EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of August 1, 1997, by and
between Telebyte Technology, Inc., a Nevada corporation (the "Company") and Xxxx
X. Xxxxxx (the "Executive").
RECITALS:
1. The Company wishes to employ the Executive upon the terms and
subject to the conditions set forth in this Agreement.
2. The Executive is willing to serve in the employ of the Company upon
the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1. EMPLOYMENT; DUTIES.
(a) The Company hereby employs the Executive as President, and
the Executive hereby accepts such employment.
(b) In his capacity as President, the Executive shall have
such responsibilities and duties consistent with his respective
position, and of such a nature as are usually associated with his
office as may be designated from time to time by the Board of Directors
of the Company (the "Board of Directors").
(c) The Executive shall faithfully and diligently discharge
his duties hereunder and use his best efforts to implement the policies
established by the Board of Directors. In the performance of his duties
and functions under this Agreement, the Executive shall devote such
time as is consistent with his position as President.
2. TERM.
(a) Initial Term. Unless renewed or sooner terminated as
provided herein, the initial term (the "Initial Term") of this
Agreement shall begin on the date hereof and shall continue for a
period of three (3) years.
(b) Renewal Term. After the expiration of the Initial Term,
this Agreement shall be deemed renewed for a successive three (3) year
term, and thereafter for successive two year terms (such three (3) year
term and each successive two (2) year term being hereinafter referred
to as a "Renewal Term"), unless the Company or the Executive gives
written notice to the other on or prior to the date which is one (1)
year prior to the end of the Initial Term or any Renewal Term, of the
election to terminate this Agreement at the end of the Initial Term or
the then current Renewal Term. The Initial Term and any Renewal Terms
shall be hereinafter collectively referred to as the "Employment Term".
3. COMPENSATION.
Salary. The Company shall pay the Executive an annual base
gross salary for the services to be rendered by him from the date
hereof at the annual rate of not less than $117,810, as determined by
the Board of Directors, payable in periodic installments in accordance
with the Company's regular payroll practices as in effect from time to
time ("Salary"). The Salary may be increased (but not decreased) from
time to time by the Board of Directors, and shall in any event be
subject to annual review at the meeting of the Board of Directors
immediately following the annual meeting of the shareholders of the
Company.
Incentive Compensation. The Executive shall be entitled to an annual
performance bonus as may be determined by the Board of Directors,
in its sole discretion.
4. BENEFITS.
(a) Benefit Plans. The Executive shall be entitled to
participate in and receive the benefits under any pension,
profit-sharing, bonus, stock purchase, stock option, stock bonus,
health, life, accident and disability insurance plans or programs and
any other employee benefit or fringe benefit plans, perquisites or
arrangements which the Company makes available generally to other
employees, including, without limitation, to the senior executive
officers of the Company, to the extent that the Executive is otherwise
eligible to participate in such plans or arrangements pursuant to the
provisions of such plans or arrangements as they may be in effect from
time to time, and, containing terms and benefits at least as favorable
to the Executive as those upon which any other senior executive officer
of the Company may have rights to participate in.
(b) Automobile. The Company shall provide the Executive with a
leased vehicle for use by the Executive. In addition, the Company shall
also pay for insurance, maintenance, fuel and other costs incurred by
the Executive in the use and maintenance of such a vehicle.
(c) Life Insurance; Medical Benefits.
(i) The Company shall, at its own cost and
expense, continue to maintain the present term life
insurance policy on the life of the Executive in the
amount of $500,000, payable to such beneficiary or
beneficiaries as the Executive may designate, and,
shall provide medical benefits at least equivalent to
those benefits which the Executive heretofore
received, for the period required herein.
(ii) In the event the present term life
insurance referred to in (c)(i) above is terminated,
and such termination is due to a default by the
Company under such policy or is otherwise the fault
of the Company, the Company shall obtain an
equivalent life insurance policy and maintain such
life insurance policy for the period required herein.
In the event the present term life insurance referred
to in (c)(i) above is terminated, and such
termination is not the result of any action or
inaction by the Company, the Company shall purchase
such term life insurance as shall be available at a
cost equivalent to the premium being paid for the
present term life insurance, and maintain the same
for the period required herein.
Vacation and Holidays. The Executive shall be entitled to four
(4) weeks paid vacation during each year of the Employment Term hereof.
To the extent the Executive shall not take four (4) weeks vacation
during any year, the unused time shall accrue and carry forward to
future years. Upon termination of the Executive's employment for any
reason, the Executive shall receive a cash payment for any accrued but
unused vacation up to a maximum of six months. The Executive shall be
entitled to such holidays and sick days as determined by the Company's
policy with respect to senior executive officers in effect on the date
hereof, and as amended.
(e) Expenses. The Company shall pay or reimburse the Executive
for all reasonable expenses actually incurred or paid by the Executive
in the performance of his services hereunder (including 100% of
reasonable travel and entertainment expenses), provided, that the
Executive submits expense statements or vouchers or such other
supporting information as the Company may reasonably require of the
Executive.
5. TERMINATION OF EMPLOYMENT.
Notwithstanding the provisions of paragraph 2 hereof, this
Agreement may be terminated as follows:
(i) Upon Notice. At the end of the
Employment Term with respect to which notice is given
by the Executive or the Company pursuant to paragraph
2(a) hereof.
