EXHIBIT 10.9.1
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of the 31st day of March,
2000 by and between HCC INDUSTRIES, INC., a Delaware corporation (the "Company")
and XXXXXXX FERRAID ("Employee"). The parties agree as follows. The capitalized
terms on Exhibit A have the meanings respectively assigned to them, which apply
equally to the singular and plural forms of the terms.
1. EMPLOYMENT
1.1 TERM. The Company agrees to employ Employee for the Term, and
Employee accepts such employment.
1.2 TITLE; REPORTING; POLICIES.
1.2.1 TITLE; DUTIES. Employee will serve as President and
Chief Executive Officer of the Company. Employee will faithfully perform the
duties of Employee's office to the best of Employee's ability. Employee will
have such duties and responsibilities as are generally consistent with such
position in a company of comparable present and projected size. Employee will
also serve without additional compensation in such executive capacities for one
or more direct or indirect subsidiaries of the Company as the Board from time to
time requests. Employee will also, subject to Employee's election as such, serve
as a member of any committee of the Board to which Employee may be elected or
appointed.
1.2.2 REPORTING. Employee will report directly to the
Chairman of the Board of Directors of the Company and will be subject to the
direction of the Board and to such limits on Employee's authority as the Board
from time to time imposes.
1.2.3 POLICIES. Employee will be subject to and comply with
the policies, standards and procedures generally applicable to senior executives
of the Company from time to time.
1.3 PLACE; TRAVEL.
1.3.1 PLACE OF EMPLOYMENT. The Company shall furnish
Employee with proper offices, other facilities and equipment, and such support
staff and services as are suitable for the performance of his duties and
functions hereunder. Employee will be based at the Company's offices in
Lakewood, New Jersey, or at offices in Rosemead or El Monte, California at the
discretion of Employee. Employee shall not be transferred to another location
outside of New Jersey without his prior, written consent.
1.3.2 TRAVEL. Employee will be expected to engage in
frequent travel as is required for the proper discharge of Employee's duties.
Employee shall be entitled to reimbursement for his travel expenses and when
flying between New Jersey and California, Employee shall be entitled to fly
first class except on flights where business class is available. While
traveling, Employee shall be entitled to stay in quality hotel accommodations.
1.4 EXCLUSIVE; OUTSIDE ACTIVITIES. Employee will devote
full and exclusive business time to the Company. The foregoing will not prohibit
Employee from: (a) passive ownership of real or personal property; (b) owning
less than 5% of any class of securities of a corporation that is publicly held;
(c) owning any class of securities of or being a partner in any other
corporation or business not competing directly or indirectly with the Company or
providing goods or services to the Company if, in each case (x) interests are
held for investment, (y) Employee does not become involved in active management
of an operating business, and (z) such ownership or management does not
materially interfere with the performance of Employee's duties. Employee may
also hold directorships or similar positions with nonprofit, charitable,
community or other similar organizations, so long as such activities do not
materially
interfere with the performance of Employee's duties. Any other directorships or
similar positions must be approved by the Board, which approval will not be
unreasonably withheld.
2. COMPENSATION AND BENEFITS
2.1 BASE SALARY. Employee will be paid the Base Salary during the
Term in accordance with the Company's policies.
2.2(a) PERFORMANCE BONUS - FY 2001. In addition to the Base Salary
payable under Section 2.1, the Company shall pay Employee an annual Performance
Bonus predicated upon the Company's achieving the EBITDA Target (the "EBITDA
Target") established by the Company and identified on Exhibit C annexed hereto
and made a part hereof, as determined by the Company's independent auditing firm
based upon the Company's fiscal year-end audited financial statement. The amount
of Employee's Performance Bonus is expressed as a percentage of his Base Salary
and corresponds to a percentage of the EBITDA Target set forth in Exhibit C. As
an example, in the event that the Company achieves 100% of the targeted EBITDA,
the Employee's Performance Bonus shall equal 35% of his Base Salary. This
Performance Bonus will decrease or increase as the Company falls short or
exceeds the EBITDA Target as shown by the graph on Exhibit C.
