EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EMPLOYMENT AGREEMENT is entered into on the 15th day of August, 2006 (the “Effective
Date”), by and between Optelecom-NKF, Inc., a Delaware corporation (the “Company”), and Xxxxxx
Xxxxxxx (the “Executive”).
Recitals
WHEREAS, the Company desires to hire the Executive, and the Executive desires to work for the
Company, all pursuant to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises made below, the parties agree as
follows:
1. Employment, Duties and Acceptance.
1.1 Employment.
(a) Effective upon the Effective Date, the Company shall employ the Executive as its Chief
Financial Officer. In such capacity, the Executive shall report to the Chief Executive Officer of
the Company and shall perform such duties and assume such responsibilities as may be assigned by
the Chief Executive Officer or the Board of Directors of the Company from time to time. The
Executive accepts such employment and shall perform his duties faithfully and to the best of his
abilities.
(b) The Executive shall devote his full working time and creative energies to the performance
of his duties hereunder and will at all times devote such additional time and efforts as are
reasonably sufficient for fulfilling the significant responsibilities entrusted to him. So long as
such activities, in the aggregate, do not interfere with the performance by the Executive of his
duties hereunder, the Executive shall be permitted a reasonable amount of time to participate (as
board member, officer or volunteer) in civic, political and charitable activities.
1.2 Place of Employment. The Executive’s principal place of employment shall be in
the Washington, D.C. metropolitan area, subject to such travel as may be reasonably required by his
employment pursuant to the terms hereof. The Executive shall not be required to relocate outside
of the Washington, D.C. metropolitan area during the Term unless the Company provides relocation
benefits acceptable to the Executive in his sole discretion.
2. Term of Employment.
Unless terminated earlier in accordance with the provisions of this Agreement, the
Executive’s employment hereunder shall continue until the one (1) year anniversary of the Effective
Date (the “Term”). If on or before the expiration of the Term the Company and the Executive enter
into a subsequent employment agreement, it is the expectation of the Company that such subsequent
employment agreement would include a provision providing for the automatic renewal of such
subsequent agreement upon the expiration of the term thereof unless either party were to provide
notice of termination not less than thirty (30) days prior to the date of such expiration.
3. Compensation.
3.1 Salary. As compensation for all services to be rendered pursuant to this
Agreement, the Company shall pay to the Executive during the Term a salary of $165,000 per annum
(the “Base Salary”) less such deductions as shall be required to be withheld by applicable laws and
regulations or as otherwise authorized by the Executive. The Base Salary shall accrue from and
after the Effective Date, and shall be payable during the Term, in arrears in equal periodic
installments, in accordance with the Company’s customary payroll practices in effect at the time of
payment. The Executive’s Base Salary may be reviewed by the Board of Directors of the Company or
the Compensation Committee thereof (collectively, the “Board”) and may be increased (but not
decreased) based upon the evaluation of the Executive’s performance and the compensation policies
of the Company in effect at the time of each such review.
3.2 Incentive Compensation. The Executive will be entitled to participate in the
Company’s Incentive Bonus Plan for Plan Year 2006 (the “2006 Incentive Plan”).
Provided the Company’s annual defined goals as determined by the Board and set forth in the 2006
Incentive Plan are met, the Executive’s potential estimated bonus under the 2006
Incentive Plan would be up to 25% of the Base Salary, pro-rated for 2006 based on the number of
days employed. The Executive’s variable compensation under the 2006 Incentive Plan
would also include restricted stock and stock options to be earned according to the 2006 Incentive
Plan, as determined by the Board. In addition, during the Term, the Executive shall be
entitled to participate in any subsequent bonus or incentive plan or program adopted by the Board
in which executive officers of the Company are eligible to participate, in accordance with such
terms as are determined by the Board.
3.3
Stock
Options. As further compensation, on the Effective Date,
the Executive shall be granted non-qualified stock options to
purchase 7,500 shares of the Company’s common stock (the
“Options”). The Options shall have an exercise price equal
to the fair market value of the Company’s common stock on the
Effective Date. All of the terms of the Options shall be in
accordance with the provisions of the Optelecom-NKF, Inc Stock Option
Plan of 2002, as amended from time to time (the “Option
Plan”). The Executive acknowledges that he has been provided
with a copy of the Option Plan.