(ii) Death. The Executive's employment
hereunder shall terminate automatically as of the
date of his death.
(iii) Disability. The Company may terminate
the Executive's employment hereunder after having
established the Executive's "Disability" (as defined
below), by giving the Executive written notice of its
intention to terminate the Executive's employment due
to such Disability. The date of Disability shall be
the day on which the Executive receives notice from
the Company in accordance with Section 8(f) hereof.
For purposes of this Agreement, "Disability" means
the Executive's inability to perform substantially
his duties and responsibilities to the Company by
reason of a physical or mental incapacity or
infirmity (i) for a continuous period of one hundred
and twenty (120) days, not including any permitted
vacation days, holidays or sick days; or (ii) for a
cumulative period of one hundred and twenty (120)
days in any twelve month period, not including
permitted vacation days, holidays or sick days; or
(iii) at such earlier time as the Executive submits
medical evidence satisfactory to the Company that the
Executive has a physical or mental disability or
infirmity that will likely prevent the Executive from
substantially performing his duties and
responsibilities for one hundred and twenty (120)
days or longer. In the event of any disagreement
between the Executive and the Company, as to whether
the Executive is physically or mentally incapacitated
so as to constitute a "Disability" hereunder, the
question of such incapacity shall be submitted to an
impartial and reputable physician selected by mutual
agreement of the Company and the Executive, or
failing such agreement, selected by two physicians
(one of whom shall have been selected by the Company,
and the other by the Executive), and the
determination of the question of such incapacity by
such physician shall be final and binding upon the
Company, as the case may be, and the Executive. The
Company shall pay the fees and expenses of such
physician, and the Executive shall submit to any
medical examinations reasonably necessary to enable
such physician to make a determination as to whether
the Executive's incapacity constitutes a Disability
hereunder.
(iv) Cause. The Company shall have the right
to terminate the Executive's employment for "Cause".
For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure by the
Executive to perform substantially his duties to the
Company (other than any such failure resulting from
his Disability) within a reasonable period of time
after a written demand for substantial performance is
delivered to the Executive by the Board of Directors,
which demand specifically identifies the manner in
which the Board of Directors, believes that the
Executive has not substantially performed his duties;
(ii) the willful misconduct by the Executive in the
performance of his duties to the Company; (iii) the
grossly negligent performance by the Executive of his
duties to the Company, if such grossly negligent
performance is determined by the Board of Directors,
to have had or to be reasonably likely to have a
material adverse effect on the business, assets,
prospects or financial condition of the Company, or
(iv) material breach by the Executive of Section 7
hereof.
(v) Termination For Good Reason. The
Executive may terminate his employment under this
Agreement for "Good Reason." For purposes of this
Agreement, "Good Reason" shall mean, without the
Executive's express written consent, (i) a
substantial alteration in the nature or status of the
Executive's responsibilities from those contemplated
by Section 1(a) or the assignment to the Executive of
any duties inconsistent with the Executive's status
as , or (ii) a reduction in the Executive's
compensation from that contemplated by Section 3(a)
(as the same may be increased from time to time).
(vi) Transfer Event. The Executive shall
have the right to terminate this Agreement upon
thirty days prior written notice to the Company, or
any successor of the Company, as the case may be, in
the event of a "Transfer Event" (as defined below).
For purposes of this Agreement, "Transfer Event"
means:
(A) a transfer of substantially all of the
assets of the Company, (B) a change in control of the
board of directors of the Company pursuant to which
any single Person or two or more Persons acting in
concert (other than one or more Affiliates of the
Company on the date hereof) acquires control of such
board of directors or (C) the Transfer of at least
51% or more of the voting equity interests in the
Company (or any parent of the Company), whether by
sale, merger, consolidation or otherwise, to any
single Person or two or more Persons acting in
concert; provided that two or more Persons shall be
considered to be acting in concert for purposes of
clauses (B) and (C) hereof only if such Persons would
have been considered to be acting in concert as a
"group" for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, for such
purposes treating voting equity interests of the
Company held or acquired by such Persons as if such
voting equity interests were equity securities in
respect of which a Schedule 13D would be required to
be filed with the Securities and Exchange Commission
and as if the requisite percentage and other
threshold conditions to such filing were satisfied;
provided, further, that a "Transfer Event" shall not
include a pledge of the voting equity interests in
the Company to the holders of debt financing or any
refinancing thereof (but not a Transfer arising from
the exercise of such holders rights under such
pledge). For purposes of this Section 5(a)(vi):
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
governmental body.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common
control with such Person.
"Transfer" means sell, transfer, convey, lease and/or deliver (other tenses
of the term have similar meaning) or sale, transfer, assignment,
conveyance, lease and/or delivery, as indicated by the context.
(b) In the event that this Agreement is terminated pursuant to
Section (a) above, the Executive shall be released from any further
obligations under Section 1 hereof, and the Company shall be released
from any further obligations hereunder, except for obligations accrued
to the date of termination. Termination of this Agreement pursuant to
Section 5(a) and shall in no way abrogate or relieve the Executive of
his obligations under Section 7 hereof.
EFFECT OF TERMINATION.