Any changes in the EBITDA Target will be evidenced by a substituted
Exhibit C to this Agreement which shall be initialed by the Chairman of the
Board of Directors and Employee and attached to, and made a part of, this
Agreement.
In the event that Employee is entitled to a Performance Bonus under
this Section 2.2, such bonus shall be paid within thirty (30) days of the
issuance of the Company's fiscal year-end audited financial statement.
In the event that this Agreement is terminated by the Company, unless
such termination is pursuant to Section 3.2.3, Employee shall be entitled to a
Performance Bonus for the fiscal year of the Company in which the termination
occurs, equal to the greater of (i) the Target Bonus for such fiscal year, or
(ii) Employee's actual Performance Bonus for the previous fiscal year.
2.2(b) PERFORMANCE BONUS - FY 2002 AND SUBSEQUENT FISCAL YEARS. For
fiscal years beginning April 1, 2001 and beyond, the employee shall be entitled
to a target bonus of not less than 35% of Base Salary. Such target bonus shall
be based upon a Bonus Plan developed for FY 2002 and subsequent years as
approved by the Board of Directors. The provisions of such Bonus Plans are at
the sole discretion of the Board except that such provisions must provide
employee with a reasonable opportunity to earn 35% of Base Salary.
2.3 STOCK OPTIONS. In consideration of Employee's execution of
this Agreement, the Company shall grant Employee an option to purchase 2,500
shares of the Company's common stock (the "Option"). The exercise price of the
Option shall be as follows:
Number of Shares subject to Option Exercise Price
1,000 $0
1,500 $370.49
The Option shall expire on, and shall not be exercisable on and after,
the tenth (10th) anniversary of the Effective Date, subject to earlier
expiration in accordance with Section 3 below. No portion of the Option shall be
exercisable on the Option's date of grant, but a percentage of the Option shall
become exercisable on, and shall remain exercisable on and after, each of the
first three (3) anniversaries of the Effective Date, as set forth in the table
below:
Percentage of Option which is
Anniversary of the Exercisable and Remains
Effective Date Exercisable Until Option Expires
0 0%
1st 33 1/3%
2nd 66 2/3%
3rd 100%
The foregoing notwithstanding, in the event of a Change of Control, the
Option shall be deemed to have become fully (i.e., 100%) vested and exercisable
and shall remain exercisable for a period of one (1) year thereafter regardless
of whether Employee continues to be employed by the Company or, if longer, then
for the period during which such Option would otherwise be exercisable under
this Agreement.
2.4 BENEFIT PROGRAMS. During the Term, Employee will be entitled
to participate in those Benefit Programs made generally available to the senior
executives of the Company, which shall in any event provide no less benefit to
Employee than those Benefit Programs in which Employee participates on the date
hereof.
2.5 EXPENSES. The Company will pay or reimburse Employee for all
reasonable travel (see Section 1.3.2), entertainment or other expenses incurred
by Employee in connection with the performance of his duties in accordance with
Company policy existing at the time the expense was incurred. Any such expenses
must be either specifically authorized by the Company or incurred in accordance
with Company policies. Employee must furnish the Company with evidence relating
to such expenses, as the Company reasonably requires, substantiating such
expenses for tax and accounting purposes.
2.6 CAR. The Company will either (a) provide Employee with the use
of a car (luxury class) or reimburse Employee in the amount of $750.00 per month
for car expenses and will provide maintenance and insurance in each case, in a
manner consistent with present practice of the Company.
2.7 D&O INSURANCE. The Company will furnish Employee with the same
Directors' and Officers' liability insurance furnished to other executive
officers from time to time, and use reasonable efforts to name Employee as a
named insured for four (4) years after the Term ends.
2.8 VACATION. Employee shall be entitled to four weeks paid
vacation per year, taken at a time, at employee's discretion, in order to best
meet employee's personal desires while minimizing any potential for disruption
to the Company's business.
Employee is encouraged to take the vacation provided for here. The
Company recognizes that it may be in the best interest of the Company for
employee to defer some portion of his vacation. However, in no case can employee
accrue vacation in excess of six weeks without prior written consent of the
Board of Directors.