3.4 Participation in Executive Benefit Plans. The Executive shall be
permitted during the Term, if and to the extent eligible, to participate in any group medical,
dental, long-term and short-term disability insurance, life insurance, and 401(k) plan of the
Company available to other comparable executives of the Company generally on the same terms as such
other executives.
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3.5 Vacation. The Executive shall be entitled to accrue twenty (20) days of paid
vacation and three (3) days of paid sick leave per year, to be scheduled and taken at the
Executive’s option at such times as his duties may permit. The established vacation year is the
calendar year, January 1 through December 31. Vacation leave can be accrued for a maximum of 240
hours at the end of a calendar year. Any vacation leave accrued in excess of 240 hours on any
December 31st will be paid to the employee by March 31st of the following year, provided that the
employee has taken at least two weeks vacation leave during the year in which the excess was
accrued, otherwise the excess will be lost by the employee. Pay for any unused earned vacation
will be given at the time of termination, up to a maximum of 240 hours.
3.6 Expenses. Subject to such policies as may from time to time be established by the
Board, the Company shall pay or reimburse the Executive for all ordinary, necessary and reasonable
expenses (including, without limitation, travel, meetings, dues, subscriptions, fees, educational
expenses, computer equipment, mobile telephones, professional insurance, and the like) actually
incurred or paid by the Executive during the Term in the performance of the Executive’s services
under this Agreement, upon presentation of expense statements or vouchers or such other supporting
information as the Board may require.
3.7. Withholding. The Company is authorized to withhold from the amount of any Base
Salary and incentive compensation and any other things of value paid to or for the benefit of the
Executive, all sums authorized by the Executive or required to be withheld by law, court decree, or
executive order, including (but not limited to) such things as income taxes, employment taxes, and
employee contributions to fringe benefit plans sponsored by the Company.
4. Termination.
4.1 General. This Agreement shall terminate upon the expiration of the Term, unless
earlier terminated in accordance with the provisions of this Section 4.
4.2 Termination Upon Mutual Agreement. The Company and the Executive may, by mutual
written agreement, terminate this Agreement and/or the employment of the Executive at any time.
4.3 Death or Disability of Executive.
(a) The employment of the Executive hereunder shall terminate upon (i) the death of the
Executive, and (ii) at the option of the Company upon not less than thirty (30) days’ prior written
notice to the Executive or his personal representative or guardian, if the Executive suffers a
Total Disability (as defined in Section 4.3(b) below).
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(b) For purposes of this Agreement, “Total Disability” shall mean (i) if the Executive is
subject to a legal decree of incompetency (the date of such decree being deemed the date on which
such disability occurred), or (ii) the written determination by a physician selected by the Company
that, because of a medically determinable disease, injury or other physical or mental disability,
the Executive is unable substantially to perform each of the material duties of the Executive
required hereby, and that such disability has lasted for the immediately preceding ninety (90) days
and is, as of the date of determination, reasonably expected to last an additional ninety (90) days
or longer after the date of determination, in each case based upon medically available reliable
information, and the provision of clear and convincing evidence by the Company of the Executive’s
inability substantially to perform each material duty hereunder in support of such determination by
the physician.
(c) Any leave on account of illness or temporary disability which is short of “Total
Disability” shall not constitute a breach of this Agreement by the Executive and in no event shall
any party be entitled to terminate this Agreement for “cause” or “good reason” (as such terms are
defined herein) due to any such leave. All physicians selected hereunder shall be board certified
in the specialty most closely related to the nature of the disability alleged to exist.
