AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January 1, 1998, between AMERICAN
TECHNICAL CERAMICS CORP., a Delaware corporation having its principal place of
business at Xxx Xxxxxx Xxxx, Xxxxxxxxxx Xxxxxxx, Xxx Xxxx 00000 (the "Company"),
and XXXXX XXXX, who resides at 0000 Xxxxxx Xxx Xxx, Xxxxx Xxxxx Xxxxx, Xxxxxxx
00000 ("Employee").
W I T N E S S E T H :
WHEREAS, the Company desires to extend the Employment Agreement, dated
September 10, 1993 (the "September 1993 Agreement"), between the Company and
Employee to provide for Employee's continued performance of services for the
Company and any present or future parent, subsidiary, or affiliate of the
Company, and Employee desires to continue to perform such services, on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt, adequacy, and
sufficiency of which are hereby acknowledged, the Company and Employee hereby
agree that, effective January 1, 1998, the September 1993 Agreement is hereby
extended and amended and restated in its entirety to read as follows:
1. Term. The Company agrees to employ Employee, and Employee agrees to
serve as director of the Company's metallized substrates and circuits business,
upon the terms and conditions hereinafter set forth, for a period commencing on
January 1, 1998 and ending on December 31, 2001, or for such shorter period as
may be provided for herein. The period during which Employee is employed
hereunder is hereinafter referred to as the "Employment Period."
2. Duties.
(a) Employee agrees to use his best efforts, skills, and
abilities to perform faithfully all duties consistent with his position (or any
other position of a similar nature) assigned to him from time to time by the
Company. In the performance of his duties, Employee shall be subject to the
direction of the Board of Directors, the President and Chief Executive Officer
of the Company, and any officer of the Company designated by the Board or the
President and Chief Executive Officer of the Company. Employee agrees to devote
his full time, labor, energies, and attention to the performance of such duties.
(b) Except as provided in this paragraph, Employee agrees not
to become involved in any personal investment or business matters which may
detract from the performance of his duties or otherwise adversely affect the
Company or any present or future parent, subsidiary, or affiliate of the
Company. The Company acknowledges that Employee owns certain ceramic substrates,
the entire inventory of which is maintained by Employee at the Company's
facilities in Jacksonville, Florida and placed with the Company on consignment.
Physical control of said substrates shall remain exclusively with the Company
and only such Company personnel as are specifically designated by the Company
shall have authorized access thereto. Employee represents and warrants that he
owns such substrates free of all liens, charges and encumbrances of every kind
and nature whatsoever. The Company may, from time to time, either (i) elect to
purchase any of such substrates at the applicable price therefore set forth on
Exhibit A hereto, or (ii) sell the substrates to third parties on behalf of
Employee. If sales of such substrates are made to third parties, the Company
shall have the right to retain one-half of such proceeds in excess of the amount
Employee would have received had the Company purchased such substrates pursuant
to this Paragraph 2(b). If Employee's employment with the Company is terminated
by the Company
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for any reason (or for no reason), the Company shall have the option,
exercisable within 60 days of such termination, to purchase all or any portion
of such substrates at the price determined as set forth above or to deliver such
substrates (or any unpurchased portion thereof) to Employee at Employee's
direction and expense. Employee shall not be permitted to purchase and sell any
additional inventories of substrates and shall not sell any of the existing
inventory of substrates other than pursuant to the provisions of this Paragraph
2(b).
3. Place of Performance. In connection with his employment by the
Company, Employee shall be based at the Company's offices in Jacksonville,
Florida. Employee shall be available to travel at such times and to such places
as may be necessary in connection with the performance of his duties hereunder.
4. Annual Compensation. (a) Salary. During the Employment Period,
Employee shall receive a base salary at the annual rate of $90,000, plus such
other amounts, if any, as the Board of Directors of the Company, in its sole
discretion, may from time to time determine. Employee's salary shall be payable
in weekly installments or at such other frequency as the Company may from time
to time determine (but not less frequently than monthly).
(b)(i) Thin Film Incentive Bonus. In addition to his base
salary, during the Employment Period, Employee shall be
entitled to an annual incentive bonus (the "Thin Film
Incentive") equal to a percentage of the Thin Film Profit
Contribution (as hereinafter defined) for the calendar year to
which such Thin Film Incentive relates, such percentage to be
equal to 5.0% for calendar year 1998, 4.0% for calendar year
1999, and 3.5% for each of the calendar years 2000 and 2001.
