EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AGREEMENT, effective as of October 1, 1998, by and between
Wavetek Wandel & Goltermann, Inc., a Delaware corporation (the "Company"), and
Xxxxx Xxxxxxxx (the "Employee").
WHEREAS, Employee has been employed as an executive officer of
Company; and
WHEREAS, Company and Employee wish to set forth the terms of the
Employee's continued employment by Company; NOW,
THEREFORE, IN CONSIDERATION OF the mutual covenants herein
contained, and other good and valuable consideration, the parties hereto agree
as follows:
EMPLOYMENT.
Company hereby employs Employee, and Employee agrees to serve as an
employee of the Company, on the terms and conditions set forth in this
Agreement.
PERIOD OF EMPLOYMENT.
The "Period of Employment" shall be the period commencing on
September 30, 1998, and ending on September 29, 2000; PROVIDED, HOWEVER, that
commencing on September 30, 1999 and on the September 30 of each year
thereafter, the term of the Agreement shall automatically be extended for one
additional year unless at least 30 days prior to any such date, Company or
Employee shall have given notice in accordance with Section 11 hereof that such
extension shall not occur.
DUTIES DURING THE PERIOD OF EMPLOYMENT.
During the Period of Employment, Employee shall serve as Chief
Operating Officer of the Company and shall have such duties and responsibilities
as are assigned to Employee by the Board of Directors of Company commensurate
with such position. Employee shall devote Employee's full business time,
attention and efforts to the affairs of Company during the Period of Employment,
PROVIDED, HOWEVER, that Employee may engage in other activities, such as
activities involving professional, charitable, educational, religious and
similar types of organizations, speaking
engagements, membership on the board of directors of such other organizations as
Company may from time to time agree to, and similar type activities to the
extent that such other activities do not inhibit or prohibit the performance of
Employee's duties under this Agreement, or conflict in any material way with the
business of Company and its affiliates.
In performing such duties, Employee's principal place of employment
shall be at the Company's headquarters in North Carolina.
CURRENT CASH COMPENSATION.
As compensation for Employee's services hereunder, during the
Period of Employment Employee will be entitled to target total compensation at
the annual rate of $408,000 of which: (i) 70% shall be base salary, payable in
accordance with the Company's payroll practices for senior executives and (ii)
30% shall be target bonus, payable in accordance with Company's annual bonus
plan. Company shall review such target total compensation annually and in light
of such review may, in the discretion of the Board of Directors of Company (but
shall not be obligated to), increase such target total compensation taking into
account any change in Employee's then responsibilities, increases in the cost of
living, performance by Employee, and other pertinent factors.
OTHER EMPLOYEE BENEFITS.
VACATION AND SICK LEAVE.
Employee shall be entitled to reasonable paid annual vacation
periods and sick leave in accordance with the Company's executive vacation and
sick leave policies.
REGULAR REIMBURSED BUSINESS EXPENSES.
Company shall reimburse Employee for all expenses and
disbursements reasonably incurred by Employee in the performance of Employee's
duties during the Period of Employment, and provide such other facilities or
services as Company and Employee may, from time to time, agree are appropriate,
all in accordance with Company's established policies.
EMPLOYEE BENEFIT PLANS.
In addition to the cash compensation provided for in Section 4
hereof, Employee, subject to meeting eligibility provisions and to the
provisions of this Agreement, shall be entitled to participate in Company's
employee benefit plans for U.S. executives, as presently in effect or as they
may be modified or added to by Company from time to time.
EXECUTIVE COMPENSATION PLANS.
In addition to the cash compensation provided for in Section 4
hereof and the employee benefits provided for in paragraph (c) of this Section,
Employee, subject to meeting eligibility provisions and to the provisions of
this Agreement, shall be entitled to participate in Company's executive
compensation plans, as presently in effect or as they may be modified or added
to by Company from time to time.
TERMINATION.
TERMINATION BY COMPANY WITHOUT CAUSE.
If Company should terminate the Period of Employment without
Cause as defined below, in addition to any other compensation and benefits
payable as provided for hereunder, Company shall pay to Employee a lump sum
amount equal to the base salary payable to Employee pursuant to Section 4 as of
the date of termination of the Period of Employment for the greater of (i) the
balance of the Period of Employment or (ii) twelve months.
In addition to the payment provided for above, in the event of such
termination all stock options held by Employee to purchase stock of Company
which would otherwise vest on or before January 5, 2000 shall become immediately
and fully vested. Notwithstanding anything contained herein to the contrary,
such stock option vesting is conditioned on Employee's execution of Company's
severance and general release agreement.
"Cause" shall mean the willful and continued failure by Employee to
substantially perform Employee's duties with Company (other than any such
failure resulting from incapacity due to physical or mental illness) after a
demand for substantial performance is delivered to Employee by the Company
which specifically identifies the manner in which Company believes Employee has
not substantially performed his duties; conviction of, or plea of NOLO
CONTENDERE to, a felony; habitual abuse of narcotics or alcohol; fraud, material
dishonesty or gross misconduct in connection with the business of the Company.
TERMINATION BY EMPLOYEE; TERMINATION BY COMPANY FOR CAUSE.
Employee shall have the right, upon 30 days' prior written
notice given to Company, to terminate the Period of Employment. If Employee
should terminate the Period of Employment (except as provided in paragraph (c)
below) or Company should terminate the Period of Employment for Cause, Employee
will be entitled only to be paid the base annual salary otherwise payable to
Employee under paragraph (a) of Section 4 through the end of the month in which
the Period of Employment is terminated.