4.4 Termination For Cause. The Company may, upon action of the Board, and upon
written notice to the Executive specifying in reasonable detail the reason therefor, terminate the
employment of the Executive at any time for “cause” (as defined below), provided, however, that if
the reason for termination for “cause” is susceptible of cure, the Executive shall have a period of
thirty (30) days after such written notice to effect a cure. “Cause” means (i) the material
failure of the Executive to perform his duties under this Agreement which failure materially
adversely affects the Company or its business after notice and a reasonable opportunity to cure;
(ii) willful malfeasance by the Executive in connection with the performance of his duties under
this Agreement that could in the good faith judgment of the Board (x) have a material adverse
impact on the Company’s business, (y) subject the Company to criminal penalties in excess of
$50,000, or (z) result in the incarceration of any officer, director or employee of the Company;
(iii) the Executive being convicted of, or pleading guilty or nolo contendere to, or being indicted
for a felony or other crime involving theft, fraud or moral turpitude; (iv) fraud or embezzlement
against the Company; (v) the failure of the Executive to obey in all material respects any proper
written direction of the Chief Executive Officer or the Board that is not inconsistent with this
Agreement and which failure to obey has a material adverse effect on the Company; or (vi) the
violation by the Executive of the non-competition and confidentiality provisions of Section 5 of
this Agreement.
4.5 Termination For Good Reason. The Executive may resign (and thereby terminate his
employment under this Agreement) at any time for “good reason” (as defined below), upon not less
than thirty (30) days’ prior written notice to the Company specifying in reasonable detail the
reason therefor, provided, however, that if the reason for resignation for “good reason” is susceptible of cure, the Company shall have a period of thirty
(30) days after such written notice to effect a cure. For purposes of this Agreement, “good
reason” shall mean (i) any material failure by the Company to comply with any material obligation
imposed by this Agreement; or (ii) a substantial reduction in the Executive’s title, position,
duties or responsibilities.
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4.6 Payments Upon Termination.
(a) In the event that the Executive’s employment is terminated by the Company without “cause,”
or by the Executive for “good reason,” then, if no Change of Control (as defined below) has
occurred on or before the date of such termination, the following provisions shall apply:
(i) The Company shall pay the Executive the Base Salary to which the Executive would have been
entitled pursuant to Section 3.1 of this Agreement had the Executive remained in the employ of the
Company for a period of three (3) months from the date of termination (the “Termination Payment
Period”). Such payments shall be paid on the same schedule used to pay Base Salary to the
Executive during the Term.
(ii) Unless prohibited by law or, with respect to any insured benefit, the terms of the
applicable insurance contract, the Executive shall continue to participate in, and be covered
under, the Company’s medical, dental, long-term and short-term disability insurance, and
life insurance plan on the same basis as other executives of the Company during the
Termination Payment Period.
(iii) Notwithstanding the foregoing, the Company shall not be required to make any payment to
the Executive or maintain the Executive’s participation or coverage under any plan pursuant to this
Section 4.6(a) if the Executive breaches any of the provisions of Section 5 hereof. In such event,
the Company shall provide written notice to the Executive detailing such violation.
(b) In the event the Executive’s employment is terminated (i) pursuant to Section 2, (ii) by
the Company for “cause,” or (iii) by the Executive without “good reason,” then the Company shall
have no duty to make any payments or provide any benefits to the Executive pursuant to this
Agreement other than payment of the amount of the Executive’s Base Salary accrued through the date
of termination of his employment.
(c) Upon termination of Executive’s employment for death or Total Disability, the Company
shall pay to the Executive, guardian or personal representative, as the case may be, in addition to
any insurance or disability benefits to which he may be entitled hereunder, all amounts accrued or
vested prior to such termination.
(d) In the event that the Executive’s employment is terminated by the Company without “cause,”
or by the Executive for “good reason,” then, if a Change of Control (as defined below) has occurred
on or before the date of such termination or the Company has entered into a definitive agreement for a Change of Control on or before the date of
termination and such termination is effected in contemplation of such Change of Control, the
following provisions shall apply:
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(i) The Company shall pay the Executive the Base Salary to which the Executive would have been
entitled pursuant to Section 3.1 of this Agreement had the Executive remained in the employ of the
Company for a period of twenty four (24) months from the date of termination (the “Change of
Control Payment Period”) and any bonus payments earned through the date of termination. Such
payments shall be paid on the same schedule used to pay Base Salary to the Executive during the
Term.