2.9 INDEMNITY. To the fullest extent permitted by applicable law,
as from time to time in effect, the Company will indemnify Employee and hold
Employee harmless for any acts or decision made in good faith in performing
services for the Company. If Employee is a party to a definitive indemnification
agreement with the Company, then the foregoing sentence will not be applicable.
2.10 SECTION 162(m) OF THE CODE. Notwithstanding anything to the
contrary in this Agreement, any remuneration under this Agreement or any other
agreements to which the Company and Employee are parties in respect of
employment that is not deductible for any taxable year of the Company because of
Section 162(m) of the Code will be deferred until the first day that any excess
remuneration becomes deductible under Section 162(m) or by virtue of its repeal
or amendment. Any such deferred payment will bear interest at the short term
federal rate determined under the Code beginning with the date such payment is
first deferred. Notwithstanding any provision in this Agreement to the contrary,
this Section 2.10 shall survive the termination of this Agreement.
3. TERM AND TERMINATION.
3.1 TERM. Unless terminated as provided in Sub-Section 3.2, the
Term of this Agreement shall be two (2) years, commencing on April 1, 2000 and
terminating on March 31, 2002; provided, however, that the Term of this
Agreement shall automatically renew for a period of two (2) years on March 31st
of each year (such date, the "Renewal Date"), unless the Board of Directors
shall have elected to terminate this Agreement by delivering written notice of
its election to terminate to Employee not fewer than thirty (30) days prior to
the Renewal Date.
3.2 TERMINATION BY COMPANY. The compensation and other benefits
provided to Employee under this Agreement, and the employment of Employee by the
Company, can be terminated prior to the expiration of the Term only as set forth
in this Section 3.2.
3.2.1 DEATH. Employee's employment will terminate upon his
death.
3.2.2 UNAVAILABILITY. Employee's employment will terminate
upon the date as of which Employee is Unavailable, without further action or
notice by the Company.
3.2.3 GOOD CAUSE. Employee's employment will terminate upon
a determination that there is Good Cause for such termination.
3.2.4 WITHOUT CAUSE. The Board has the right to terminate
Employee's employment at any time, with or without Good Cause.
3.3 TERMINATION BY EMPLOYEE. Employee can terminate employment
under this Agreement for Constructive Termination or if Employee has established
Good Reason under the terms of this Agreement.
3.4 NOTICE OF TERMINATION. Any termination by the Company for Good
Cause, or by Employee for Good Reason or Constructive Termination, will be
communicated by Notice of Termination to the other party hereto. A "Notice of
Termination" will (a) indicate the specific termination provision in this
Agreement relied upon; (b) to the extent applicable, set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Employee's employment under such provisions; and (c) if the Date of Termination
is other than the date of receipt of such notice, specify the termination date
(which date shall not be more than fifteen (15) days after the giving of such
notice). The failure by the Employee or the Company to set forth in the Notice
of Termination any fact or circumstance that contributes to a showing of Good
Reason or Good Cause will not waive any right of Employee or the Company
hereunder or preclude Employee or the Company from asserting such fact or
circumstance in enforcing Employee's or the Company's rights hereunder.
3.5 EFFECT OF TERMINATION.
3.5.1 TERMINATION BY COMPANY FOR ANY REASON OTHER THAN FOR
GOOD CAUSE. If, during the Term, Employee's employment is terminated by the
Company for any reason other than for Good Cause, the Company will continue to
pay to Employee the Base Salary and any Earned and Unpaid Performance Bonuses to
which Employee would have been entitled for a period of twenty-four (24) months
from the date of termination. Employee will also be entitled to continue to
participate in any insurance programs that are part of the Benefit Programs, as
though Employee remained an employee, for such period. Such amounts will be paid
or provided to Employee at such times and in such manner as they would have been
paid or provided if no such termination had occurred. If Employee becomes
re-employed with another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, then the medical and
other welfare benefits described herein will be secondary to those provided
under such other plan during such applicable period of eligibility.
