EXHIBIT 10.38
AGREEMENT
THIS AGREEMENT (the "Agreement"), dated March 10, 1998, by and between
LOGIMETRICS, INC., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxxxx XX (the "Executive"),
W I T N E S S E T H:
WHEREAS, the Executive is currently serving as the Senior Vice
President of Finance and Administration of the Company;
WHEREAS, the Executive and the Company have agreed that, effective as
of February 27, 1998 (the "Effective Date"), the Executive will cease to be
employed by the Company;
WHEREAS, the Company desires to have the right to obtain certain
consulting services from the Executive following the termination of his
employment and the Executive has agreed to provide such consulting services if
requested by the Company;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and intending to be legally bound, the parties hereto agree as follows:
1. Termination of Current Employment; Resignation. The Executive
hereby resigns, as of the Effective Date, all positions he may hold as an
officer or director of the Company or any of its subsidiaries. From and after
the Effective Date, the Executive shall no longer have the status of an employee
of the Company or any of its subsidiaries and, except as required by applicable
law, shall have no right to participate in any benefit plans maintained for such
employees.
2. Severance Payments; Options.
(a) The Company shall pay to the Executive an aggregate of $42,500
as severance wages and, except as expressly provided herein, in lieu of any
payment to which the Executive may otherwise be entitled as a result of the
termination of his employment (the "Severance Payment"). The Severance
Payment shall be payable in 17 weekly installments of $2,500 commencing on
March 12, 1998 and continuing thereafter in accordance with the Company's
current payroll practices.
(b) The Company shall pay to the Executive an aggregate of $6,000
in payment in full of his accrued vacation benefits (the "Vacation Payment").
The Vacation Payment shall be made in two equal installments of $3,000 on each
of March 12, 1998 and March 19, 1998.
(c) In addition to the Severance Payment and the Vacation Payment,
the Company will reimburse the Executive for all remaining out-of-pocket
expenses reasonably and necessarily incurred by the Executive during his
employment by the Company. The Executive's right to reimbursement of such
expenses is hereby expressly conditioned on the Company's receipt of appropriate
documentation of such expenses so as to preserve any claim of deductibility of
suchM expenses by the Company for Federal income tax purposes. Such expenses
shall be reimbursed promptly upon receipt of all required documentation in
accordance with the Company's customary expense reimbursement policy.
(d) The Company and the Executive acknowledge that the Executive
is entitled to elect to receive continuation of medical coverage pursuant
to Comprehensive Omnibus Budget Reconciliation Act ("COBRA"), and the
Executive hereby elects, effective as of the Effective Date, such continuation
of coverage. From the Effective Date through June 30, 1998, the Company shall
pay on behalf of the Executive the monthly premiums payable by the Executive
in connection therewith. The Executive shall be responsible for all monthly
premiums payable thereafter for so long as the Company is required to provide
coverage and the Executive wishes to remain covered under COBRA. Notwithstanding
the foregoing, in the event that the Executive commences full-time employment
with another person or entity prior to June 30, 1998, then beginning on the
effective date of coverage under such successor employer's medical insurance,
the Company shall no longer be responsible for payment of any such monthly
premiums.
(e) All options granted to the Executive pursuant to the Company's
1997 Stock Compensation Program are hereby terminated as of the Effective Date.
Any agreement relating to such options shall be null and void and of no further
force and effect.
(f) The Option Agreement, dated May 5 1996, between the Executive and
the Company shall remain in full force and effect notwithstanding the
termination of the Executive's employment hereunder.
(g) Pursuant to a separate stock option agreement, a copy of which is
attached hereto as Exhibit A (the "Option Agreement"), the Company shall grant
to the Executive an option covering One Hundred Three Thousand Three Hundred
Thirty Three (103,333) shares of the common stock of the Company at an exercise
price of $0.55 per share (the "New Option"). The New Option shall be exercisable
commencing on the Effective Date, shall terminate twelve months from the
Effective Date and shall otherwise be subject to the terms of the Option
Agreement.