(ii) Unless prohibited by law or, with respect to any insured benefit, the terms of the
applicable insurance contract, the Executive shall continue to participate in, and be covered
under, the Company’s medical, dental, long-term and short-term disability insurance, and
life insurance plan on the same basis as other executives of the Company during the Change of
Control Payment Period.
(iii) Notwithstanding the foregoing, the Company shall not be required to make any payment to
the Executive or maintain the Executive’s participation or coverage under any plan pursuant to this
Section 4.6(d) if the Executive breaches any of the provisions of Section 5 hereof. In such event,
the Company shall provide written notice to the Executive detailing such violation.
(e) For purposes of this Agreement, the term “Change of Control” shall mean:
(i) Any person (as defined conventionally in the context of corporate ownership) becomes the
beneficial owner directly or indirectly (within the meaning of Rule 13(d)(3) of the Securities
Exchange Act of 1934, as amended) of more than 50% of the Company’s then outstanding voting
securities (measured on the basis of voting power);
(ii) The closing of an agreement of merger or consolidation with any other corporation or
business entity, other than (x) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the surviving entity), in
combination with the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, at least 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after such merger or
consolidation, or (y) a merger or consolidation effected to implement a re-capitalization of the
Company (or similar transaction) in which no person acquires more than 50% of the combined voting
power of the Company’s then outstanding securities; or
(iii) The liquidation or dissolution of the Company or upon the closing of a sale or
disposition by the Company of all or substantially all of the Company’s assets.
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(f) The Executive acknowledges that, upon termination of his employment, he is entitled to no
other compensation, severance, or other benefits other than those specifically set forth in this
Agreement or any applicable grant agreement under the Option Plan.
4.7 No Disparaging Comments Upon Termination.
Upon termination of this Agreement, the Company will refrain from making any disparaging
remarks about the Executive. Similarly, the Executive shall refrain from making any disparaging
remarks about the businesses, services, products, stockholders, officers, directors or other
personnel of the Company or any of its affiliates.
5. Certain Covenants of the Executive.
5.1 Necessity for Covenants. The Executive acknowledges that (i) the Company
is engaged and will in the future be engaged in the Business (as defined below); (ii) his
employment pursuant to this Agreement will give him access to customers and suppliers of, and trade
secrets of and confidential information concerning, the Company; and (iii) the agreements and
covenants contained in this Section 5 are essential to protect the business and goodwill of the
Company. In order to induce the Company to enter into this Agreement and pay the compensation and
other benefits at the levels requested by the Executive, the Executive enters into the following
covenants:
5.2 Definitions.
(a) “Company” for purposes of this Article 5 shall include the Company and all of the
Company’s majority owned subsidiaries and affiliates.
(b) “Business” shall mean the development, manufacturing, marketing, sale and/or
supply of network video equipment, including video servers, Ethernet switches, fiber optic systems
and video management software.
(c) “Business Contact” shall mean any (i) customer which has purchased goods or
services provided by the Company during the Term, (ii) prospective customer whom the Executive or
persons working for or directly with the Executive has contacted during the Term for the purpose of
endeavoring to sell the goods or services of the Company to the prospective customer, or (iii)
provider of goods or services to the Company.
(d) “Service Area” means the geographic area in which the Company markets and sells
its goods and services.
5.3 Restrictions. During the Term and for a period of one (1) year after the date
(the “Termination Date”) the Executive’s employment hereunder is terminated (the “Restricted
Period”), the Executive shall not, directly or indirectly, for himself or on behalf of any other
person, firm, corporation or other entity, whether as a principal, agent, employee, stockholder,
partner, officer, member, director, sole proprietor, or otherwise:
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(a) call upon or solicit any Business Contact for the purpose of persuading the Business
Contact to engage the Executive or any other person, firm, corporation or other entity to provide
goods or services which are the same or similar to those the Company provided to the Business
Contact or to engage the Business Contact to provide goods or services which are the same or
similar to those the Business Contact provided to the Company to any other person, firm,
corporation or other entity;
(b) solicit, participate in or promote the solicitation of any person who was employed by the
Company at any time during the twelve (12) months preceding the Termination Date to leave the
employ of the Company, or hire or engage any of those persons;
(c) make any disparaging remarks about the Company’s business, services or personnel;
(d) interfere in any way with the Company’s business, prospects or personnel; or
(e) become affiliated with or render services to any person engaged in any business that
competes with the Business within the Service Area, directly or indirectly, in any capacity,
including, without limitation, as an individual, partner, shareholder, officer, director,
principal, agent, employee, trustee or consultant; provided, however, that the Executive may own,
directly or indirectly, solely as an investment, securities which are publicly traded if the
Executive (a) is not a controlling person of, or a member of a group which controls, the issuer and
(b) does not, directly or indirectly, own 5% or more of any class of securities of the issuer.