3.5.2 TERMINATION BY COMPANY FOR GOOD CAUSE OR TERMINATION
BY EMPLOYEE WITHOUT GOOD REASON. If during the Term, Employee is terminated for
Good Cause, or resigns without Good Reason, then the Company will pay to
Employee the sum of Employee's Base Salary and Earned and Unpaid Performance
Bonuses, to which Employee was entitled through the Date of Termination, and any
other previously earned but unpaid compensation under this Agreement, in each
case to the extent not previously paid (the "Accrued Obligations"). The Accrued
Obligations will be paid in a lump sum in cash within thirty (30) days after the
Date of Termination. All accruals or vesting of benefits will terminate as of
the Date of Termination.
3.5.3 TERMINATION BY EMPLOYEE FOR GOOD REASON OR
CONSTRUCTIVE TERMINATION. If, during the Term, Employee's employment is
terminated by Employee by Constructive Termination or for Good Reason, then the
Company will continue to pay to Employee the Base Salary and any Earned and
Unpaid Performance Bonuses to which Employee would have been entitled for a
period of twenty-four (24) months from the date of termination.. Employee will
also be entitled to continue to participate in any insurance programs that are
part of the Benefit Programs, as though Employee remained an employee, for such
period. Such amounts will be paid or provided to Employee at such times and in
such manner as they would have been paid or provided if no such termination had
occurred. If Employee becomes reemployed with another employer and is eligible
to receive medical or other welfare benefits under another employer provided
plan, then the medical and other welfare benefits described herein will be
secondary to those provided under such other plan during such applicable period
of eligibility.
3.5.4 CONTINGENT BONUS PLAN BENEFITS. Notwithstanding
Section 6.3 of the Contingent Bonus Plan of the Company, if this Agreement is
terminated by the Company under Sections 3.2.1, 3.2.2 or 3.2.4 or by the
Employee under Section 3.3 the Employee's vested benefits, if any, under the
Contingent Bonus Plan of the Company shall not terminate. Such benefits will be
paid to the Employee in accordance with the payment provisions of the Contingent
Bonus Plan of the Company.
3.5.5 WAIVER. If Employee elects to receive the payments,
and accepts the payments, set forth in this Section 3.5, then Employee agrees
that such payments will constitute Employee's sole and exclusive right and
entitlement in connection with Employee's employment by the Company and the
termination of such employment and any and all matters related to or arising in
connection with such employment. Employee's acceptance of such amounts will
release the Company and its affiliated entities (including all directors,
officers, employees and agents) from any claims that Employee might otherwise
have or assert in connection with such matters. In addition, the Company is
entitled to condition such payment on Employee's execution of a release in
customary form. If Employee desires to pursue or enforce any such rights,
entitlements or remedies that would otherwise be waived and released, then
Employee must refuse the payments provided for in Section 3.5 in their entirety.
If Employee accepts such payments, then Employee will be deemed to have agreed
to the foregoing exclusivity of rights and waiver of claims.
3.5.6 Mitigation. Employee shall have no obligation to seek
or accept employment elsewhere after any termination under this Agreement
pursuant to Section 3.5.1 or 3.5.3. Additionally, if Employee accepts employment
elsewhere after any termination under this Agreement pursuant to Section 3.5.3,
then the Company will have no right to offset any amounts paid to Employee from
such other employment during the remaining Term hereof, including any benefits
to which Employee is entitled under the other company's benefit plans and
programs.
3.5.7 EFFECT ON BENEFIT PROGRAMS. The termination of this
Agreement will not affect any vested rights that Employee may have at the Date
of Termination under any Benefit Program.
3.5.8 COOPERATION. Following termination of employment with
the Company for any reason, Employee will cooperate with the Company, as
reasonably requested by the Company, to effect a transition of Employee's
responsibilities and to ensure that the Company is aware of all matters being
handled by Employee. Employee will, upon reasonable notice, furnish such
information and assistance to the Company as may reasonably be required by the
Company in connection with any legal or quasi-legal, proceeding, including any
external or internal investigation, involving the Company or any of its
affiliates or in which any of them is, or may become, a party; provided,
however, that the Company shall reimburse Employee for any reasonable expenses
incurred by him in effecting such cooperation and assistance.