(a) Upon and following termination of the Executive's
employment because of death as provided in subsection 5(a)(ii) above,
the Company shall (i) continue to pay to the Executive's spouse the
amount of the Executive's Salary as provided in Section 3(a) at the
rate in effect immediately prior to termination of his employment, for
a period of one (1) year from the date of termination of the
Executive's employment, (ii) continue to provide medical benefits
equivalent to the medical benefits contemplated in Section 4(a) hereof
for the Executive's spouse for a period of one (1) year from the date
of termination of the Executive's employment, and (iii) continue to
provide an automobile as contemplated in Section 4(b) hereof, to the
Executive's spouse for a period of twelve (12) months from the date of
termination of the Executive's employment.
(b) Upon and following termination of the Executive's
employment because of Disability as provided in subsection 5(a)(iii)
above, the Company shall (i) continue to pay the Executive, or, in the
event of the death of the Executive, his spouse in the event of her
death subsequent to that of the Executive's, as the case may be, the
amount of the Executive's Salary as provided in Section 3(a) at the
rate in effect immediately prior to termination of his employment, for
a period of twelve (12) months, less the amount of any disability
payments made by the Company or any Company plan, (ii) continue to
provide medical benefits equivalent to the medical benefits
contemplated in Section 4(a) hereof and to maintain the term life
insurance contemplated in Section 4(c) hereof for a period of one year
from the date of termination of the Executive's employment, and (iii)
continue to provide an automobile as contemplated in Section 4(b)
hereof for a period of twelve (12) months from the date of termination
of the Executive's employment.
(c) In the event Executive's employment is terminated by the
Executive for Good Reason or upon the occurrence of a Transfer Event,
or by the Company other than for death, Disability or Cause, the
Company shall make a lump sum payment to the Executive of the Salary
for the remainder of the Employment Term (or in the event of the
subsequent death of the Executive to his spouse) and, shall continue to
provide medical benefits equivalent to the medical benefits
contemplated in Section 4(a) hereof, and to maintain the term life
insurance contemplated by Section 4(c) hereof for such period.
Notwithstanding anything to the contrary contained in this
Agreement, in the event of a termination by the Company of the
Executive's employment hereunder, or the termination by the Executive
of his employment for Good Cause or upon the occurrence of a Transfer
Event, the Executive shall not be required to seek other employment in
mitigation of his damages, nor shall the possibility or fact of any
other such employment and the compensation which the Executive might
reasonably be expected to receive, actually receives, or to which the
Executive becomes entitled, by reason thereof, be considered as
mitigating his damages.
7. COVENANTS.
(a) In view of the fact that the Company is engaged in
specialized businesses, which businesses are conducted throughout the
world, and the information, research and marketing data developed by
the Company or any of its subsidiaries or affiliates are confidential,
the Executive agrees that, during his employment and for a period of
one (1) year from the termination of his employment with the Company,
he will not (i) directly or indirectly engage in the business
substantially conducted by the Company at the date of such termination,
either for himself or for any person, employer, business or other
entity in competition with the Company, (ii) engage in any such
business on his own account, or (iii) become interested in any such
business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, employee, trustee,
consultant or in any other relationship or capacity; provided, however,
that ownership of less than 5% of any class of outstanding securities
of a company registered pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended, shall not be deemed to constitute
engaging, participating in, or becoming interested in any such
business.
(b) During his employment and for a period of one (1) year
thereafter, the Executive and any entity controlled by the Executive
shall not, directly or indirectly, (i) make any false or malicious
statement, oral or written, which is injurious to the business,
reputation or operations of the Company, its officers or directors, as
applicable, or which may interfere with the good will of the Company or
its relations with its customers and suppliers, or (ii) solicit,
interfere with, hire, offer to hire or induce any person who is an
officer, employee or agent of the Company to discontinue his or her
relationship with the Company or any subsidiary or affiliate of the
Company, or to accept employment by any other entity or person.
(c) The Executive agrees to keep secret and retain in the
strictest confidence all confidential matters which relate to the
Company, including, without limitation, customer lists, trade secrets,
pricing policies and other confidential business affairs of the Company
and any of its subsidiaries or affiliates ("Confidential Information")
learned by him from the Company or any of its subsidiaries affiliates
and not to disclose any such Confidential information to anyone outside
the Company or any of its affiliates, whether during or after his
period of service with the Company, except in the course of performing
his duties hereunder; provided, however, Confidential Information shall
not include information that (i) is known generally by the public on
the date of the Executive's termination, (ii) has otherwise come into
the public domain without a breach by the Executive, under this
Agreement, or (iii) is required to be disclosed pursuant to applicable
Federal, state or local laws or judicial process. Upon request by the
Company, the Executive agrees to deliver promptly to the Company upon
termination of his employment, or at any time thereafter as the Company
may request, all Company memoranda, notes, records, reports, manuals,
drawings, designs, computer files in any media and other documents (and
all copies thereof) containing such Confidential Information and all
property of the Company or any of its subsidiaries or affiliates which
the Executive may then possess or have under his control.
