EXHIBIT 10.110
RESTATED EMPLOYMENT AGREEMENT
RESTATED EMPLOYMENT AGREEMENT, executed as of April 13, 1998 between
SpecTran Corporation, a Delaware corporation (hereinafter referred to as the
"Corporation"), and Xx. Xxxxxxx X. Xxxxxx (hereinafter referred to as
"Executive").
W I T N E S S E T H:
WHEREAS, Executive is presently employed by the Corporation pursuant to
an Employment Agreement dated December 14, 1992 (the "1992 Employment
Agreement"); and
WHEREAS, the Corporation recognizes the effort, attention and skill
Executive has given the organization, operation and planning of the Corporation
and desires to enter into this employment agreement with Executive.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree with each other as follows:
1. Termination of the 1992 Employment Agreement. This Agreement
supersedes and replaces the 1992 Employment Agreement which shall be deemed
terminated as of the date first written above.
2. Employment. The Corporation agrees to and does hereby employ
Executive, and Executive agrees to and does hereby accept employment by the
Corporation, subject to the direction of its President and Chief Executive
Officer and Board of Directors, for the period commencing on April 13, 1998 and
ending at midnight on June 12, 2001 (the "Termination Date," and collectively
the "Base Term"). The Base Term shall not be renewable except by written
amendment signed by both Parties to this Agreement. The Base Term and any
amendments or extensions shall be referred to hereinafter as the "Employment
Period."
3. Scope of Duties/ Headquarters/ Other Directorships.
(a) Executive agrees that as an employee of the Corporation he
will devote his time and effort during the Employment Period to the performance
of the duties of such employment. During the first six months of this Agreement
Executive will work with the Chief Executive Officer to develop a review and
analysis of the Company's strategic plan for presentation to the Board of
Directors, with particular emphasis on the implications for the Company of the
market change that appears to have begun during the third quarter of 1997. While
the goal is the presentation of a mutually agreed report, if there is no mutual
agreement, then the views of the Executive and the Chief Executive Officer will
be presented to the Board of Directors. During the remainder of this Agreement,
Executive shall provide advice and assistance to the Board of Directors and the
Chief Executive Officer and perform such projects as reasonably requested and
mutually agreed. It is anticipated that Executive will perform an active role in
providing advice and counsel with respect to the Corporation's patent and
technology position and licensing arrangements, including those with Corning
Incorporated and Lucent Technologies, as well as consulting support for
partnering and alliances with other firms for strategic purposes. In addition,
Executive will continue to serve as the Corporation's representative to the
International Wire and Cable Symposium Committee, with duties including
attendance at three two-day organizing sessions for the technical Symposium,
evaluation of contributed papers, attendance at the Symposium, planning and
operational development of strategic direction for the Symposium, and serving as
Chair of the Educational Subcommittee, among other things. Executive will
continue to serve as Chairman of the Board of Directors of the Corporation
during the first twelve months of this Agreement and may continue to do so
thereafter, subject to election by the stockholders and determination of the
Board of Directors.
(b) Executive shall make his business headquarters at
Sturbridge, Massachusetts. Executive shall undertake such travel as the
Corporation may request.
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(c) It is understood and agreed that Executive will advise the
Corporation of his intentions to act as a director of other corporations and may
hold such directorships and shall be permitted devote such time thereto as may
be reasonably necessary to discharge the ordinary duties attendant upon any such
directorships. Executive agrees that he will, upon request of the Board of
Directors of the Corporation, resign from any such directorship notwithstanding
that the Corporation may have theretofore approved his accepting or retaining
such directorship.
4. Employment Period - Annual Compensation.
(a) Annual Executive Compensation. For the services and duties
to be rendered and performed by Executive during the Employment Period, the
Corporation agrees to pay Executive annual compensation at the rate of Two
Hundred Fifty Thousand Dollars and no cents ($250,000.00) per year, (this annual
amount to be referred to as "Annual Executive Compensation"). Annual Executive
Compensation shall be payable in equal semi-monthly installments. The
Corporation shall reimburse Executive for all expenses reasonably and
necessarily incurred in connection with his employment by the Corporation,
including travelling expenses while absent, on the Corporation's business, from
his business headquarters.
(b) Bonus for Calendar Year 1998. For calendar year 1998 only,
Executive will continue to be eligible to participate in the all employee profit
sharing plan ("EPSP") and for a target bonus of twenty-five percent (25%) of the
Base Annual Executive Compensation under the Corporation's Key Employee
Incentive Plan ("XXXX"), it being expressly understood that determination of
whether or not any such bonus will be paid and the amount of any such bonus
shall be at the sole discretion of the Board of Directors. After Calendar Year
1998, Executive will not be entitled to participate in either the EPSP or the
XXXX.
