Exhibit 10.28
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of January 30, 2002, by and between Acterna
Corporation or an affiliate ("Company"), and Xxxx Xxxxxxx ("Employee").
WHEREAS, Employee has been employed in a critical managerial position
with 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 including but not
limited to options to purchase common stock of the Company being granted to
Employee in conjunction with this Agreement, the parties hereto agree as
follows:
1. Employment. Company hereby employs Employee, and Employee agrees to
serve as an Employee of Company, on the terms and conditions set forth in
this Agreement.
2. Period of Employment. The "Period of Employment" shall be the
period commencing on February 1, 2002 and ending on February 1, 2003;
provided, however, that commencing on February 1, 2003 and on the first day
of February of each year thereafter, the term of the Agreement shall
automatically be extended for one additional year unless at least 30
calendar 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.
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3. Duties During the Period of Employment. During the Period of
Employment, Employee shall serve as Corporate Vice President and CFO of the
Company, or such other position as shall be assigned to Employee by the
Board of Directors, and shall have such duties and responsibilities as are
assigned to Employee by the Board of Directors of the Company commensurate
with such position. Employee shall devote Employee's full business time,
attention and efforts to the affairs of the 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 the Company may from time to time agree to, and similar
types of activities, to the extent that such other activities, either
individually or collectively, do not, in the sole and reasonable discretion
of the Company, inhibit or prohibit the performance of Employee's duties
under this Agreement, or conflict in any material way with the business of
the Company and its affiliates.
4. Current Cash Compensation. As compensation for Employee's services
hereunder, during the Period of Employment Employee will be entitled to
receive an annual base salary at the rate of $300,000. Employee shall also
be entitled to participate in Company's annual bonus plan, under which he
or she shall have an annual target bonus opportunity of 100% of Employee's
annual rate of base salary as in effect at the beginning of the fiscal year
for which the bonus is payable. The Company shall review Employee's annual
rate of base salary and target annual bonus opportunity at least annually
and, in light of such review, may, in the discretion of the Board of
Directors of the Company, (which Board may, for these purposes and all
other purposes of this Agreement, delegate to officers of the Company its
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duties and discretion hereunder) increase either or both such annual base
salary or target opportunity. Any such review of Employee's annual
compensation shall take into account any change in Employee's
responsibilities, increases in the cost of living, performance by the
Employee, and other factors that the Board of Directors deems pertinent.
5. Other Employee Benefits.
(a) Vacation and Sick Leave. Employee shall be entitled to reasonable
paid annual vacation periods and sick leave in accordance with Company's
applicable vacation and sick leave policies prevailing from time to time.
(b) 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.
(c) 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, as presently in effect or
as they may be modified, altered, curtailed or supplemented by Company from
time to time.
(d) 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
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of this Agreement, shall be entitled to participate in Company's executive
compensation plans, as currently in effect or as they may be modified,
altered, curtailed or supplemented by Company from time to time.
(e) Additional Benefits.
In addition to the cash compensation provided for in Section 4 hereof
and participation in the employee benefit and executive compensation plans
provided in paragraphs (c) and (d) of this Section, Employee shall be
entitled to the additional benefits set forth in Exhibit A for the periods
and on the terms set forth in such Exhibit A.]
6. Termination.
(a) 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 on the termination
date a lump sum amount equal to (i) all accrued but unpaid base salary as
of the termination date, plus (ii) the pro rata amount of Employee's annual
bonus (if any) for the portion of the fiscal year preceding the termination
date that would have been payable to Employee if Employee had been employed
for the entire fiscal year, determined on the basis of actual performance
achieved by the Company through the termination date and the performance
objectives established for such fiscal year, pro rated to reflect the
portion of the fiscal year preceding the termination date, plus (iii) a
payment of Employee's annual base pay, at the annual rate in effect on the
termination date for a period of months equal to 1.5 times the number of
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years of service with the Company and its affiliates completed by Employee
prior to Employee's termination; provided that the lump sum payment subject
to this subsection (iii) shall not be less than twelve (12) month's base
pay and shall not be more than eighteen (18) month's base pay, plus (iv) a
payment equal to one years' bonus at target; provided, however, that such
payments enumerated in subsections (ii) through (iv) above are conditioned
on Employee's execution of Company's Severance and General Release
Agreement in a form acceptable to Company and continued compliance with the
other provisions of this Agreement.