4. OTHER AGREEMENTS
4.1 CONFIDENTIAL INFORMATION; ETC.
4.1.1 CONFIDENTIAL INFORMATION. Employee will hold all
Confidential Information in a fiduciary capacity for the benefit of the Company.
After termination of Employee's employment, Employee will not, without the prior
written consent of the Company or as may otherwise be required by court order,
communicate or divulge any such Confidential Information to anyone other than
the Company and those designated by it.
4.1.2 CLIENTS; EMPLOYEES. During the Term and afterwards
for a period of one (1) year, Employee will not (a) solicit customers, suppliers
or clients of the Company to reduce or discontinue their business with the
Company or to engage in business with any competing entity or (b) attempt to
induce any employee of the Company to leave such employment.
4.1.3 PUBLICATIONS. During the Term and afterwards for a
period of one (1) year, if Employee desires to publish the results of Employee's
work for or experiences with the Company through literature, interviews or
speeches, then Employee will submit requests for such interviews or such
literature or speeches to the Board at least thirty (30) days before any
anticipated dissemination of such information for a determination of whether
such disclosure is in the best interest of the Company. Employee will not
publish, disclose or otherwise disseminate such information without the prior
written approval of the Company.
4.1.4 DOCUMENTS. On the Date of Termination, Employee shall
deliver to the Company and not keep or deliver to anyone else any and all notes,
notebooks, memoranda, documents, regardless of whether such materials are in
hard copy form or on computer disks and, in general, any and all material,
relating to the Company's business. Employee shall not retain any such materials
without prior written approval by the Company.
4.1.5 PROPERTY RIGHTS AND CONFIDENTIALITY ARRANGEMENT.
Employee shall execute a Property Rights and Confidentiality Agreement attached
hereto as Exhibit D.
4.2 WORK PRODUCT.
4.2.1 OWNERSHIP OF WORK PRODUCT. If Employee conceives of,
discovers, invents or creates inventions, improvements, new contributions,
literary property, materials, ideas, and discoveries, whether patentable or
copyrightable or not (all of the foregoing being collectively referred to herein
as "Work Product"), or receives information about business opportunities for the
Company, unless the Company otherwise agrees in writing, then all of the
foregoing will be owned by and belong exclusively to Company and Employee will
have no personal interest therein, if they are either related in any manner to
the business (commercial or experimental) of Company, or are, in the case of
Work Product, conceived or made on Company's time or with the use of Company's
facilities or materials, or, in the case of business opportunities, are
presented to Employee for the possible interest or participation of Company.
Further, unless Company otherwise agrees in writing, Employee will (a) promptly
disclose any such Work Product and business opportunities to Company; (b) assign
to Company, upon request and without additional compensation, the entire rights
to such Work Product and business opportunities; (c) sign all papers necessary
to carry out the foregoing; and (d) give testimony in support of Employee's
inventorship or creation in any appropriate case. Employee will not assert any
rights to any Work Product or business opportunity as having been made or
acquired by Employee prior to the date of this Agreement except for Work Product
or business opportunities, if any, disclosed to and acknowledged by Company in
writing prior to the date thereof.
4.2.2 NONASSIGNABLE SECTION 2870 INVENTIONS. In the event
that Employee's employment is subject to the California Labor Code, except for
Employee's obligations under Section 4.2.3. below, this Agreement does not apply
to Work Product which qualifies as a nonassignable Work Product under Section
2870 of the California Labor Code ("Section 2870"). Employee acknowledges that
Employee has reviewed the Employee-Owned Invention Notification attached hereto
as Exhibit B and agrees that Employee's signature on that Notification
acknowledges his or her receipt thereof.