(d) The Executive agrees that all processes, technologies and
inventions, including new contributions, improvements, formats,
packages, programs, systems, machines, compositions of matter
manufactured, developments, applications and discoveries which are
related in any manner to the business (commercial or experimental) of
the Company during the term of the Executive's employment, whether
patentable or not, conceived, developed, invented or made by the
Executive, or by the Executive jointly with others during the term of
his employment with the Company, or by the Company or its affiliates or
on their behalf (collectively, "New Developments"), shall belong to the
Company, and, the Company shall have the sole right to all proceeds
arising from or related to such New Developments. The Executive shall
further: (a) promptly disclose such New Developments to the Company;
(b) assign to the Company, without additional compensation, all patent
or other rights to such New Developments for the United States and
foreign countries; (c) sign all papers necessary to carry out the
foregoing; and (d) give testimony in support of his inventorship, all
at the sole cost and expense of the Company.
(e) If the Executive commits a material breach of any of the
provisions of this Section 7, the Company shall have the right and
remedy to have the provisions of this Agreement specifically enforced
by any court of competent jurisdiction, it being acknowledged and
agreed to by the Executive that any such breach will cause irreparable
injury to the Company and that money damages will not provide an
adequate remedy to the Company. Such rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies
available to the Company at law or in equity. The provisions of this
Section 7 shall survive the expiration or termination of this
Agreement.
(f) Although the restrictions contained in this Section 7 are
considered to be fair and reasonable in the circumstances, it is
recognized that restrictions of the nature contained in this Section 7
may fail for technical reasons; accordingly, if any of such
restrictions shall be adjudged to be void or unenforceable for whatever
reason, but would be valid if part of the wording thereof were deleted,
or the period thereof reduced or the area dealt with thereby reduced in
scope, the restrictions contained in this Section 7 shall apply, at the
election of the Company, with such modifications as may be necessary to
make them valid, effective and enforceable, in the particular
jurisdiction in which such restrictions are adjudged to be void or
unenforceable.
8. MISCELLANEOUS.
This Agreement or any rights or obligations hereunder may not
be assigned by any of the parties hereto without the prior written
consent of the other parties; provided, however, that this Agreement
shall inure to the benefit of and be binding upon the successors and
assigns of the Company upon any sale of all or substantially all of the
Company's assets, or upon any merger or consolidation of the Company
with or into any other corporation, all as though such successors and
assigns of the Company and their respective successors and assigns were
the Company, as the case may be.
(b) This Agreement and the relationships of the parties in
connection with the subject matter of this Agreement shall be construed
and enforced according to the laws of the State of New York without
giving effect to the conflict of laws rules thereof.
This Agreement contains the full and complete agreement of the
parties relating to the employment of the Executive hereunder and
supersedes all prior agreements, arrangements or understandings,
whether written or oral, relating thereto. Neither this Agreement, nor
any provision hereof, may be amended, modified, waived or supplemented
by written instrument signed by the parties hereto, and a written
waiver of any of the provisions shall be valid and effective only if
signed by each of the parties hereto and shall be valid and effective
only in the instance for which given.
If any provision of this Agreement is held to be invalid or
enforceable by any judgment of a tribunal of competent jurisdiction,
the remainder of this Agreement shall not be affected by such judgment,
and this Agreement shall be carried out as near to its original terms
and intent as possible.
All provisions of this Agreement which, by their nature,
should survive termination of this Agreement, including, but not
limited to, Section 7, shall survive said termination.
All notices, requests and demands given to or made upon the
respective parties hereto shall be deemed to have been received five
(5) business days after the date of mailing when mailed by certified
mail, postage prepaid, or one business day after the date of delivery
by a recognized overnight delivery service, or, upon receipt of
confirmation of transmission when sent by telecopier, addressed to the
parties at their addresses set forth below or to such other addresses
furnished by notice given in accordance with this subsection (f): (a)
if to the Company, to Telebyte Technologies, Inc., 000 Xxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000, Telecopier No.: (000) 000-0000 Attention:
Board of Directors, and (b) if to the Executive, at his address set
forth on the signature page hereof.
No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.
(h) The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or
construction of this Agreement.
This Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, but when taken together as a
whole shall constitute one and the same instrument.
The Company may withhold from any amounts payable under this
Agreement, any federal, state and local income taxes, social security
taxes and other taxes and deductions as required by applicable law.
(k) (i) The Executive and the Company agree and consent that
(A) any controversy or claim arising out of or relating to this
Agreement, its scope, or the breach or interpretation of any provision
hereof shall be settled by arbitration before a panel of three (3)
arbitrators and otherwise in accordance with the rules then obtaining
of the American Arbitration Association; (B) such arbitration shall be
held in the City of Happaugue, County of Suffolk and State of New York;
(C) the award in any such arbitration shall be final, binding and
conclusive; and (D) judgment on any award of any such arbitration,
including, but not limited to specific performance, may be entered in
any court having jurisdiction thereof. Notice of any arbitration shall
be sufficient if given in accordance with Section 8(f) hereof.
(ii) In connection with any proceeding by the
Executive to recover payments allegedly due and not paid to the
Executive under Sections 3 or 6 hereof, the prevailing party with
respect to the claim for payment of such amounts shall be entitled to
reimbursement for reasonable counsel's fees and reasonable
disbursements.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
TELEBYTE TECHNOLOGY, INC.
By: ____________\s\_______________
Name: Xxxx X. Xxxxxx
Title: President
___________\s\_______________
Xxxx X. Xxxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of August 1, 1997, by and
between Telebyte Technology, Inc., a Nevada corporation (the "Company") and
Xxxxxxx X. Xxxxxxxxx (the "Executive").