5.4 Trade Secrets and Confidential Information
5.4.1 Trade Secrets Defined. The term “Trade Secrets,” as used in this Agreement,
includes, without limitation, (i) all information concerning the Company and all aspects of the
Business, including costs, revenues, profits, pricing, customer information, product information,
supply sources, marketing, prospective and executed contracts, budgets and business plans, (ii) all
information which is unique to the Company or to any aspect of the Business which has a significant
business purpose and is not known or generally available from sources outside the Company or
typical of industry practice, and which would have a material adverse effect on the Company or the
Business if disclosed, and (iii) all formulae, innovations, inventions, improvements, compilations,
programs, devices, lists, methods, techniques, practices, procedures or processes of the Company
and all information relating thereto.
5.4.2 Confidential Information Defined. Any other information not qualifying as a
Trade Secret, but relating to the business of the Company which is disclosed by
the Company to the Executive, or is discovered by the Executive in the course of employment, is
Confidential Information.
5.4.3 Duty to Maintain Secrecy and Confidentiality. During the Period of the
Executive’s employment with the Company, and for a period of three (3) years thereafter, the
Executive shall maintain the secrecy and confidentiality of the Trade Secrets and the Confidential
Information and shall not (i) divulge, furnish or make accessible to anyone or
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in any way use, for his own benefit or for the benefit of any other individual firm or entity (other than in the
ordinary course of the Company’s business), any Trade Secret or Confidential Information; (ii) take
or permit any action to be taken which would reduce the value of the Trade Secrets or Confidential
Information to the Company; or (iii) otherwise misappropriate or suffer the misappropriation of the
Trade Secrets or the Confidential Information.
5.4.4 Information Which is Publicly Known. Notwithstanding anything herein to the
contrary, the obligations of secrecy and confidentiality set forth herein shall not apply to any
information which is now generally publicly known or which subsequently becomes generally publicly
known other than as a direct or indirect result of the breach of this Agreement by the Executive,
or which is required by law or order of any court to be disclosed.
5.5 Property of the Company. All memoranda, notes, lists, records and other documents
or papers (and all copies thereof), including but not limited to, such items stored in computer
memories, on microfiche or by any other means, made or compiled by or on behalf of the Executive,
or made available to the Executive concerning the Business, are and shall be the property of the
Company and shall be delivered to the Company promptly upon the termination of the Executive’s
employment with the Company or at any other time on request.
5.6 Executive’s Ideas, Etc. All inventions, prototypes, discoveries, improvements,
innovations and the like (“Inventions”) and all works of original authorship or images that are
fixed in any tangible medium of expression and all copies thereof (“Works”) which are designed,
created or developed by Executive, solely or in conjunction with others, in the course of
performance of the Executive’s duties which relate to the Business, shall be made or conceived for
the exclusive benefit of and shall be the exclusive property of the Company. The Executive shall
immediately notify the Company upon the design, creation or development of all Inventions and
Works. At any time thereafter, the Executive, at the request and expense of the Company, shall
execute and deliver to the Company all documents or instruments which may be necessary to secure or
perfect the Company’s title to or interest in the Inventions and Works, including but not limited
to applications for letters of patent, and extensions, continuations or reissues thereof,
applications for copyrights and documents or instruments of assignment or transfer. All Works are
agreed and stipulated to be “works made for hire,” as that term is used and understood within the
Copyright Act of 1976, as amended or any successor statute. To the extent any Works are not deemed
to be works made for hire as defined above, and to the extent that title to or ownership of any
Invention or Work and all other rights therein are not otherwise vested exclusively in the Company,
the Executive shall, without further consideration but at the expense of the Company, assign and
transfer to the Company the Executive’s entire right, title and interest (including copyrights and patents) in or
to those Inventions and Works.
