of the date hereof holding less than
50% in voting power of the outstanding capital stock of the surviving
corporation; (ii) any sale or transfer in a single transaction or
series of related transactions of all or substantially all of the
Company's assets as of the transaction date (or the date of the first
transaction in a series of related transactions); (iii) a third
"person," including a "group," becomes the "beneficial owner" (as
these terms are defined in Section 13(d) of the Securities Exchange
Act of 1934, as amended) of shares of the Company having more than 50%
of the voting power of the outstanding capital stock of the Company;
or (iv) any transaction or series of related transactions in which a
third "person," including a "group" (as these terms are defined in
Section 13(d) of the Securities Exchange Act of 1934, as amended),
appoints or elects a majority of the Board of Directors of the
Company.
(c) "Disability" means the Executive's inability, for a period of ninety
(90) consecutive days, to perform, with or without a reasonable
accommodation (that does not subject the Company to an undue
hardship), the essential functions of his position by reason of mental
or physical impairment.
(d) "Voluntary Termination" means a termination of employment during the
Term by the Executive on the Executive's own initiative other than a
termination for death or Disability under Section 4(b).
(e) "Good Reason" shall mean, without the Executive's approval,
i) a material diminution, without Cause (as defined in Section
5(a)), in the material responsibilities of the Executive; and
ii) Executive's permanent relocation to an office more than 50 miles
from the Company's Waltham, Massachusetts office.
6) NONCOMPETITION AND NONSOLICITATION. As a condition of this Agreement, and
in consideration for the payments set forth herein, the Executive agrees that,
during the period of his employment by the Company and its subsidiaries and for
two (2) years after the termination of his employment, regardless of the reasons
for such termination, the Executive will not, directly or indirectly, alone or
as a partner, officer, director, employee, joint venturer, lender or stockholder
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of any entity (other than as a shareholder of less than 1% of stock of a
publicly traded corporation), without the prior written consent of the Company:
a) (i) accept employment with any business that competes with the
products or services being created, developed, manufactured, marketed,
distributed or sold by the Company, (ii) engage in any business or
activity that competes with the products or services being created,
developed, manufactured, marketed, distributed or sold by the Company,
and (iii) become an officer, director of, or maintain a consulting or
other professional relationship with, any business that competes with
the products or services being created, developed, manufactured,
marketed, distributed or sold by the Company.
b) solicit the business of any customer, investor or partner of the
Company, or induce any such customer, investor or partner to terminate
their relationship with the Company.
7) INDEMNIFICATION. The Executive shall be entitled to indemnification from
the Company to the fullest extent permitted by the Company's Articles of
Organization, By-laws, shareholder resolutions and/or applicable law.
8) ENTIRE AGREEMENT; CONFLICTS. This Agreement, the Nondisclosure Agreement,
and any stock option agreement between the Executive and the Company, contain
the entire agreement between the Company and the Executive concerning the
Executive's employment by the Company and supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether written or
oral, between them with respect to the subject matter herein. The Executive and
the Company (except as may be required in the course of the Company doing
business) agree to keep the terms of this Agreement strictly confidential. The
Executive represents that he is not bound by any agreement or any other existing
or previous business relationship that conflicts with, or may conflict with, the
performance of his obligations hereunder or prevent the full performance of his
duties and obligations hereunder.
9) AMENDMENTS OR WAIVER. This Agreement cannot be changed, modified or amended
without the consent in writing of both the Executive and the Company. No waiver
by either the Company or the Executive at any time of any breach by the other
party of any condition or provision of this Agreement shall be deemed a waiver
of a similar or dissimilar condition or provision at the same or at any prior or
subsequent time. Any waiver must be in writing and signed by the Executive or an
authorized officer of the Company, as the case may be (other than the
Executive).
10) SEVERABILITY. In the event that any provision or portion of this Agreement
or the other agreements executed in connection with the transactions
contemplated hereby for any reason shall be determined to be invalid or
unenforceable for any reason, in whole or in part, such provisions will be
reformed to the extent possible so as to effectuate the intent of this
Agreement. In addition, the remaining provisions of this Agreement or such other
agreements shall be unaffected thereby and shall be construed, reformed and thus
remain in full force and effect to the fullest extent permitted by law.
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11) SURVIVAL. The Executive agrees that Sections 4, 5, 6, 7, 8, 9, 10, 12, 13
and 14, any agreements between the Executive and the Company referenced herein,
and such other provisions to the extent necessary to the intended preservation
of such rights and obligations, shall survive any termination of this Agreement.
12) GOVERNING LAW AND JURISDICTION; ARBITRATION. This Agreement shall be
governed by and construed and interpreted in accordance with the laws of
Massachusetts, USA, without reference to principles of conflict of laws. Any
dispute, controversy or claim arising out of or in connection with this
Agreement shall be exclusively subject to arbitration before the American
Arbitration Association ("AAA") in Boston, Massachusetts, before a single
arbitrator in accordance with the AAA's then current Employment Arbitration
Rules. Judgment upon any arbitration award may be entered in any court of
competent jurisdiction. All parties shall cooperate in the process of
arbitration for the purpose of expediting discovery and completing the
arbitration proceedings. Nothing contained in this Section or elsewhere in this
Agreement shall in any way deprive either party of its right to obtain
injunctive or other equitable relief in a court of competent jurisdiction.
13) NOTICES; MISCELLANEOUS.
a) Any notice given to either party shall be in writing and shall be
deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt
requested, duly addressed to the party concerned, if to the Company,
addressed to the BOD at the Company's principal executive offices, and
if to the Executive, at the address of the Executive shown on the
Company's records, or at such other address as such party may give
written notice of.
b) The headings of the Sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
c) This Agreement may be executed in two or more counterparts.
d) the Company shall make such deductions and withhold such amounts from
each payments and benefits made or provided to the Executive
hereunder, as may be required from time to time by applicable law,
governmental regulation or order.
14) ASSIGNMENT; SUCCESSORS. The Company may assign this Agreement. This
Agreement is personal in its nature and therefore the Executive cannot assign
this Agreement without the consent of the BOD. This Agreement will inure to the
benefit of the Company's successors and assigns, and such successor or assign
shall discharge and perform all the promises, covenants, duties and obligations
of the Company hereunder, and all references herein to "NetSilicon" or "Company"
shall refer to such successor.
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15) WITHHOLDING.
(a) Any payments made to the Executive pursuant to this Agreement
(including without limitation the acceleration of options pursuant to this
Agreement) shall be subject to all applicable federal, state and local taxes
and/or withholding.
(b) If the Company in its discretion determines that it is obligated to
withhold any tax in connection with any payment under this Agreement, or in
connection with the acceleration of any option pursuant to this Agreement, the
Executive hereby agrees that the Company may withhold from any amounts paid, or
to be paid, under this Agreement, including the Executive's wages or other
remuneration, the appropriate amount of such tax (as permitted under applicable
law). The Executive further agrees that, if the Company does not withhold an
amount from the Executive's wages or other remuneration (including any
remuneration paid pursuant to this Agreement) sufficient to satisfy the
withholding obligation of the Company, the Executive will make reimbursement on
demand, in cash, for the amount underwithheld.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Employment Agreement as of the date first above written as an instrument under
seal.
THE COMPANY EXECUTIVE
By: /s/ Xxxxxxxxx Xxxxxxxx, VIII /s/ Xxxxxx X. Xxxxxxxx
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Signature
Title:
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Xxxxxx Xxxxxxx
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Xxxx Xxxxx Zip Code