4.2.3 EMPLOYEE DISCLOSURE OBLIGATION. Employee shall,
during the employment and for six (6) months thereafter, promptly disclose to
the Company-fully and in writing-all Work Product made, conceived or first
reduced to practice by Employee, either alone or jointly with others, including,
if Section 2870 applies to Employee, any Work Product that Employee believes
fully qualifies for protection under Section 2870, together with all evidence,
in writing, necessary to substantiate that belief. In addition, Employee will
disclose to the Company all patent applications filed by Employee or on
Employee's behalf within one (1) year after termination of the employment. The
Company will maintain such information in confidence and will not use for any
purpose or disclose to third parties any such information without Employee's
consent except to the extent necessary to exploit and enforce any proprietary or
intellectual property right the Company may have in such disclosed information.
4.3 INSURANCE. The Company will have the right to take out life,
health, accident, "Key-man" or other insurance covering Employee, in the name of
the Company and at the Company's expense, in any amount deemed appropriate by
the Company. Employee will assist the Company in obtaining such insurance,
including, but not limited to, submitting to any reasonably required medical
examination. The Company will be the owner and beneficiary of any and all
policies for such insurance.
4.4 ASSISTANCE IN LITIGATION. Employee will render assistance,
advice, and counsel to the Company at its request regarding any matter, dispute
or controversy with which the Company may become involved and of which Employee
has or may have reason to have knowledge, information or expertise. Such
services will be without additional compensation if Employee is then employed by
the Company and for reasonable compensation and subject to Employee's reasonable
availability if Employee is not. In any event, the Company will pay all of
Employee's reasonable out-of-pocket expenses in connection therewith.
4.5 WITHHOLDING TAXES. To the extent required by the law in effect
at the time any amounts under this Agreement are paid, the Company will withhold
from such payments the taxes and other amounts required to be withheld by
applicable law.
4.6 MEDICAL EXAMINATION. Employee will submit to and cooperate in,
from time to time, such examinations as the Company reasonably requests to
determine whether Employee is or continues to be able to perform the essential
functions of his/her position.
5. DISPUTE RESOLUTION
5.1 DISPUTE RESOLUTION. Except as necessary for the Company to
specifically enforce its rights under Sections 1.4, 4.1 and 4.2 of the Agreement
or to obtain injunctive relief, the parties agree that any disputes that may
rise in connection with, arising out of or relating to this Agreement, or any
dispute that relates in any way, in whole or in part, to Employee's employment
with the Company, the termination of that employment or any other dispute by and
between the parties or their successors or assigns, will be submitted to binding
arbitration in Los Angeles, California, according to the Employment Dispute
Resolution rules and procedures of the American Arbitration Association and
California Code of Civil Procedure Section 1283.05. Each party will pay one-half
of the cost of the arbitration, excluding the cost of the parties' respective
legal counsel. This arbitration obligation extends to any and all claims that
may arise by and between the parties or their successors, assigns or affiliates,
and expressly extends to, without limitation, claims or causes of action for
wrongful termination, impairment of ability to compete in the open labor market,
breach of an express or implied contract, breach of the covenant of good faith
and fair dealing, breach of fiduciary duty, fraud, misrepresentation,
defamation, slander, infliction of emotional distress, disability, loss of
future earnings, and claims under any State Constitution, the United States
Constitution, and applicable state and federal fair employment laws, federal
equal employment opportunity laws, and federal and state labor statutes and
regulations, including, but not limited to, the Civil Rights Act of 1964, as
amended, the Fair Labor Standards Act, as amended, the Americans With
Disabilities Act of 1990, the Rehabilitation Act of 1973, as amended, the
Employee Retirement Income Security Act of 1974, as amended, and the Age
Discrimination in Employment Act of 1967.