The Company shall pay quarterly estimates of the Thin Film
Incentive to Employee as set forth herein.
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(ii) The Thin Film Incentive shall be calculated on a
quarterly basis and payments in respect thereof shall be made
within 45 days after the end of the calendar quarter to which
such calculation relates. In the event the Thin Film Profit
Contribution calculated for any calendar quarter is less than
zero then no payment shall be made in respect of said quarter
and the amount by which the Thin Film Profit Contribution is
less than zero shall be carried forward to reduce the Thin
Film Profit Contribution, if any, in the immediately
succeeding calendar quarters in the same calendar year. No
such negative amount shall be carried forward beyond the end
of the calendar year in which it is recorded.
(iii) As used herein, "Thin Film Profit Contribution"
shall mean (x) gross revenues (net of returns) received by the
Company from the sale of products designated by the Company as
"Thin Film Products," plus (y) an amount equal to 20% of the
identifiable costs incurred by the Company's metalized
substrates and circuits business which is under Employee's
direction in connection with products provided or services
performed by such business specifically and exclusively for
other businesses and product lines of the Company other than
Thin Film Products, the provision or performance of which has
been specifically requested by the President or the Senior
Vice President -- Operations of the Company, minus (z)
identifiable costs attributable to the production, marketing,
sale and administration of Thin Film Products (exclusive of
costs specifically and exclusively attributable to products or
services covered by subclause (y) above), including, without
limitation, (1) salary, bonuses and benefits and other costs
for all direct and indirect personnel involved in the
production, promotion, marketing, sale and administration
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of Thin Film Products, including Employee (but excluding
Employee's Thin Film Incentive); (2) all materials and
supplies, outside services, and maintenance and repair
services relating to the production, promotion, marketing,
sale and administration of Thin Film Products; (3) salary,
bonuses, benefits and other costs for all internal sales
personnel attributable to the sale of Thin Film Products; (4)
outside sales representatives' commissions attributable to the
sale of Thin Film Products; (5) departmental travel expenses;
(6) advertising and promotion expenditures attributable to the
marketing, promotion and sale of Thin Film products, which are
approved in advance by Employee; and (7) depreciation of
assets used in the production, promotion, marketing, sale and
promotion of Thin Film Products. As of the date hereof, the
products designated as "Thin Film Products" shall be as set
forth on Exhibit B hereto.
(c) Modified Operating Director's Bonus. During the Employment
Period, Employee shall also be entitled to receive any incentive bonus to which
Employee would otherwise be entitled as an "Operating Director" of the Company
less an amount equal to 0.5% of the Thin Film Profit Contributions (if greater
than zero) calculated for the period to which such Operating Director's
incentive bonus pertains. Employee hereby acknowledges that Operating Directors'
bonuses are awarded in the sole discretion of the Board of Directors of the
Company and are generally paid on a quarterly basis, if at all.
(d) Deductions. The Company shall deduct from all amounts
payable to Employee all taxes and other amounts which the Company is now or may
hereafter become obligated to deduct under any applicable law.
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5. Benefits. Employee shall be entitled to participate in such employee
benefit plans established by the Company from time to time and generally made
available to employees at levels similar to Employee's for which he meets the
eligibility requirements. Nothing contained herein shall require the Company to
establish or maintain any employee benefit plan.
6. Termination.
(a) The Company may terminate this Agreement, without
liability (except as provided in this Paragraph 6(a) and in the last two
sentences of Paragraph 6(c) hereof), at any time and for any reason whatsoever
(or for no reason) by giving 30 days' prior written notice to Employee. The
Company may, at its option, elect to give Employee less than 30 days' prior
written notice of such termination, provided that if the Company elects to do
so, it shall pay to Employee, upon the effective date of such termination, in
addition to the amounts, if any, to which he may be entitled pursuant to the
last two sentences of Paragraph 6(c) hereof, an amount equal to the salary, at
the rate provided in Paragraph 4(a) hereof, and such portion of the bonuses, at
the rates provided in paragraphs 4(b) hereof, he would have received had he
worked the number of days less than 30 that he is given notice of such
termination.
