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EXHIBIT 10.32
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT, initially made as of the 16th of October, 1995, is
amended and restated as of the 29th day of April, 1999 (the "Effective Date"),
by and between ANTEC CORPORATION, a Delaware corporation ("Company"), and Xxxxxx
Xxxxxxxxx ("Executive").
WHEREAS, Company and Executive desire to modify their current
contractual relationship;
WHEREAS, Company recognizes Executive's knowledge and experience in its
industry and business and Executive's desire to assure Executive's continued
employment; and
WHEREAS, Executive is desirous of serving Company on the terms herein
provided, including those restricting Executive's ability to compete in the
future;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. EMPLOYMENT AND TERM. Company will employ Executive and Executive will
work for Company in the Atlanta area as follows: Executive will serve
as President and Chief Operating Officer for such portion of the
remainder of 1999 as the Board of Directors of Company (the "Board")
shall determine. Thereafter Executive will serve as President and Chief
Executive Officer until Executive reaches the age of 65 or this
agreement is terminated as provided in Section 5 (the "Termination
Date"). As President and Chief Executive Officer, Executive will
perform on a full-time basis the normal services of a chief executive
officer, including without limitation, the assignment and review of
tasks to be performed by the Chairman of the Board outside of meetings
of the Board.
2. COMPENSATION. Company will pay Executive for the performance of
Executive's duties as President and Chief Operating or Chief Executive
Officer (a) a salary ("Base Compensation"), at the rate of $420,000 a
year for the period January 1 to December 31, 1999, at the rate of
$500,000 a year for the year 2000, and thereafter at the rate of at
least $500,000 a year adjusted minimally for inflation since January 1,
2000 and any significant increase in the complexity of Company, and (b)
a bonus ("Bonus") for each year and partial year in an amount
determined by Company using such criteria as it deems fair and
equitable, allowing up to 150% of planned Bonus for 1999 and 200% of
planned Bonus for subsequent years for performance above target goals.
The amount of the planned Bonus shall be 75% of total Base Compensation
for the year or partial year for which the Bonus is being paid.
Executive's Base Compensation shall be payable semi-monthly, and the
Bonus shall be payable as soon after the end of each calendar year as
it can be determined, but in any event within ninety (90) days
thereafter.
3. ADDITIONAL BENEFITS.
(a) Executive will be entitled to participate in and receive benefits
under any retirement plan, health plan, disability plan and life
insurance plan or other similar executive benefit plan or arrangement
(collectively "Benefit Plans") generally made available by Company from
time to time to its senior executives. Company will not substantially
reduce the aggregate amount it is currently incurring to provide
Benefit Plans to Executive. Executive will be entitled to such other
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benefits, including vacation, fringe benefits and expense reimbursement
as generally made available by Company from time to time to its senior
executives.
(b) On the condition that prior to October 30, 2000, this Agreement has
not been terminated either by Company with Good Cause (other then
disability of Executive) or by Executive without Good Reason, Executive
will be provided a supplemental pension equal to (i) the amount of
pension he would have had under Company's defined benefit retirement
plan and related excess benefit plan if period of Executive's service
under those plans were tripled for all purposes including without
limitation for purposes of eligibility for a pension, less (ii) the
amount of pension to which Executive is entitled under Company's
defined benefit retirement plan and related excess benefit plan. This
additional benefit will be paid in accordance with the provisions of
the excess benefit plan as they read on the Effective Date.
4. STOCK OPTIONS. Beginning with the year 2001, Executive will be granted
each year options to purchase 100,000 to 160,000 shares of Company as
determined by the Board or its Compensation Committee in its sole
discretion. The number of shares will be appropriately adjusted for any
change in the shares or extraordinary distributions. These options will
be granted at the same time options are granted generally to other
senior executives of Company. The exercise price of these options will
be the market price of the shares at time of grant. The options will
otherwise have terms similar to the terms of the option granted to
Executive on April 29, 1999.
5. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated by Company by written notice to
Executive only by adoption by the Board of Directors of a resolution
approved by directors constituting a majority of all of the directors
then holding office. The termination will not be effective until two
years after written notice of termination is given Executive unless
termination is for "Good Cause." "Good Cause" shall mean (i)
Executive's conviction of any embezzlement or any felony involving
fraud or breach of trust relating to the performance of Executive's
duties for Company, (ii) Executive's willful engagement in gross
misconduct in the performance of Executive's duties, (iii) Executive's
death, or (iv) permanent disability which materially impairs
Executive's performance of Executive's duties and qualifies Executive
for full benefits under Company's long term disability insurance
policy.