3. Consulting Relationship.
(a) During the period commencing on the Effective Date and
terminating on June 30, 1998 (the "Consulting Period"), upon the request of
either the Chief Executive Officer or the President of the Company, the
Executive will provide advice to the Company and its subsidiaries regarding
matters within his area of expertise applicable to the Company or its
subsidiaries (the "Consulting Services"). Such Consulting Services may be
rendered in person at the offices of the Company, at some other mutually
agreeable place, by telephone or by correspondence; provided, however, that
the Executive shall not be obligated to provide Consulting Services on a
particular day if the provision of such Consulting Services on such date
would interfere with the Executive's full-time employment by another employer.
Except as otherwise agreed between the parties hereto, the Executive will not
be obligated to render Consulting Services hereunder on more than five days
in any month.
(b) The Company shall pay to the Executive a consulting fee of $65
per hour for each hour (or portion thereof) during which the Executive provides
Consulting Services to the Company and its subsidiaries (the "Consulting Fee").
Payment of Consulting Fees shall be made monthly in arrears no later than the
first business day of each calendar month following a month in which Consulting
Services have been provided.
(c) In addition to the payment of the Consulting Fee, the Company
will reimburse the Executive for all out-of-pocket expenses reasonably
and necessarily incurred by the Executive in connection with the provision
of Consulting Services hereunder; provided that the Company has approved
such expenses in advance. The Executive's right to reimbursement of such
expenses is hereby expressly conditioned on the Company's receipt of
appropriate documentation of such expenses so as to preserve any claim of
deductibility of such expenses by the Company for Federal income tax purposes.
Approved expenses shall be reimbursed promptly upon receipt of all required
documentation.
4. Confidentiality Covenant; Non-solicitation; Non-competition.
(a) The Executive recognizes that both during the course of his
employment with the Company and during the Consulting Period, the Executive has
had access to and has acquired and will continue to have access to and acquire
confidential and proprietary information relating to the Company and its
subsidiaries (the "Proprietary Information"). The Executive acknowledges that
the Proprietary Information has been and will continue to be of critical
importance to the business and operations of the Company and its subsidiaries.
Accordingly, the Executive shall use such Proprietary Information only in
connection with the provision of Consulting Services hereunder and shall not,
without the express prior written consent of the Company, directly or
indirectly, disclose any Proprietary Information to any other person or use any
such Proprietary Information, either directly or indirectly, for his benefit or
for the benefit of any third party. At the request of the Company, the Executive
shall immediately return to the Company all Proprietary Information provided to
the Executive by or on behalf of the Company or any of its subsidiaries and
shall destroy all other Proprietary Information then in his possession or
subject to his control and shall certify such destruction to the Company. Under
no circumstances shall the Executive retain any copies of materials containing
Proprietary Information, or any documents, notes, memoranda, studies, analyses
or other material reduced to a tangible form containing Proprietary Information.
The Executive's obligations under this Section 4(a) shall survive any
termination or expiration of this Agreement forever.
The term "Proprietary Information" does not include information which
(i) is or becomes generally available to the public (other than as a result of a
disclosure by the Executive or a representative of the Executive) or (ii)
becomes available to the Executive on a non-confidential basis from a source
other than the Company or one of its representatives which the Executive
reasonably believes is entitled to disclose it.
(b) Commencing on the date hereof and continuing until the first
anniversary of the end of the Consulting Period, the Executive shall not,
without the express prior written consent of the Company, directly or
indirectly, (i) solicit or assist any third party in soliciting for employment
any employee employed by the Company or any of its subsidiaries or any employee
who has voluntarily terminated his or her employment with the Company or any of
its subsidiaries during the period of this restriction ("Employees"), or (ii)
employ, attempt to employ or materially assist any third party in employing or
attempting to employ any Employee. The Executive's obligations under this
Section 4(b) shall survive any termination or expiration of this Agreement.
(c) Commencing on the date hereof and continuing until the first
anniversary of the end of the Consulting Period, the Executive shall not,
without the express prior written consent of the Company, directly or
indirectly, any where in the world (x) engage in the design, manufacture,
assembly, sale, maintenance or servicing of high-power amplifiers, satellite
communications equipment or transmitting and receiving equipment (or related
components) used in connection with the provision of local multi-point
distribution services (collectively, a "Competing Business"), or (y) serve as an
officer, director, employee, partner, member, manager or consultant to or
beneficially own any equity interest (other than an interest of less than 2% of
the outstanding voting power of any publicly traded company) in any Competing
Business. The Executive's obligations under this Section 4(c) shall survive any
termination or expiration of this Agreement.