(b) Notwithstanding anything herein contained to the contrary,
if on or after the date hereof and prior to the end of the Employment Period,
(i) either (A) Employee shall be physically or
mentally incapacitated or disabled or otherwise unable fully
to discharge his duties hereunder ("Disabled") for a period of
90 consecutive days or for an aggregate of 90 days within any
period of twelve consecutive months, (B) Employee shall be
convicted of a felony or other crime of moral turpitude, (C)
Employee shall commit any act or omit to take any
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action in bad faith to the detriment of the Company or any
present or future parent, subsidiary, or affiliate of the
Company, (D) Employee shall wilfully fail or refuse to perform
any duties consistent with his position (or any other position
of a similar nature) assigned to him from time to time, or (E)
Employee shall breach any other term of this Agreement and
fail to correct such breach within 10 days after receiving
notice of the same, or if such breach is not capable of
correction within such 10 day period, Employee shall fail to
take substantial steps necessary to correct such breach within
such 10 day period, then, and in each such case, the Company
shall have the right to give notice of termination of
Employee's services hereunder as of a date to be specified in
such notice, and this Agreement shall terminate on the date so
specified, or (ii) Employee shall die, then this Agreement
shall terminate on the date of Employee's death.
(c) If this Agreement is terminated by the Company for any of
the reasons set forth in Paragraph 6(b)(i)(B), (C), (D) or (E) hereof, Employee,
shall be entitled to receive only his salary at the rate provided in Paragraph
4(a) hereof, and a portion of the bonuses payable to him as provided in
Paragraphs 4(b) hereof, in each case through and including the date upon which
termination shall take effect. If this Agreement is terminated by the Company
pursuant to Paragraph 6(a), 6(b)(i)(A) or 6(b)(ii), then, subject to the next
succeeding sentence, Employee or his estate, as the case may be, shall be
entitled to receive annually for a period of two years from the date of
termination, in lieu of any other payments or other consideration to which he
would otherwise be entitled hereunder, an amount equal to the lesser of (i)
$100,000, or (ii) 60% of Employee's highest total compensation for any
consecutive 12 months during the last 24 months of Employee's employment, each
such annual amount to be payable in 12 equal monthly
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installments, the first of which shall be payable one month after the date upon
which such termination shall take effect. If during the Employment Period, a
person or party other than Xxxxxx Xxxxxxx acquires more than 50% of the voting
power of the Company (a "Change in Control") and, subsequent to such
acquisition, this Agreement is terminated by the Company pursuant to Section
6(a) hereof, Employee shall be entitled to receive, in lieu of any other
payments to which he is entitled hereunder, monthly payments equal to the
monthly payments calculated in accordance with the immediately preceding
sentence for the number of months equal to the greater of (i) 24 and (ii) the
number of full calendar months during the period commencing on the date of
termination and ending on December 31, 2001, the first of which shall be payable
one month after the date upon which such termination shall take effect.
(d) The provisions of this Paragraph 6 shall survive the
termination of Employee's employment and of this Agreement.
7. Confidentiality.
(a) Beginning on the date hereof, and at any time hereafter,
Employee shall treat as confidential any proprietary, confidential, or secret
information relating to the business or interests of the Company or any future
parent, subsidiary, or affiliate of the Company, including, but without
limitation, the organizational structure, operations, business plans, or
technical projects of the Company or any future parent, subsidiary, or affiliate
of the Company, and any research datum or result, invention, trade secret,
customer list, process, or other work product developed by or for the Company or
any future parent, subsidiary, or affiliate of the Company, whether on the
premises of the Company or elsewhere ("Confidential Information"). Beginning on
the date hereof, and at any time hereafter, the Employee shall not disclose,
utilize, or make accessible in any
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manner or in any form any Confidential Information other than in connection with
performing the services required of him under this Agreement, without the prior
written consent of the Company.
(b) Employee hereby agrees that any and all information,
inventions and discoveries, whether or not patentable, that he conceives and/or
creates during the Employment Period and any extensions thereof, and for a
period of six months following Employee's termination, which are a direct or
indirect result of work performed hereunder, shall be the sole and exclusive
property of the Company. Employee hereby assigns to the Company any and all
right, title, and interest which he has or may acquire in the same. Employee
further agrees that he will promptly execute any and all applications,
assignments, or other instruments which an officer of the Company or the Board
of Directors of the Company shall deem necessary or useful in order to apply for
and obtain Letters Patent in the United States and all foreign countries for
said information, inventions, and discoveries and in order to assign and convey
to the Company the sole and exclusive right, title, and interest in and to said
information, inventions, discoveries, patent applications, and patents thereon.