5.7 Rights and Remedies Upon Breach. If the Executive breaches, or threatens to
commit a breach of, any of the provisions of Sections 5.1 through 5.6 (the “Restrictive
Covenants”), the Company shall, in addition to its right immediately to terminate this Agreement,
have the right and remedy (which right and remedy shall be independent of others and severally
enforceable, and which shall be in addition to, and not in lieu of, any other
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rights and remedies available to the Company under law or in equity) to have the Restrictive Covenants specifically
enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach could cause irreparable injury to the Company or its affiliates and
that money damages may not provide adequate remedy to the Company.
5.8 Covenants Currently Binding Executive. The Executive warrants that his employment
by the Company will not (a) violate any non-disclosure agreements, covenants against competition,
or other restrictive covenants made by the Executive to or for the benefit of any previous employer
or partner, or (b) violate or constitute a breach or default under, any statute, law, judgment,
order, decree, writ, injunction, deed, instrument, contract, lease, license or permit to which the
Executive is a party or by which the Executive is bound.
5.9 Litigation. There is no litigation, proceeding or investigation of any nature
(either civil or criminal) which is pending or, to the best of the Executive’s knowledge,
threatened against or affecting the Executive or which would adversely affect his ability to
substantially perform the duties herein.
5.10 Review. The Executive has received or been given the opportunity to review the
provisions of this Agreement, and the meaning and effect of each provision, with independent legal
counsel of the Executive’s choosing.
5.11 Severability of Covenants. The Executive acknowledges and agrees that the
Restrictive Covenants are reasonable and valid in geographical and temporal scope and in all
respects. If any court determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected
and shall be given full effect, without regard to the invalid portions.
5.12 Blue-Penciling. If any court determines that any of the Restrictive Covenants,
or any part thereof, is unenforceable because of the duration or geographic scope of such
provision, such court shall have the power to reduce the duration or scope of such provision, as
the case may be, and, in its reduced form, such provision shall then be enforceable and shall be
enforced. If any such court declines to so revise such covenant, the parties agree to negotiate in
good faith a modification that will make such duration or scope enforceable.
6. Dispute Resolution.
6.1 Costs of Arbitration. If either party brings an arbitration proceeding to enforce
its rights under this Agreement, the prevailing party shall be entitled to recover from the other
party all expenses incurred by it in preparing for and in trying the case, including, but not
limited to, investigative costs, arbitration and court costs and reasonable attorneys’ fees.
6.2 No Jury Trial. NEITHER PARTY SHALL ELECT A TRIAL BY JURY IN ANY ACTION,
SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
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6.3 Personal Jurisdiction. Both parties agree to submit to the jurisdiction
and venue of the federal or state courts in the State of Maryland as to matters involving
enforcement of this Agreement, including any award under an arbitration proceeding.
6.4 Arbitration. SUBJECT TO THE COMPANY’S RIGHT TO SEEK INJUNCTIVE RELIEF AS
SPECIFIED IN THIS AGREEMENT, ANY DISPUTE BETWEEN THE PARTIES HERETO ARISING UNDER OR RELATING TO
THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE AMOUNT OF DAMAGES, THE NATURE OF THE EXECUTIVE’S
TERMINATION OR THE CALCULATION OF ANY BONUS OR OTHER AMOUNT OR BENEFIT DUE) SHALL BE RESOLVED IN
ACCORDANCE WITH THE PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY RESULTING HEARING
SHALL BE HELD IN THE WASHINGTON, D.C. METROPOLITAN AREA. THE RESOLUTION OF ANY DISPUTE ACHIEVED
THROUGH SUCH ARBITRATION SHALL BE BINDING AND ENFORCEABLE BY A COURT OF COMPETENT JURISDICTION.