(d) The Executive acknowledges that, in the event of any breach
of this Section 4 by him, the Company and its subsidiaries would be irreparably
and immediately harmed and could not be made whole by monetary damages.
Accordingly, the Company, in addition to any other remedy to which it may be
entitled, shall be entitled to temporary, preliminary and permanent injunctive
relief to prevent breaches of the provisions of this Section 4 and to compel
specific performance of the provisions hereof. The Company shall not be
required to post a bond or other security in connection with the granting of
any such relief. These remedies shall not be deemed to be exclusive remedies
for a violation of this Agreement but shall be in addition to all other remedies
available to the Company at law or in equity.
(e) The provisions of this Section 4 shall supersede the provisions
of any other similar covenants to which the Executive may be a party or by which
he may be bound, all of which shall be null and void and of no further force and
effect.
5. Release.
(a) The parties hereto confirm and warrant that they have not
caused or permitted to be filed any pending charge, complaint or action against
each other or, in the case of the Executive, any Released Party (as defined
in Section 5(h) below).
(b) The parties hereto hereby expressly warrant that they have not
assigned any claim that they have or may have against the other or, in the case
of the Executive, any Released Party, to any person or entity.
(c) The Executive understands that there are various state and
federal laws that prohibit employment discrimination on the basis of age, sex,
race, color, national origin, religion, disability and other categories, and
that these laws are enforced by the courts and various government agencies.
The Executive intends and does give up any rights he may have under these laws
or any other laws with respect to his employment with the Company or any of
its subsidiaries, or the termination of that employment.
(d) Subject to Section 5(g) hereof, the Executive hereby releases
and forever discharges each Released Party from any and all actions, demands,
causes of action and claims whatsoever, known or unknown, suspected or
unsuspected, the Executive ever had, now has, or shall have (whether in
law, equity, or otherwise) against any Released Party with respect to any
matter, event or condition occurring or arising on or prior to the date
of the Executive's execution of this Agreement, including, but not limited to,
claims for breach of an implied or expressed employment contract, claims for
unlawful discharge, claims alleging a violation of Title VII of the Civil Rights
Act of 1964, The Age Discrimination in Employment Act of 1967, The Civil
Rights Act of 1866, The Americans with Disabilities Act, The Occupational
Safety and Health Act, The Employee Retirement Income Security Act, The Fair
Labor Standards Act, The Equal Pay Act, The Family and Medical Leave Act, the
New York State Human Rights Law, the New York City Human Rights Law, claims
pursuant to federal, state or local law regarding discrimination based on race,
age, sex, religion, marital status, disability, sexual preference or national
origin, claims for alleged violation of any other local, state, or federal
law, regulations, ordinance or public policy having any bearing whatsoever
on the terms or conditions of the Executive's employment with the Company
or any of its subsidiaries or the termination thereof, claims pursuant to
common law, or claims arising directly or indirectly out of the Executive's
employment by or separation from employment with the Company or any of its
subsidiaries. The Executive acknowledges that, as of the date of this Agreement,
he is not aware of any such actions, demands, causes of action or claims that
may be brought by him or on his behalf against any Released Party.
Subject to Section 5(g) hereof, the Company (on its own behalf and on
behalf of its subsidiaries) hereby releases and forever discharges the Executive
from any and all actions, demands, causes of action and claims whatsoever, known
or unknown, suspected or unsuspected, the Company or any of its subsidiaries
ever had, now has, or shall have (whether in law, equity, or otherwise) against
the Executive with respect to any matter, event or condition occurring or
arising on or prior to the date of the Executive's execution of this Agreement
having any bearing whatsoever on the terms or conditions of the Executive's
employment with the Company or any of its subsidiaries or the termination
thereof, claims pursuant to common law, or claims arising directly or indirectly
out of the Executive's employment by or separation from employment with the
Company or any of its subsidiaries.