RECITALS:
1. The Company wishes to employ the Executive upon the terms and
subject to the conditions set forth in this Agreement.
2. The Executive is willing to serve in the employ of the Company upon
the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1. EMPLOYMENT; DUTIES.
(a) The Company hereby employs the Executive as Vice
President, Treasurer and Secretary, and the Executive hereby accepts
such employment.
(b) In his capacity as Vice President, Treasurer and
Secretary, the Executive shall have such responsibilities and duties
consistent with his respective position, and of such a nature as are
usually associated with his office as may be designated from time to
time by the Board of Directors of the Company (the "Board of
Directors").
(c) The Executive shall faithfully and diligently discharge
his duties hereunder and use his best efforts to implement the policies
established by the Board of Directors. In the performance of his duties
and functions under this Agreement, the Executive shall devote such
time as is consistent with his position as Vice President, Treasurer
and Secretary.
2. TERM.
(a) Initial Term. Unless renewed or sooner terminated as
provided herein, the initial term (the "Initial Term") of this
Agreement shall begin on the date hereof and shall continue for a
period of three (3) years.
(b) Renewal Term. After the expiration of the Initial Term,
this Agreement shall be deemed renewed for a successive three (3) year
term, and thereafter for successive two year terms (such three (3) year
term and each successive two (2) year term being hereinafter referred
to as a "Renewal Term"), unless the Company or the Executive gives
written notice to the other on or prior to the date which is one (1)
year prior to the end of the Initial Term or any Renewal Term, of the
election to terminate this Agreement at the end of the Initial Term or
the then current Renewal Term. The Initial Term and any Renewal Terms
shall be hereinafter collectively referred to as the "Employment Term".
3. COMPENSATION.
Salary. The Company shall pay the Executive an annual base
gross salary for the services to be rendered by him from the date
hereof at the annual rate of not less than $105,159, as determined by
the Board of Directors, payable in periodic installments in accordance
with the Company's regular payroll practices as in effect from time to
time ("Salary"). The Salary may be increased (but not decreased) from
time to time by the Board of Directors, and shall in any event be
subject to annual review at the meeting of the Board of Directors
immediately following the annual meeting of the shareholders of the
Company.
Incentive Compensation. The Executive shall be entitled to
an annual performance bonus as may be determined by the Board of
Directors, in its sole discretion.
4. BENEFITS.
(a) Benefit Plans. The Executive shall be entitled to
participate in and receive the benefits under any pension,
profit-sharing, bonus, stock purchase, stock option, stock bonus,
health, life, accident and disability insurance plans or programs and
any other employee benefit or fringe benefit plans, perquisites or
arrangements which the Company makes available generally to other
employees, including, without limitation, to the senior executive
officers of the Company, to the extent that the Executive is otherwise
eligible to participate in such plans or arrangements pursuant to the
provisions of such plans or arrangements as they may be in effect from
time to time, and, containing terms and benefits at least as favorable
to the Executive as those upon which any other senior executive officer
of the Company may have rights to participate in.
(b) Automobile. The Company shall provide the Executive with a
leased vehicle for use by the Executive. In addition, the Company shall
also pay for insurance, maintenance, fuel and other costs incurred by
the Executive in the use and maintenance of such a vehicle.
(c) Life Insurance; Medical Benefits.
(i) The Company shall, at its own cost and
expense, continue to maintain the present term life
insurance policy on the life of the Executive in the
amount of $250,000, payable to such beneficiary or
beneficiaries as the Executive may designate, and,
shall provide medical benefits at least equivalent to
those benefits which the Executive heretofore
received, for the period required herein.
(ii) In the event the present term life
insurance referred to in (c)(i) above is terminated,
and such termination is due to a default by the
Company under such policy or is otherwise the fault
of the Company, the Company shall obtain an
equivalent life insurance policy and maintain such
life insurance policy for the period required herein.
In the event the present term life insurance referred
to in (c)(i) above is terminated, and such
termination is not the result of any action or
inaction by the Company, the Company shall purchase
such term life insurance as shall be available at a
cost equivalent to the premium being paid for the
present term life insurance, and maintain the same
for the period required herein.
Vacation and Holidays. The Executive shall be entitled to four
(4) weeks paid vacation during each year of the Employment Term hereof.
To the extent the Executive shall not take four (4) weeks vacation
during any year, the unused time shall accrue and carry forward to
future years. Upon termination of the Executive's employment for any
reason, the Executive shall receive a cash payment for any accrued but
unused vacation up to a maximum of six months. The Executive shall be
entitled to such holidays and sick days as determined by the Company's
policy with respect to senior executive officers in effect on the date
hereof, and as amended.
(e) Expenses. The Company shall pay or reimburse the Executive
for all reasonable expenses actually incurred or paid by the Executive
in the performance of his services hereunder (including 100% of
reasonable travel and entertainment expenses), provided, that the
Executive submits expense statements or vouchers or such other
supporting information as the Company may reasonably require of the
Executive.
5. TERMINATION OF EMPLOYMENT.
Notwithstanding the provisions of paragraph 2 hereof, this
Agreement may be terminated as follows:
(i) Upon Notice. At the end of the
Employment Term with respect to which notice is given
by the Executive or the Company pursuant to paragraph
2(a) hereof.