(c) Stock Option Grant in 1998. Subject to the stockholders of
the Corporation approving an increase in the number of shares authorized for
issuance under the Corporation's 1991 Incentive Stock Option Plan (the "Plan")
at the Corporation's 1998 annual meeting of stockholders, Executive shall be
granted incentive stock options to purchase 50,000 shares of the Corporation's
common stock under the Plan1.
5. Vacation. Executive shall be entitled to a vacation each year equal
to one (1) month. Said vacation may be taken all at once or weekly at the sole
discretion of Executive.
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1 The Corporation presently has an insufficient number of shares reserved for
issuance as incentive stock options to make this second grant of incentive stock
options to purchase 50,000 shares of common stock. The Corporation will be
seeking stockholder approval to reserve additional shares for issuance as
incentive stock options at its next Annual Meeting of Stockholders, presently
scheduled on or about May 31, 1998. While the Corporation does not anticipate
that the stockholders will reject such a resolution, should they do so,
Executive will have the option of receiving these options as non-qualified
options promptly after the Annual Meeting, or awaiting the next meeting of
stockholders at which the stockholders approve such additional reservation.
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6. Secrets. Executive agrees that any trade secrets or any other
proprietary information (whether in written, verbal or any other form) relating
to the existing or contemplated business and/or field of interest of the
Corporation or any of its affiliates (for the purpose of this Agreement, an
affiliate of the Corporation shall be deemed to be any corporation or other
legal entity which controls the Corporation, which is controlled by the
Corporation, one which is under common control with the Corporation), or of any
corporation or other legal entity in which the Corporation or any of its
affiliates has an ownership interest of more than twenty-five percent (25%), and
any proprietary information (whether in written, verbal or any other form) of
any of the Corporation's customers, suppliers, licensors or licensees,
including, but not limited to, information relating to inventions, disclosures,
processes, systems, methods, formulae, patents, patent applications, machinery,
materials, notes, drawings, research activities and plans, costs of production,
contract forms, prices, volume of sales, promotional methods, list of names or
classes or customers, which he has heretofore acquired during his employment by
the Corporation or any of its affiliates or which he may hereafter acquire
during his employment with the Corporation or any of its affiliates, in both
cases whether during or outside business hours, whether or not on the
Corporation's premises, as the result of any disclosures to him, or in any other
way, shall be regarded as held by him in a fiduciary capacity solely for the
benefit of the Corporation, its successors or assigns, and shall not at any
time, either during the term of this Agreement or thereafter, be disclosed,
divulged, furnished, or made accessible by him to anyone, or be otherwise used
by him, except in the regular course of business of the Corporation or its
affiliates. Upon termination of his employment, Executive shall return or
deliver to the Corporation all tangible forms of such information in his
possession or control, and shall retain no copies thereof. Information shall,
for purposes of this Agreement, be considered to be secret if not known by the
trade generally, even though such information may have been disclosed to one or
more third parties pursuant to any business discussion or agreement, including
distribution agreements, joint research agreements or other agreements entered
into by the Corporation or any of its affiliates.
7. Patents. Executive agrees to and does hereby sell, assign, transfer
and set over to the Corporation, its successors, assigns, or affiliates, as the
case may be, all his right, title, and interest in and to any inventions,
improvements, processes, patents or applications for patents which he develops
or conceives individually or in conjunction with others during his employment by
the Corporation, or, having possibly conceived same prior to his employment, may
complete while in the employ of the Corporation or any of its affiliates, in
both cases whether during or outside business hours, whether or not on the
Company's premises, which inventions, improvements, processes, patents or
applications for patents are (i) in connection with any matters within the scope
of the existing or contemplated business of the Corporation or any of its
affiliates, or (ii) aided by the use of time, materials, facilities or
information paid for or provided by the Corporation, all of the foregoing to be
held and enjoyed by the Corporation, its successors, assigns or affiliates, as
the case may be, to the full extent of the term for which any Letters Patent may
be granted and as fully as the same would have been held by Executive, had this
Agreement, sale or assignment not been made. Executive will make, execute and
deliver any and all instruments and documents necessary to obtain patents for
such inventions, improvements and processes in any and all countries. Executive
hereby irrevocably appoints the Corporation to be his attorney in fact in the
name of and on behalf of Executive to execute all such instruments and do all
such things and generally to use the Executive's name for the purposes of
assuring to the Corporation (or its nominee) the full benefit of its rights
under the provisions of Articles 5 and 6.
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8. Disability. (a) In the event Executive becomes partially disabled,
or becomes totally disabled (as determined in accordance with Article 8(c)
below) and such total disability has continued for less than six (6) full
consecutive calendar months, then the Corporation shall continue during the
Employment Period to pay Executive at the rate of his Annual Executive
Compensation as set forth in Article 4 and continue the benefits provided for
him in Articles 9 and 10 hereof. In any event, the Corporation's obligations in
the event of Executive's partial disability shall terminate upon the end of the
Employment Period.