TERMINATION AT END OF INITIAL PERIOD OF EMPLOYMENT.
Company shall pay to Employee a lump sum amount equal to
twelve months' base salary payable pursuant to Section 4 at the rate then in
effect if the Period of Employment terminates on September 29, 2000 pursuant to
(i) notice given by either party pursuant to Section 2 or (ii) at least 90 days'
prior written notice by Employee.
CONFIDENTIAL INFORMATION.
Employee agrees to keep secret and retain in the strictest
confidence all confidential matters which relate to Company or any affiliate of
Company, including, without limitation, customer lists, client lists, trade
secrets, pricing policies and other business affairs of Company and any
affiliate of Company learned by Employee from Company or any such affiliate or
otherwise before or after the date of this Agreement, and not to disclose any
such confidential matter to anyone outside Company or any
of its affiliates, whether during or after Employee's period of service with
Company, except as may be required by a court of law, by any governmental
agency having supervisory authority over the business of the Company or by any
administrative or legislative body (including a committee thereof) with
apparent jurisdiction to order him to divulge, disclose or make accessible
such information. Employee agrees to give Company advance written notice of
any disclosure pursuant to the preceding sentence and to cooperate with any
efforts by Company to limit the extent of such disclosure. Upon request by
Company, Employee agrees to deliver promptly to Company upon termination of
Employee's services for Company, or at any time thereafter as Company may
request, all Company or affiliate memoranda, notes, records, reports, manuals,
drawings, designs, computer files in any media and other documents (and all
copies thereof) relating to Company's or any affiliate's business and all
property of Company or any affiliate associated therewith, which Employee may
then possess or have under Employee's control, other than personal notes,
diaries, rolodexes and correspondence.
NONCOMPETITION AGREEMENT.
Without the consent in writing of the Board of Directors of
Company which will not be unreasonably withheld, upon termination of Employee's
employment for any reason whatsoever, Employee will not for a period of one year
thereafter (i) engage in, or carry on, directly or indirectly, either for
himself or as a member of a partnership or as a stockholder, investor, officer
or director of a corporation or as an employee, agent, associate, adviser or
consultant of any person, partnership or corporation, any business in
competition with the business carried on by Company or any of its affiliates or
(ii) employ or seek to employ any person then employed by the Company or any of
its affiliates. Notwithstanding the preceding sentence, Employee shall not be
prohibited from owning less than five percent (5%) of any publicly traded
corporation (whether or not such corporation is in competition with Company or
its affiliates).
It is the intention of the parties hereto that the
restrictions contained in this Section be enforceable to the fullest extent
permitted by applicable law. Therefore, to the extent any court of competent
jurisdiction shall determine that any portion of the foregoing restrictions is
excessive, such provision shall not be entirely void, but rather shall be
limited or revised only to the extent necessary to make it enforceable.
Employee confirms that all restrictions in this Section are
reasonable and valid and hereby waives all defenses to the strict enforcement
thereof by Company.
REMEDY.
Should Employee engage in or perform, either directly or
indirectly, any of the acts prohibited by Sections 7 and 8 hereof, it is agreed
that Company shall be entitled to any relief that a competent court finds
appropriate against the Employee and each and every other person, firm,
organization, association, or corporation concerned therein, from the
continuance of such violative acts. The foregoing remedy available to Company
shall not be deemed to limit or prevent the exercise by Company of any or all
further rights and remedies which may be available to Company hereunder or at
law or in equity.
GOVERNING LAW.
This Agreement is governed by and is to be construed and
enforced in accordance with the laws of the State of California, without
reference to rules relating to conflicts of law. If under such law, any portion
of this Agreement is at any time deemed to be in conflict with any applicable
statute, rule, regulation or ordinance, such portion shall be deemed to be
modified or altered to conform thereto or, if that is not possible, to be
omitted from this Agreement; the invalidity of any such portion shall not affect
the force, effect and validity of the remaining portion hereof.
NOTICES.
All notices under this Agreement shall be in writing and shall
be deemed effective when delivered in person, or five (5) days after deposit
thereof in the U.S. mails, postage prepaid, for delivery
as registered or certified mail, addressed to the respective party at the
address set forth below or to such other address as may hereafter be designated
by like notice. Unless otherwise notified as set forth above, notice shall be
sent to each party as follows:
EMPLOYEE, TO:
Xxxxx Xxxxxxxx
P. O. Xxx 000000
Xxxxxx Xxxxx Xx, XX 00000
(b) Company, to:
Wavetek Wandel & Goltermann, Inc.
0000X Xxxxxx Xxxxx
P.O. Box 113585
Research Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chief Executive Officer
In lieu of personal notice or notice by deposit in the U.S.
mail, a party may give notice by confirmed telegram, telex or fax, which shall
be effective upon receipt.
MISCELLANEOUS.
ENTIRE AGREEMENT.
This Agreement constitutes the entire understanding between
Company and Employee relating to employment of Employee by Company and
supersedes and cancels all prior written and oral agreements and understandings
with respect to the subject matter of this Agreement. This Agreement may be
amended but only by a subsequent written agreement of the parties. This
Agreement shall be binding upon and shall inure to the benefit of Employee,
Employee's heirs, executors, administrators and beneficiaries, and Company and
its successors.
WITHHOLDING TAXES.
All amounts payable to Employee under this Agreement shall be
subject to applicable withholding of income, employment and other taxes.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the year and day first above written.
WAVETEK WANDEL & GOLTERMANN, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Co-Chairman of the Board of Directors
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