(e) Subject to Section 5(g) hereof, the parties hereto covenant and
agree never to file any suit, action, cause of action, or other claim against
the other party or, in the case of the Executive, any Released Party with
respect to any matter, event or condition occurring or arising on or prior to
the date hereof.
(f) Subject to Section 5(g) hereof, each of the Company and the
Executive hereby releases and discharges the other party and, in the case of the
Executive, each Released Party not only from any and all claims which such party
could have made on its own behalf but also from those which may or could be
brought by any person, governmental authority or organization on its behalf, and
each of the Company and the Executive specifically waives any right to become,
and promises not to become, a member of any class in any proceeding or case in
which any claim or claims against the other or, in the case of the Executive,
any Released Party may arise, in whole or in part, from any event which occurred
on or before the date of this Agreement.
(g) Each of the Company and the Executive agree that the releases
given pursuant to this Section 5 shall not be applicable to any criminal acts,
knowing violations of law, breaches of fiduciary duty or acts of intentional and
willful misconduct on the part of the other party. Each of the Company and the
Executive acknowledges that nothing in this Section 5 precludes either party
from taking any legal action against the other for the breach by either party of
any provision of this Agreement. In addition to any other remedies available at
law or by agreement, in the event of any such breach by the Executive, the
Company shall be entitled to recover any and all amounts theretofore paid to the
Executive pursuant to Sections 2 and 3 above.
(h) For purposes of this Agreement, the term "Released Party" shall
include the Company, its parents, subsidiaries and affiliates, the officers,
directors, shareholders, agents and employees of any of them and their
respective heirs, successors, assigns and legal representatives.
6. Confidentiality; Cooperation.
(a) The Executive shall not disclose either directly or indirectly to
any person in any manner whatsoever any information of any kind regarding the
terms of this Agreement, except the Executive may disclose the existence and
terms of this Agreement to his attorneys, family members, tax and financial
advisors and prospective employers and to others to the extent required by law;
provided however that each such person receiving such information shall be
required to maintain the confidentiality of such information (other than in the
event of a disclosure as required by law).
(b) The exclusive statements which shall be made to any person
concerning the termination of the Executive's employment are (a) the statements
set forth in the press release annexed hereto as Exhibit B (the "Press Release")
or in any other press release that the Company may issue; provided, however,
that (i) the Executive acknowledges that the Company shall not be required to
issue the Press Release or any other press release relating to the termination
of the Executive's employment, and (ii) in the event that the Company issues a
press release which varies materially from the form of the Press Release
attached hereto, the Executive shall have the right to approve the form of such
press release, which approval shall not be unreasonably withheld or delayed, and
(b) a statement to indicate that the Executive and the Company have come to an
amicable resolution regarding the Executive's resignation; provided, however,
that this Section 6(b) shall not preclude the Company from making such
disclosures as are necessary on a confidential basis to its Board of Directors,
provided that such directors shall maintain the confidentiality of such
information (other than in the event of a disclosure as required by law), and
such other disclosures as are required by law.
(c) The Executive shall not for any reason whatsoever, directly or
indirectly, either alone or jointly with any person and whether as principal,
servant or agent, in any way comment (in writing or otherwise) negatively about
the Company, any of its subsidiaries or affiliates or their respective officers,
directors, shareholders or employees to any person or entity, disparage its
products, plans or management to any supplier, vendor, contractor, creditor,
shareholder or potential shareholder, media, subcontractor, competitor, customer
or potential customer or any other person or entity, or do anything else to
affect adversely the good will of the Company or any of its subsidiaries and
affiliates. The Company hereby covenants with the Executive that it will not for
any reason whatsoever, directly or indirectly in any way comment (in writing or
otherwise) negatively about the Executive to any person.
(d) The Executive shall cooperate fully with the Company in connection
with any and all existing and future investigations or litigation brought by,
against or involving the Company or any of its subsidiaries, officers or
directors, whether administrative, civil or criminal in nature, in which and to
the extent the Company, in its reasonable discretion, deems necessary. The
Company shall reimburse the Executive for all reasonable out-of-pocket expenses
incurred by the Executive in connection with his cooperation provided such
expenses are approved in advance by the Company. The Company shall use
commercially reasonable efforts to limit any disruption to the Executive's
employment caused by the Executive's cooperation in any such investigation or
litigation. In the event that the Executive is required to take time off from
full-time employment in order to fulfill his obligations under this Section
6(d), the Company shall pay the Executive for any lost wages resulting therefrom
subject to an hourly cap equal to the Consulting Fee.