(b) In the event Executive becomes totally disabled (as determined in
accordance with Article 8(c) below), and such total disability has continued for
six (6) full consecutive calendar months or more, then for so long thereafter
during the Employment Period as such total disability shall continue or for a
period of one (1) year, whichever is longer, Executive shall be paid at
seventy-five percent (75%) of the rate of his Annual Executive Compensation as
set forth in Article 4 hereof.
(c) For purposes of this Agreement, determination of whether Executive
is or is not totally disabled shall be made as follows:
(i) Executive's inability, physical or mental, for whatever
reason, to be able to perform his duties to the Corporation
shall be total disability; and
(ii) If any difference shall arise between the Corporation and
Executive as to whether he is totally disabled, such
difference shall be resolved as follows: Executive shall be
examined by a physician appointed by the Corporation and a
physician appointed by Executive. If said two physicians shall
disagree concerning whether Executive is totally disabled,
that question shall be submitted to a third physician, who
shall be selected by such two physicians. The medical opinion
of such third physician, after examination of Executive and
consultation with such other two physicians, shall decide the
question.
(d) Should Executive become totally disabled then he may by action of
the Board of Directors be removed from his position and employment with the
Corporation.
9. Death. In the event of the death of Executive during the Employment
Period, the Corporation shall continue to pay Executive's Annual Executive
Compensation for a period of one (1) year from the date of death. The salary
payment will be made to the wife of Executive or if no wife shall survive
Executive, to his Estate.
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10. Employee Benefits. (a) Executive may participate in any pension
plan, profit-sharing plan, life insurance, hospitalization or surgical program,
or insurance program presently in effect or hereafter adopted by the
Corporation, to the extent, if any, that he may be eligible to do so under the
provisions of such plan or program, provided that Executive's participation in
the Corporation's all employee profit sharing plan and Key Employee Incentive
Plan will terminate after calendar year 1998. Executive will be covered under
the Corporation's medical and dental insurance programs, or provided with
identical or substantially similar coverage, until age 65. The Corporation may
terminate, modify, or amend any such plan or program, in the manner and to the
extent permitted therein, and the rights of Executive under any such plan or
program shall be subject to any such right of termination, modification, or
amendment. To the extent any payments under any such plan or program are made to
Executive because he is disabled, such amounts shall be credited against amount
due to Executive under Article 8.
(b) For the sake of clarification, and notwithstanding any other
provision of this Agreement, it is understood and agreed that all benefits
provided to Executive under this Agreement shall be provided to the extent that
they exceed any employee benefit provided to Executive other than specifically
through this Agreement, such as the programs, plans, etc. referred to in Article
10(a) above. The benefits provided under this Agreement shall be supplemental to
benefits provided otherwise to Executive by the Corporation, and shall not be
provided to the extent that they are duplicative.
11. Covenant Not to Solicit Employees. During the one-year period
immediately following termination of Executive's employment with the
Corporation, Executive agrees that he will not (a) solicit any past, present or
future customers of the Corporation in any way relating to any business in which
the Corporation was engaged during the term of his employment, or which the
Corporation planned during the term of his employment, to enter, or (b) induce
or actively attempt to influence any other employee or consultant of the
Corporation to terminate his or her employment or consultancy with the
Corporation. In the event that Executive violates any provision of this Article
11, then in addition to any other remedies available to the Corporation, the
Corporation shall have the right immediately to terminate any payments or
benefits provided or to be provided to Executive under this Agreement.
12. Assignment. This Agreement may be assigned by the Corporation as
part of the sale of substantially all of its business; provided, however, that
the purchaser shall expressly assume all obligations of the Corporation under
this Agreement. Further, this Agreement may be assigned by the Corporation to an
affiliate, provided that any such affiliate shall expressly assume all
obligations of the Corporation under this Agreement, and provided further that
the Corporation shall then fully guarantee the performance of the Agreement by
such affiliate. Executive agrees that if this Agreement is so assigned, all the
terms and conditions of this Agreement shall remain between such assignee and
himself with the same force and effect as if said Agreement had been made with
such assignee in the first instance.
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13. Termination.
(a) Survival. The provisions of Articles 6 (Secrets), 7 (Patents), 11
(Covenant Not to Solicit Employees), 13 (Termination) and 15 (Applicable Law)
shall survive the termination of this Agreement. Further, to the extent that
this Agreement expires at the end of its term prior to Executive reaching the
age of 65, then Article 10 shall survive to the extent the Corporation remains
obligated to provide Executive with the coverage described in the second
sentence of Article 10(a) until Executive reaches age 65.