(b) Executive may terminate this Agreement by giving Company written
notice of termination. The termination will not be effective until two
years after written notice is given Company unless termination is for
"Good Reason." "Good Reason" shall exist if (i) Company continues in
material breach of this Agreement for more than thirty (30) days after
being notified in writing by Executive of such breach, provided
Executive has given such notice to Company within thirty (30) days of
first becoming aware of the facts constituting such breach, (ii)
Company gives Executive a notice of termination without "Good Cause" as
specified above, provided Executive terminates this Agreement within 30
days of receiving such notice, or (iii) a "Change of Control" occurs,
and Executive's employment hereunder is terminated by Company other
than for "Good Cause" or by Executive for any reason. A "Change of
Control" shall mean any person, as such term is used in section 13(d)
of and 14(d) of the Securities Exchange Act of 1934, amended (the
"Exchange Act"), is or becomes the "beneficial owner" (as defined in
Rule 13(d)-3 under the Exchange Act) of securities of Company
representing more than 25% of the combined voting power of Company's
then outstanding voting securities.
(c) If Executive terminates this Agreement and simultaneously therewith
his employment by Company for good Reason, all of Executive's stock
options outstanding and unexercised at the Termination Date (except for
the option granted on February 10, 1998 which shall continue to
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be governed by the terms of that option) shall become immediately and
fully exercisable as of the Termination Date, and Company for a period
of two years from such termination (the "Severance Period") shall
continue to provide to Executive (a) his Base Compensation, at the rate
most recently determined, (b) a Bonus for each fiscal year (and a pro
rata amount for each partial year) in an amount equal to the most
recent Bonus paid or payable to Executive prior to the Termination Date
and (c) the Benefit Plans as provided by Section 3 (subject in the case
of long-term disability to the availability of such coverage under
Company's insurance policy).
(d) The parties agree that the payments and benefits provided for in
subsection (c) of this Section shall be deemed to constitute liquidated
damages for Company's breach or constructive breach of this Agreement
and payment for the non-competition provisions of this Agreement, and
Company agrees that (i) Executive shall not be required to mitigate his
damages by seeking other employment or otherwise, and (ii) Company's
payments and other obligations under this Agreement shall not be
reduced in any way by reason of any compensation received by Executive
from sources other than Company after the Termination Date, except as
otherwise expressly provided herein.
6. SPECIAL BONUS. On June 30, 2001, without regard to whether Executive is
employed by Company or this Agreement has been terminated, provided
that Executive prior thereto has not given Company notice of
termination without Good Reason, Company will pay Executive a special
bonus of $750,000.
7. NON-COMPETITION COVENANT. Executive agrees that throughout his
employment hereunder and during the Severance Period he will not
directly or indirectly, alone or as a member of partnership,
association or joint venture or as an employee, officer, director or
stockholder of any corporation or in any other capacity:
(a) engage in any activity which is competitive with the
business of Company in the United States or in any foreign
county in which Company is carrying on such business,
provided that the foregoing provision shall not be deemed
to prohibit Executive from purchasing for investment any
securities or interest in any publicly-owned organization
which is competitive with the business of Company so long
as his investment in any such organization does not exceed
one percent of its total equity; or
(b) solicit in connection with any activity which is
competitive with Company, any customers or suppliers which
he solicited on behalf of Company or on behalf of the
business of Company.
8. TAXES. Company will timely pay to Executive the amount of any excise
taxes imposed on Executive under Section 4999 of the Internal Revenue
Code as currently written by reason of payments or benefits under the
provisions of this Agreement, including this provision, and the amount
of any federal and state income taxes imposed on Executive by reason of
payments to Executive under this Section.
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9. NOTICE. Any Notices given hereunder shall be in writing and shall be
given by personal delivery or by certified or registered mail, return
receipt requested, addressed to:
If to Company: If to Executive:
ANTEC Corporation Current address in
00000 Xxxxxxxxxx Xxxxxx the records of the
Xxxxxx, Xxxxxxx 00000 Company
or such other address as shall be furnished in writing by one party to
the other.
10. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if the
invalid or unenforceable provision has been omitted.
11. ASSIGNMENT. Company's obligations hereunder shall be binding legal
obligations of any successor to all or substantially all of Company's
business by purchase, merger, consolidation or otherwise. Company may
not sell or otherwise dispose of all or substantially all of its assets
or merge or consolidate with any other entity without making adequate
provision for its obligations hereunder. Except in accordance with
foregoing, neither party may assign this Agreement, provided that upon
Executive's death, this Agreement shall be binding upon and inure to
the benefit of Executive's heirs, legatees and the legal representative
of each.
12. APPLICABLE LAW. This Agreement shall be construed and interpreted
pursuant to the laws of Georgia.
13. AMENDMENT. This Agreement may be amended only by a written document
signed by both parties.
14. PRIOR AGREEMENTS. This Agreement supersedes any agreements relating to
the option granted Executive on February 10, 1998 that are not set
forth in that option.
15. LEGAL FEES. The prevailing party in any litigation concerning this
Agreement shall be reimbursed by the party found to be in breach of
this Agreement for all reasonable costs, including attorney fees,
incurred by the prevailing party in enforcing this Agreement
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
ANTEC CORPORATION
By:
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Its:
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