The Company will bear the cost of preparation of all such patent applications
and assignments, and the cost of prosecution of all such patent applications in
the United States Patent Office and in the patent offices of foreign countries.
(c) All documents, records, apparatus, equipment, and other
physical property furnished to Employee by the Company or produced by Employee
or others in connection with his employment shall be and remain the sole
property of the Company. Employee shall return and deliver such property to the
Company as and when requested by the Company.
(d) Employee agrees that for a period of two years from the
termination of this Agreement he will not, directly or indirectly, employ or
solicit the employment or engagement by others of any employees of, or
consultants hired by, the Company or any future parent, subsidiary,
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or affiliate of the Company, within a period of one year after such person is no
longer employed or retained by the Company or any future parent, subsidiary or
affiliate of the Company.
(e) The Employee agrees that the provisions of this Paragraph
7 shall survive the termination of his employment and of this Agreement.
8. Non-Competition. Employee acknowledges that in September 1993, the
Company purchased from Miltech Corp., a corporation of which Employee was the
principal stockholder, certain assets which were used by the Company to initiate
its metallized substrates and circuits business. Employee further acknowledges
and agrees that the retention of Confidential Information is essential to the
continued existence of the Company, and that such information constitutes trade
secrets, disclosure of which would irreparably harm the business of the Company.
Accordingly, except as provided in Paragraph 2(b), Employee agrees that he will
not during the period he is employed by the Company or any parent, subsidiary,
or affiliate of the Company, under this Agreement or otherwise, engage in, or
otherwise directly or indirectly be employed by, or act as a consultant, advisor
or lender to, or be a director, officer, employee, stockholder, owner, or
partner of, any other business or organization, whether or not such business or
organization now is or shall then be competing with the Company or any parent,
subsidiary, or affiliate of the Company. Employee further agrees that (i) if
prior to a Change in Control he is terminated by the Company during the
Employment Period for any reason (or for no reason) other than a reason set
forth in Paragraph 6(b)(i)(B), (C), (D) or (E) hereof, then for the period
during which Employee is receiving payments from the Company pursuant to the
penultimate sentence of Paragraph 6(c) hereof, (ii) if subsequent to a Change of
Control he is terminated by the Company during the Employment Period for any
reason (or for no reason) other than a reason set forth in Xxxxxxxxx
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0(x)(x)(X), (X), (X) or (E) hereof, then provided Employee is still receiving
payments from the Company pursuant to the last sentence of Paragraph 6(c)
hereof, for a period of two years after such termination, and (iii) if Employee
resigns or if he is terminated by the Company during the Employment Period for
any of the reasons set forth in Paragraph 6(b)(i)(B), (C), (D) or (E) hereof,
then for a period of two years after such resignation or termination, Employee
shall not take employment with any business organization which competes with the
Company or any parent, subsidiary or affiliate of the Company, where Employee's
job description(s) and/or function(s) at said business organization include
providing any advice or information concerning any aspect of the design,
development, production, manufacture or sale of metallized substrates and
circuits, unless the Company, its parents, subsidiaries or affiliates have all
discontinued their metallized substrate and circuits business. Unless a Change
of Control has occurred, the Company may elect to extend Employee's obligation
pursuant to the preceding sentence for a period of up to two years subsequent to
the later of the expiration of the Employment Period or the date of termination
of Employee's employment with the Company under circumstances which are not
covered by the preceding sentence by giving Employee notice of its election to
do so and by paying Employee in accordance with the penultimate sentence of
Paragraph 6(c) hereof (with appropriate reductions in the case in which the
period of time the Company has elected to require Employee to comply with said
obligations in less than two years) as if Employee's employment had been
terminated during the Employment Period for any of the reasons referred to
therein. Notwithstanding anything contained herein to the contrary, the
provisions of this Paragraph 8 will not be deemed breached merely because
Employee owns not more than 1% of the outstanding common stock of a corporation,
if, at the time of its acquisition by Employee, such stock is listed on a
national securities exchange, is reported on NASDAQ, or is regularly traded in
the over-the-counter market
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by a member of a national securities exchange. The obligations of Employee
pursuant to this Paragraph 8 shall survive the termination of this Agreement.