(e) The Executive has disclosed to an appropriate officer of the
Company or to the Board of Directors any information in his possession or
subject to his control concerning any conduct of the Company, any of the
Company's subsidiaries or any employee that he has reason to believe is or may
be unlawful or unethical in any respect.
7. Withholding. The Company shall withhold from payments due to the
Executive such amounts as the Company shall reasonably determine it is required
by law to withhold.
8. Severable Provisions. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions, and any
partially unenforceable provision to the extent enforceable in any jurisdiction,
shall nevertheless be binding and enforceable.
9. Binding Agreement; Assignment. The rights and obligations of the
parties hereto under this Agreement shall inure to the benefit of and shall be
binding upon the parties' respective successors and assigns. This Agreement is
personal to the Executive and may not be assigned by the Executive without the
Company's prior written consent. Any assignment or purported assignment by the
Executive in violation of this Section 9 shall be null and void
10. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be delivered personally, by facsimile or
sent by certified, registered or express air mail, postage prepaid, and shall be
deemed given which so delivered personally, or by facsimile, or if mailed, five
days after the date of mailing, as follows:
If to the Company: LogiMetrics, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxx
If to the Executive: Xxxxxxx X. Xxxxxxx XX
00 Xxx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other addresses as shall be furnished in writing to the other party
hereto.
11. Waiver. Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the parties herein are cumulative and the
waiver by a party of any single remedy shall not constitute a waiver of such
party's right to assert all other legal remedies available to such party under
the circumstances.
12. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
choice of law principles thereof.
13. Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing this Agreement.
14. Entire Agreement. This Agreement shall constitute the entire
agreement among the parties with respect to the subject matter hereof and shall
supersede all previous written, oral or implied understandings or agreements
among them with respect to such matters. No modification, termination or
attempted waiver of this Agreement shall be valid unless in writing and signed
by the party against whom the same is sought to be enforced.
15. ATTORNEY REVIEW. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE HAS
BEEN GIVEN AT LEAST TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT
AND THAT, PRIOR TO THE EXECUTIVE'S EXECUTING THIS AGREEMENT, THE COMPANY HAS
ADVISED THE EXECUTIVE TO AND HAS GIVEN HIM THE OPPORTUNITY TO HAVE HIS OWN
INDEPENDENT ATTORNEY REVIEW THIS AGREEMENT.
16. AGREEMENT EFFECTIVE. THIS AGREEMENT SHALL BE EFFECTIVE AND
ENFORCEABLE ON THE EIGHTH (8TH) DAY AFTER EXECUTION BY THE EXECUTIVE. THE
PARTIES UNDERSTAND AND AGREE THAT THE EXECUTIVE, IN HIS INDIVIDUAL CAPACITY, MAY
REVOKE THIS AGREEMENT AFTER HAVING EXECUTED IT BY SO ADVISING THE COMPANY IN
WRITING, PROVIDED SUCH WRITING IS RECEIVED BY THE COMPANY AT THE ADDRESS SET
FORTH IN SECTION 10 ABOVE NO LATER THAN 11:59 P.M. ON THE SEVENTH (7TH) DAY
AFTER HIS EXECUTION OF THIS AGREEMENT. IF THE EXECUTIVE REVOKES THIS AGREEMENT,
IT SHALL NOT BE EFFECTIVE OR ENFORCEABLE, AND THE EXECUTIVE SHALL NOT BE
ENTITLED TO RECEIVE OR RETAIN THE PAYMENTS AND OTHER BENEFITS OF THE AGREEMENT.
17. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original agreement, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
LOGIMETRICS, INC.
By:/s/Xxxxxx X. Xxxxxx
_____________________________________
Xxxxxx X. Xxxxxx, President and Chief
Operating Officer
/s/Xxxxxxx X. Xxxxxxx XX
__________________________________
Xxxxxxx X. Xxxxxxx XX
Exhibit A
Form of Stock Option Agreement
Exhibit B
Press Release