(ii) Death. The Executive's employment
hereunder shall terminate automatically as of the
date of his death.
(iii) Disability. The Company may terminate
the Executive's employment hereunder after having
established the Executive's "Disability" (as defined
below), by giving the Executive written notice of its
intention to terminate the Executive's employment due
to such Disability. The date of Disability shall be
the day on which the Executive receives notice from
the Company in accordance with Section 8(f) hereof.
For purposes of this Agreement, "Disability" means
the Executive's inability to perform substantially
his duties and responsibilities to the Company by
reason of a physical or mental incapacity or
infirmity (i) for a continuous period of one hundred
and twenty (120) days, not including any permitted
vacation days, holidays or sick days; or (ii) for a
cumulative period of one hundred and twenty (120)
days in any twelve month period, not including
permitted vacation days, holidays or sick days; or
(iii) at such earlier time as the Executive submits
medical evidence satisfactory to the Company that the
Executive has a physical or mental disability or
infirmity that will likely prevent the Executive from
substantially performing his duties and
responsibilities for one hundred and twenty (120)
days or longer. In the event of any disagreement
between the Executive and the Company, as to whether
the Executive is physically or mentally incapacitated
so as to constitute a "Disability" hereunder, the
question of such incapacity shall be submitted to an
impartial and reputable physician selected by mutual
agreement of the Company and the Executive, or
failing such agreement, selected by two physicians
(one of whom shall have been selected by the Company,
and the other by the Executive), and the
determination of the question of such incapacity by
such physician shall be final and binding upon the
Company, as the case may be, and the Executive. The
Company shall pay the fees and expenses of such
physician, and the Executive shall submit to any
medical examinations reasonably necessary to enable
such physician to make a determination as to whether
the Executive's incapacity constitutes a Disability
hereunder.
(iv) Cause. The Company shall have the right
to terminate the Executive's employment for "Cause".
For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure by the
Executive to perform substantially his duties to the
Company (other than any such failure resulting from
his Disability) within a reasonable period of time
after a written demand for substantial performance is
delivered to the Executive by the Board of Directors,
which demand specifically identifies the manner in
which the Board of Directors, believes that the
Executive has not substantially performed his duties;
(ii) the willful misconduct by the Executive in the
performance of his duties to the Company; (iii) the
grossly negligent performance by the Executive of his
duties to the Company, if such grossly negligent
performance is determined by the Board of Directors,
to have had or to be reasonably likely to have a
material adverse effect on the business, assets,
prospects or financial condition of the Company, or
(iv) material breach by the Executive of Section 7
hereof.
(v) Termination For Good Reason. The
Executive may terminate his employment under this
Agreement for "Good Reason." For purposes of this
Agreement, "Good Reason" shall mean, without the
Executive's express written consent, (i) a
substantial alteration in the nature or status of the
Executive's responsibilities from those contemplated
by Section 1(a) or the assignment to the Executive of
any duties inconsistent with the Executive's status
as , or (ii) a reduction in the Executive's
compensation from that contemplated by Section 3(a)
(as the same may be increased from time to time).
(vi) Transfer Event. The Executive shall
have the right to terminate this Agreement upon
thirty days prior written notice to the Company, or
any successor of the Company, as the case may be, in
the event of a "Transfer Event" (as defined below).
For purposes of this Agreement, "Transfer Event"
means:
(A) a transfer of substantially all of the
assets of the Company, (B) a change in control of the
board of directors of the Company pursuant to which
any single Person or two or more Persons acting in
concert (other than one or more Affiliates of the
Company on the date hereof) acquires control of such
board of directors or (C) the Transfer of at least
51% or more of the voting equity interests in the
Company (or any parent of the Company), whether by
sale, merger, consolidation or otherwise, to any
single Person or two or more Persons acting in
concert; provided that two or more Persons shall be
considered to be acting in concert for purposes of
clauses (B) and (C) hereof only if such Persons would
have been considered to be acting in concert as a
"group" for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, for such
purposes treating voting equity interests of the
Company held or acquired by such Persons as if such
voting equity interests were equity securities in
respect of which a Schedule 13D would be required to
be filed with the Securities and Exchange Commission
and as if the requisite percentage and other
threshold conditions to such filing were satisfied;
provided, further, that a "Transfer Event" shall not
include a pledge of the voting equity interests in
the Company to the holders of debt financing or any
refinancing thereof (but not a Transfer arising from
the exercise of such holders rights under such
pledge). For purposes of this Section 5(a)(vi):
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
governmental body.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common
control with such Person.
"Transfer" means sell, transfer, convey, lease and/or deliver (other tenses
of the term have similar meaning) or sale, transfer, assignment,
conveyance, lease and/or delivery, as indicated by the context.
(b) In the event that this Agreement is terminated pursuant to
Section (a) above, the Executive shall be released from any further
obligations under Section 1 hereof, and the Company shall be released
from any further obligations hereunder, except for obligations accrued
to the date of termination. Termination of this Agreement pursuant to
Section 5(a) and shall in no way abrogate or relieve the Executive of
his obligations under Section 7 hereof.
EFFECT OF TERMINATION.