"Cause" shall mean the willful and continued failure by Employee to
use reasonable effort 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 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 drugs or alcohol in the discretion of the Board of Directors;
fraud, material dishonesty or gross misconduct in connection with the
business of Company.
(b) Termination by Company for Cause. If Company shall terminate the
Period of Employment for Cause, Employee will be entitled only to be paid
that portion of the base annual salary due and not yet paid to the Employee
for the month in which the termination is made.
(c) Voluntary Termination by Employee. Employee shall have the right,
upon 60 days' prior written notice given to Company, to terminate the
Period of Employment. If Employee should terminate the Period of
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Employment, Employee will be entitled only to be paid that portion of the
base annual salary otherwise payable to Employee under paragraph (a) (i) of
Section 6 through the end of the month in which the Period of Employment is
terminated. No additional amounts shall be payable to Employee (except as
and to the extent otherwise required at law or under the express terms and
conditions of any employee benefit plan in which Employee participates).
(7) 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 Company or by any administrative or
legislative body (including a committee thereof) with apparent jurisdiction
to order him or her 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
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(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.
(8) Non-competition and Non-solicitation.
(a) Without the consent in writing of the Board of Directors of the
Company, during the period of Employee's employment with the Company and
upon termination of Employee's employment for any reason whatsoever,
Employee will not for a period of a minimum of twelve (12) months
thereafter and a maximum of eighteen (18) months thereafter (the
restrictive period being commensurate with the number of months of
severance being paid to Employee pursuant to Section 6 (a) (iii)) (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 Company or any of its
affiliates. Notwithstanding the preceding sentence, Employee shall not be
prohibited from owning less than one percent (1%) of any publicly traded
corporation (whether or not such corporation is in competition with Company
or its affiliates). The competitive restrictions imposed upon Employee by
this Section 8 shall be waived if, following a Change in Control of
Employer, Employee is terminated by the successor employer other than for
Cause. For purpose of this Agreement, a Change in Control shall have
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occurred when an unaffiliated entity shall have acquired greater than a 50%
interest in Employer.
(b) During the period of Employee's employment with the Company and
thereafter during the restrictive period applicable in Section 8 (a) above,
Employee shall not directly or indirectly, for his or her own account or
for the account of any other person anywhere in the world, solicit or
otherwise attempt to establish any business relationship of a nature that
is competitive with the business or relationship of the Company or any of
its affiliates with any person throughout the world which is or was a
customer, client or distributor of the Company or any of its affiliates at
any time during which Employee was employed by the Company (in the case of
any such activity during such time) or during the twelve-month period
preceding the date of termination (in the case of any activity after the
date of termination), other than any such solicitation on behalf of the
Company or any of its affiliates during Employee's employment with the
Company.
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.
9. 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 full injunctive relief, to be
issued by any competent court of equity, enjoining and restraining Employee
and each and every other person, firm organization, association, or
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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.
10. Governing Law. This Agreement is governed by and is to be
construed and enforced in accordance with the laws of the State of
Maryland, 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.
11. 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; provided that no such notice shall be required
for the headquarters move anticipated in June 2002. Unless otherwise
notified as set forth above, notice shall be sent to each party as follows:
(a) Employee, to:
To the Employee at his principal place of business
(b) Company, to:
Acterna Corporation
00000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
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.
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12. Miscellaneous.
(a) 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the year and day first above written.
ACTERNA CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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