9. Scope of Agreement. Employee acknowledges that the restrictions
contained in Paragraphs 7 and 8 are a condition of his employment by the
Company. Employee further acknowledges that such restrictions are reasonable in
view of the nature of the business in which the Company is engaged and his
knowledge of the Company's business, and that any breach of his obligations
under Paragraphs 7 and 8 hereof will cause the Company irreparable harm for
which the Company will have no adequate remedy at law. As a result, the Company
shall be entitled to the issuance by a court of competent jurisdiction of an
injunction, restraining order, or other equitable relief in favor of itself
restraining Employee from committing or continuing any such violation. Any right
to obtain an injunction, restraining order, or other equitable relief hereunder
will not be deemed a waiver of any right to assert any other remedy the Company
may have under this Agreement or otherwise at law or in equity.
10. Representations and Warranties. Employee represents and warrants to
the Company that (i) Employee is under no contractual or other restriction or
obligation which is inconsistent with the execution of this Agreement, the
performance of his duties hereunder, or the other rights of the Company and any
present or future parent, subsidiary, or affiliate of the Company hereunder, and
(ii) Employee is under no physical or mental disability that would hinder the
performance by him of his duties under this Agreement.
11. Assignment. Under no circumstances shall Employee assign, pledge or
otherwise dispose of any of his rights or obligations under this Agreement, and
any such attempted assignment, pledge, or disposition shall be void and shall
relieve the Company of all its obligations
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under this Agreement. The Company may assign any of its rights or obligations
under this Agreement to any present or future parent, subsidiary, affiliate, or
successor.
12. Entire Agreement. This Agreement is the entire agreement between
the Company and Employee with respect to the subject matter hereof and
supersedes all other agreements, written or oral, concerning the subject matter
hereof.
13. Waivers and Further Agreements Any waiver of any breach of any
terms or conditions of this Agreement shall not operate as a waiver of any other
breach of such terms or conditions or any other term or condition, nor shall any
failure to enforce any provision hereof on any one occasion operate as a waiver
of such provision or of any other provision hereof or a waiver of the right to
enforce such provision or any other provision on any subsequent occasion.
14. Amendments. This Agreement may not be amended, nor shall any
waiver, change, modification, consent, or discharge be effected, except by an
instrument in writing executed by or on behalf of the party against whom
enforcement of any such amendment, waiver, change, modification, consent, or
discharge is sought.
15. Severability
(a) If any provision of this Agreement shall be held or deemed
to be invalid, inoperative, or unenforceable as written, it shall be construed,
to the greatest extent possible, in a manner which shall render it valid and
enforceable, and any limitation on the scope or duration of any such provision
necessary to make it valid and enforceable shall be deemed to be part thereof.
(b) If any provision of this Agreement shall be held or deemed
to be invalid, inoperative, or unenforceable as applied to any particular case
in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases,
because of the conflict or any provision with any constitution or statute or
rule of public policy or for any other reason, such circumstance shall not have
the
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effect of rendering the provision or provisions in question invalid,
inoperative, or unenforceable in any other jurisdiction or in any other case or
circumstance or of rendering any other provision or provisions herein contained
invalid, inoperative, or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute, or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, or unenforceable provision
had never been contained herein, and such provision reformed so that it would be
valid, operative, and enforceable to the maximum extent permitted in such
jurisdiction or in such case.
16. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York, without
giving effect to rules governing conflicts of law.
17. Courts. Any action to enforce any of the provisions of this
Agreement shall be brought in the courts of the State of New York. The parties
hereby consent to the jurisdiction of the courts of the State of New York.
18. Notices. Any notices required or permitted by this Agreement shall
be in writing and personally delivered or mailed by certified or registered
mail, return receipt requested, addressed to the parties at their addresses set
forth above, or to such other addresses as one party may specify to the other
party, from time to time, in writing. Any notice personally delivered shall be
deemed given at the time of receipt thereof, and any notice given by certified
or registered mail shall be deemed given at the time of certification or
registration thereof.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
AMERICAN TECHNICAL CERAMICS CORP.
By: /s/ Xxxxxx X. Xxxx - 1/29/98
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Xxxxxx X. Xxxx, Senior Vice President - Operations
/s/ Xxxxx Xxxx - 1/16/98
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Xxxxx Xxxx