(a) Upon and following termination of the Executive's
employment because of death as provided in subsection 5(a)(ii) above,
the Company shall (i) continue to pay to the Executive's spouse the
amount of the Executive's Salary as provided in Section 3(a) at the
rate in effect immediately prior to termination of his employment, for
a period of one (1) year from the date of termination of the
Executive's employment, (ii) continue to provide medical benefits
equivalent to the medical benefits contemplated in Section 4(a) hereof
for the Executive's spouse for a period of one (1) year from the date
of termination of the Executive's employment, and (iii) continue to
provide an automobile as contemplated in Section 4(b) hereof, to the
Executive's spouse for a period of twelve (12) months from the date of
termination of the Executive's employment.
(b) Upon and following termination of the Executive's
employment because of Disability as provided in subsection 5(a)(iii)
above, the Company shall (i) continue to pay the Executive, or, in the
event of the death of the Executive, his spouse in the event of her
death subsequent to that of the Executive's, as the case may be, the
amount of the Executive's Salary as provided in Section 3(a) at the
rate in effect immediately prior to termination of his employment, for
a period of twelve (12) months, less the amount of any disability
payments made by the Company or any Company plan, (ii) continue to
provide medical benefits equivalent to the medical benefits
contemplated in Section 4(a) hereof and to maintain the term life
insurance contemplated in Section 4(c) hereof for a period of one year
from the date of termination of the Executive's employment, and (iii)
continue to provide an automobile as contemplated in Section 4(b)
hereof for a period of twelve (12) months from the date of termination
of the Executive's employment.
(c) In the event Executive's employment is terminated by the
Executive for Good Reason or upon the occurrence of a Transfer Event,
or by the Company other than for death, Disability or Cause, the
Company shall make a lump sum payment to the Executive of the Salary
for the remainder of the Employment Term (or in the event of the
subsequent death of the Executive to his spouse) and, shall continue to
provide medical benefits equivalent to the medical benefits
contemplated in Section 4(a) hereof, and to maintain the term life
insurance contemplated by Section 4(c) hereof for such period.
Notwithstanding anything to the contrary contained in this
Agreement, in the event of a termination by the Company of the
Executive's employment hereunder, or the termination by the Executive
of his employment for Good Cause or upon the occurrence of a Transfer
Event, the Executive shall not be required to seek other employment in
mitigation of his damages, nor shall the possibility or fact of any
other such employment and the compensation which the Executive might
reasonably be expected to receive, actually receives, or to which the
Executive becomes entitled, by reason thereof, be considered as
mitigating his damages.
7. COVENANTS.
(a) In view of the fact that the Company is engaged in
specialized businesses, which businesses are conducted throughout the
world, and the information, research and marketing data developed by
the Company or any of its subsidiaries or affiliates are confidential,
the Executive agrees that, during his employment and for a period of
one (1) year from the termination of his employment with the Company,
he will not (i) directly or indirectly engage in the business
substantially conducted by the Company at the date of such termination,
either for himself or for any person, employer, business or other
entity in competition with the Company, (ii) engage in any such
business on his own account, or (iii) become interested in any such
business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, employee, trustee,
consultant or in any other relationship or capacity; provided, however,
that ownership of less than 5% of any class of outstanding securities
of a company registered pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended, shall not be deemed to constitute
engaging, participating in, or becoming interested in any such
business.
(b) During his employment and for a period of one (1) year
thereafter, the Executive and any entity controlled by the Executive
shall not, directly or indirectly, (i) make any false or malicious
statement, oral or written, which is injurious to the business,
reputation or operations of the Company, its officers or directors, as
applicable, or which may interfere with the good will of the Company or
its relations with its customers and suppliers, or (ii) solicit,
interfere with, hire, offer to hire or induce any person who is an
officer, employee or agent of the Company to discontinue his or her
relationship with the Company or any subsidiary or affiliate of the
Company, or to accept employment by any other entity or person.
(c) The Executive agrees to keep secret and retain in the
strictest confidence all confidential matters which relate to the
Company, including, without limitation, customer lists, trade secrets,
pricing policies and other confidential business affairs of the Company
and any of its subsidiaries or affiliates ("Confidential Information")
learned by him from the Company or any of its subsidiaries affiliates
and not to disclose any such Confidential information to anyone outside
the Company or any of its affiliates, whether during or after his
period of service with the Company, except in the course of performing
his duties hereunder; provided, however, Confidential Information shall
not include information that (i) is known generally by the public on
the date of the Executive's termination, (ii) has otherwise come into
the public domain without a breach by the Executive, under this
Agreement, or (iii) is required to be disclosed pursuant to applicable
Federal, state or local laws or judicial process. Upon request by the
Company, the Executive agrees to deliver promptly to the Company upon
termination of his employment, or at any time thereafter as the Company
may request, all Company memoranda, notes, records, reports, manuals,
drawings, designs, computer files in any media and other documents (and
all copies thereof) containing such Confidential Information and all
property of the Company or any of its subsidiaries or affiliates which
the Executive may then possess or have under his control.