THE ARBITRATOR(S) SHALL HAVE NO AUTHORITY TO MODIFY ANY PROVISION OF THIS AGREEMENT OR TO AWARD A
REMEDY FOR A DISPUTE INVOLVING THIS AGREEMENT OTHER THAN A BENEFIT SPECIFICALLY PROVIDED UNDER OR
BY VIRTUE OF THE AGREEMENT.
7. Other Provisions.
7.1 Notices. Any notice or other communication required or which may be given
hereunder shall be in writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage paid, and shall be
deemed given when so delivered personally, telegraphed, telexed or sent by facsimile transmission
or, if mailed, four days after the date of mailing, as follows:
(i) if to the Company, to:
Optelecom-NKF, Inc.
00000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
00000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with copies to:
Xxxxxx X. France, Esquire
Xxxxxxx LLP
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxxx LLP
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
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(ii) if to the Executive, to:
Xxxxxx Xxxxxxx
00000 Xxxxxxxx Xxxx
Xxx Xxxx, Xxxxxxxx 00000
Facsimile :
00000 Xxxxxxxx Xxxx
Xxx Xxxx, Xxxxxxxx 00000
Facsimile :
Any party may by notice given in accordance with this Section to the other party designate
another address or person for receipt of notices hereunder.
7.2 Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements and
understandings, written or oral, with respect thereto. In the event there is any conflict or
ambiguity between the provisions of this Agreement and any other agreement, plan or policy of the
Company relating to the Executive’s employment with the Company, the resolution of any such
conflict or ambiguity shall be governed by the terms of this Agreement.
7.3 Waivers and Amendments. This Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written
instrument signed by the Executive and a duly authorized officer (other than the Executive) of the
Company (each, in such capacity, a party) or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any
right, power or privilege hereunder, nor any single or partial exercise of any right, power or
privilege hereunder, preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder.
7.4 Governing Law. This Agreement has been negotiated and is to be performed in the
State of Maryland, and shall be governed and construed in accordance with the laws of the State of
Maryland applicable to agreements made and to be performed entirely within such State.
7.5 Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
instrument.
7.6
Confidentiality.
Neither party shall disclose the contents of this Agreement or of any
other agreement they have simultaneously entered into to any person,
firm or entity, except the agents or representatives of the parties
(including any tax advisors or attorneys of a party) and immediate
family members, or except as required by law.
7.7 Word Forms. Whenever used herein, the singular shall include the plural and the
plural shall include the singular. The use of any gender or tense shall include all genders and
tenses.
7.8 Headings. The Section headings have been included for convenience only, are not
part of this Agreement, and are not to be used to interpret any provision hereof.
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7.9 Binding Effect and Benefit; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties, their successors, heirs, personal representatives and other
legal representatives. This Agreement may be assigned by the Company to any entity in connection
with a Change of Control; provided, however, that notwithstanding any other provision within
this Agreement, this Agreement shall survive any Change in Control that shall occur for the
remainder of the Term. The Executive may not assign this Agreement without the prior
written consent of the Company.
7.10 Rule 409A. If any compensation or benefits provided by this Agreement may
result in the application of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”), the Company shall in consultation with the Executive, modify the Agreement in the least
restrictive manner necessary in order to exclude such compensation from the definition of “deferred
compensation” within the meaning of such Section 409A or in order to comply with the provisions of
Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other
regulatory guidance issued under such statutory provisions and without any diminution in the value
of the payments to the Executive.
7.11 Separability. The covenants contained in this Agreement are separable,
and if any court of competent jurisdiction declares any of them to be invalid or unenforceable,
that declaration of invalidity or unenforceability shall not affect the validity or enforceability
of any of the other covenants, each of which shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties, intending to be legally bound, have executed this Agreement
or caused it to be executed and attested by their duly authorized officers as a document under seal
on the day and year first above written.
| ATTEST/WITNESS: | OPTELECOM-NKF, INC. | ||||
| By: | (SEAL) | ||||
| Chief Executive Officer | |||||
| EXECUTIVE: | |||||
| (SEAL) | |||||
| Xxxxxx Xxxxxxx | |||||
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