(b) Termination by Executive. Subject to the provisions of Article
13(c)(iii) regarding a Change in Control, if at any time during the Employment
Period, Executive elects to terminate his employment with the Corporation, then
the Corporation's obligations to Executive under this Agreement shall be limited
to the Annual Executive Compensation and benefits earned up to the date of
Executive's departure.
(c) Termination Without Cause.
(i) Subject to the provisions of Article 13(c)(ii)
below, and provided there has been no Change in Control (as
defined in Article 13(c)(v) below), in the event the
Corporation dismisses Executive without Cause from employment,
the Corporation shall continue to fulfill its obligations
under this Agreement through the end of the Employment Period
and until Executive reaches age 65 with regard to the coverage
described in the second sentence of Article 10(a).
(ii) In the event Executive takes other employment after being
dismissed without Cause, and provided there has been no Change
in Control (as defined in Article 13(c)(v) below), the
Corporation's obligations to him under this Agreement
including those under the second sentence of Article 10(a)
shall cease upon the later of: (A) Executive's taking other
employment, or (B) six months following his dismissal;
provided, however that the Corporation's obligations under
this Article 13(c)(ii) shall in no event continue beyond the
end of the Employment Period. Moreover, if Executive takes
other employment during the six-month period following his
dismissal without Cause, then the Corporation's obligation to
Executive for the balance of said six-month period shall be
limited to payment of Executive's Annual Executive
Compensation.
(iii) In the event that a Change in Control occurs
during the Employment Period and either [A] Executive is
dismissed without Cause from employment up to and including
twelve (12) months from such Change in Control or [B]
Executive voluntarily leaves the employ of the Corporation up
to and including twelve (12) months from such Change in
Control, then in either case the Corporation shall continue to
fulfill its obligations under this Agreement for a period of
twelve (12) months from such dismissal without Cause or
voluntary departure, as the case may be; provided, however,
that if Executive takes other employment during said
twelve-month period, the Corporation's obligation to Executive
for the balance of said twelve-month period shall be limited
to payment of Executive's Annual Executive Compensation.
(iv) Notwithstanding anything to the contrary in this
Agreement, the Corporation, in its sole and absolute
discretion, may accelerate the payment of any amounts payable
under Article 13(c) hereof to Executive, provided, however,
that accelerating such payments does not affect Executive's
eligibility to continue his insurance benefits on the same
basis (both with respect to coverage and contributions) as the
Corporation's active employees until such time as he would
have received the last amount payable under Article 13(c)
hereof had payment thereof not been accelerated pursuant to
this Article 13(c)(iv).
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(v) "Change in Control" shall mean [A] the date of
public announcement that a person has become, without the
approval of the Corporation's Board of Directors, the
beneficial owner of 20% or more of the voting power of all
securities of the Corporation then outstanding; [B] the date
of the commencement of a tender offer or tender exchange by
any person, without the approval of the Corporation's Board of
Directors, if upon the consummation thereof such person would
be the beneficial owner of 20% or more of the voting power of
all securities of the Corporation then outstanding; or [C] the
date on which individuals who constituted the Board of
Directors of the Corporation on the date this Agreement was
adopted cease for any reason to constitute a majority thereof,
provided that any person becoming a director subsequent to
such date whose election or nomination was approved by at
least three quarters of such incumbent Board of Directors
shall be considered as though such person were an incumbent
director.
(vi) "Cause" shall mean [A] breach of Executive's
obligations under Article 6, 7 or 11 of this Agreement, [B]
stealing from the Corporation or [C] Executive's conviction of
a felony.
(d) Executive agrees not to apply for or receive unemployment
insurance benefits while receiving any benefits under this contract.
14. Notices. All notices required or permitted to be given hereunder
shall be mailed by registered mail or delivered by hand to the party to whom
such notice is required or permitted to be given hereunder. If mailed, any such
notice shall be deemed to have been given when mailed as evidenced by the
postmark at point of mailing. If delivered by hand, any such notice shall be
deemed to have been given when received by the party to whom notice is given, as
evidenced by written and dated receipt of the receiving party.
Any notice to the Corporation or to any assignee of the Corporation
shall be addressed as follows:
SpecTran Corporation
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
with a copy to:
Xxx X. Xxxxxxxxx, Esq.
Nordlicht & Hand
Olympic Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Any notice to Executive shall be addressed to the address appearing on
the records of the Corporation at the time such notice is given.
Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
15. Applicable Law. This Agreement shall be interpreted and enforced in
accordance with the laws of Massachusetts without giving effect to the
principles of conflicts of law.
16. Effective Date. This Agreement shall become effective as of the
date first mentioned in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first written above.
SPECTRAN CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
/s/ R. E. Xxxxxx
Xx. Xxxxxxx X. Xxxxxx
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