(d) The Executive agrees that all processes, technologies and
inventions, including new contributions, improvements, formats,
packages, programs, systems, machines, compositions of matter
manufactured, developments, applications and discoveries which are
related in any manner to the business (commercial or experimental) of
the Company during the term of the Executive's employment, whether
patentable or not, conceived, developed, invented or made by the
Executive, or by the Executive jointly with others during the term of
his employment with the Company, or by the Company or its affiliates or
on their behalf (collectively, "New Developments"), shall belong to the
Company, and, the Company shall have the sole right to all proceeds
arising from or related to such New Developments. The Executive shall
further: (a) promptly disclose such New Developments to the Company;
(b) assign to the Company, without additional compensation, all patent
or other rights to such New Developments for the United States and
foreign countries; (c) sign all papers necessary to carry out the
foregoing; and (d) give testimony in support of his inventorship, all
at the sole cost and expense of the Company.
(e) If the Executive commits a material breach of any of the
provisions of this Section 7, the Company shall have the right and
remedy to have the provisions of this Agreement specifically enforced
by any court of competent jurisdiction, it being acknowledged and
agreed to by the Executive that any such breach will cause irreparable
injury to the Company and that money damages will not provide an
adequate remedy to the Company. Such rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies
available to the Company at law or in equity. The provisions of this
Section 7 shall survive the expiration or termination of this
Agreement.
(f) Although the restrictions contained in this Section 7 are
considered to be fair and reasonable in the circumstances, it is
recognized that restrictions of the nature contained in this Section 7
may fail for technical reasons; accordingly, if any of such
restrictions shall be adjudged to be void or unenforceable for whatever
reason, but would be valid if part of the wording thereof were deleted,
or the period thereof reduced or the area dealt with thereby reduced in
scope, the restrictions contained in this Section 7 shall apply, at the
election of the Company, with such modifications as may be necessary to
make them valid, effective and enforceable, in the particular
jurisdiction in which such restrictions are adjudged to be void or
unenforceable.
8. MISCELLANEOUS.
This Agreement or any rights or obligations hereunder may not
be assigned by any of the parties hereto without the prior written
consent of the other parties; provided, however, that this Agreement
shall inure to the benefit of and be binding upon the successors and
assigns of the Company upon any sale of all or substantially all of the
Company's assets, or upon any merger or consolidation of the Company
with or into any other corporation, all as though such successors and
assigns of the Company and their respective successors and assigns were
the Company, as the case may be.
(b) This Agreement and the relationships of the parties in
connection with the subject matter of this Agreement shall be construed
and enforced according to the laws of the State of New York without
giving effect to the conflict of laws rules thereof.
This Agreement contains the full and complete agreement of the
parties relating to the employment of the Executive hereunder and
supersedes all prior agreements, arrangements or understandings,
whether written or oral, relating thereto. Neither this Agreement, nor
any provision hereof, may be amended, modified, waived or supplemented
by written instrument signed by the parties hereto, and a written
waiver of any of the provisions shall be valid and effective only if
signed by each of the parties hereto and shall be valid and effective
only in the instance for which given.
If any provision of this Agreement is held to be invalid or
enforceable by any judgment of a tribunal of competent jurisdiction,
the remainder of this Agreement shall not be affected by such judgment,
and this Agreement shall be carried out as near to its original terms
and intent as possible.
All provisions of this Agreement which, by their nature,
should survive termination of this Agreement, including, but not
limited to, Section 7, shall survive said termination.
All notices, requests and demands given to or made upon the
respective parties hereto shall be deemed to have been received five
(5) business days after the date of mailing when mailed by certified
mail, postage prepaid, or one business day after the date of delivery
by a recognized overnight delivery service, or, upon receipt of
confirmation of transmission when sent by telecopier, addressed to the
parties at their addresses set forth below or to such other addresses
furnished by notice given in accordance with this subsection (f): (a)
if to the Company, to Telebyte Technologies, Inc., 000 Xxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000, Telecopier No.: (000) 000-0000 Attention:
Board of Directors, and (b) if to the Executive, at his address set
forth on the signature page hereof.
No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.
(h) The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or
construction of this Agreement.
This Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, but when taken together as a
whole shall constitute one and the same instrument.
The Company may withhold from any amounts payable under this
Agreement, any federal, state and local income taxes, social security
taxes and other taxes and deductions as required by applicable law.
(k) (i) The Executive and the Company agree and consent that
(A) any controversy or claim arising out of or relating to this
Agreement, its scope, or the breach or interpretation of any provision
hereof shall be settled by arbitration before a panel of three (3)
arbitrators and otherwise in accordance with the rules then obtaining
of the American Arbitration Association; (B) such arbitration shall be
held in the City of Happaugue, County of Suffolk and State of New York;
(C) the award in any such arbitration shall be final, binding and
conclusive; and (D) judgment on any award of any such arbitration,
including, but not limited to specific performance, may be entered in
any court having jurisdiction thereof. Notice of any arbitration shall
be sufficient if given in accordance with Section 8(f) hereof.
(ii) In connection with any proceeding by the
Executive to recover payments allegedly due and not paid to the
Executive under Sections 3 or 6 hereof, the prevailing party with
respect to the claim for payment of such amounts shall be entitled to
reimbursement for reasonable counsel's fees and reasonable
disbursements.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
TELEBYTE TECHNOLOGY, INC.
By: __________\s\___________________
Name: Xxxx X. Xxxxxx
Title: President
__________\s\__________________
Xxxxxxx X. Xxxxxxxxx