5.2 RIGHTS AND REMEDIES UPON BREACH. If Employee breaches, or
threatens to commit a breach of, any of the provision of Sections 1.4, , 4.1 and
4.2 of the Agreement (the "Restrictive Covenants"), then the Company and its
subsidiaries, affiliates, successors or assigns shall have the following rights
and remedies, each of which shall be independent of the others and severally
enforceable, and each of which shall be in addition to, and not in lieu of, any
other rights or remedies available to the Company or its subsidiaries,
affiliates, successors or assigns at law or in equity:
5.2.1 SPECIFIC Performance. The right and remedy to have
the Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
Restrictive Covenants would cause irreparable injury to the Company or its
subsidiaries, affiliates, successors or assigns and that money damages would not
provide an adequate remedy to the Company or its subsidiaries, affiliates,
successors or assigns;
5.2.2 ACCOUNTING. The right and remedy to require Employee
to account for and pay over to the Company or its subsidiaries, affiliates,
successors or assigns, as the case may be, all compensation, profits, monies,
accruals, increments or other benefits derived or received by Employee as a
result of any transaction or activity constituting a breach of the Restrictive
Covenants;
5.2.3 SEVERABILITY OF COVENANTS. Employee acknowledges and
agrees that the Restrictive Covenants are reasonable and valid in geographic and
temporal scope and in all other 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;
5.2.4 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, then 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;
5.2.5 ENFORCEABILITY IN JURISDICTION. Employee intends to
and hereby confers jurisdiction to enforce the Restrictive Covenants upon the
courts of any jurisdiction within the geographic scope of such covenants. If the
courts of any one or more of such jurisdictions hold the Restrictive Covenants
unenforceable by reason of the breadth of such scope or otherwise, then it is
the intention of Employee that such determination not bar or in any way affect
the Company's or its subsidiaries', affiliates', successors' or assigns' right
to the relief provided above in the courts of any other jurisdiction within the
geographic scope of such covenants, as to breaches of such covenants in such
other respective jurisdictions, such covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
5.3 PREVAILING PARTY. The prevailing party in any action relating
to this Agreement will be entitled to recover, in addition to other appropriate
relief, reasonable legal fees, costs and expenses incurred in such action.
5.4 SUCCESSOR. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
6. GENERAL PROVISIONS
6.1 ASSIGNMENT. This Agreement is a personal contract, and the
rights, interests and obligations of Employee under this Agreement may not be
sold, transferred, assigned, pledged or hypothecated by Employee, except that
this Agreement may be assigned by the Company to any corporation or other
business entity that succeeds to all or substantially all of the business of the
Company or any division or sub-unit thereof through merger, consolidation,
corporate reorganization or by acquisition of all of substantially all of the
assets of the Company and that assumes the Company's obligations under this
Agreement. The term and conditions of this Agreement will inure to the benefit
of and be binding upon any successor to the business of the Company and
Employee's heirs and legal representatives.
6.2 AMENDMENTS; WAIVERS. Amendments, waivers, demands, consents
and approvals under this Agreement must be in writing and designated as such. No
failure or delay in exercising any right will be deemed a waiver of such right.
6.3 INTEGRATION. This Agreement is the entire agreement between
the parties pertaining to its subject matter, and supersedes all prior
agreements and understandings of the parties in connection with such subject
matter.
6.4 INTERPRETATION; GOVERNING LAW. This Agreement is to be
construed as a whole and in accordance with its fair meaning. This Agreement is
to be interpreted in accordance with the laws of the State of New Jersey.
6.5 HEADINGS. Headings of Sections and subsections are for
convenience only and are not a part of this Agreement.
6.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which constitute one agreement.
6.7 Successors and Assigns. This Agreement is binding upon and
inures to the benefit of each party and such party's respective heirs, personal
representatives, successors and assigns. Nothing in this Agreement, express or
implied, is intended to confer any rights or remedies upon any other person.
6.8 EXPENSES. If the Employee seeks legal representation in
connection with this Agreement, the Company shall reimburse the Employee for
legal expenses in an amount not to exceed $1,500.00.
6.9 REPRESENTATION BY COUNSEL; INTERPRETATION. The Employee
acknowledges that he/she has had the opportunity to be represented by counsel in
connection with this Agreement. Any rule of law, including, but not limited to,
Section 1654 of the California Civil Code, or any legal decision that would
require interpretation of any claimed ambiguities in this Agreement against the
party that drafted it, has no application and is expressly waived.
6.10 TIME IS OF THE ESSENCE. Time is of the essence in the
performance of each and every term, provision and covenant in this Agreement.
6.11 NOTICES. Any notice to be given hereunder must be in writing
and delivered to the following addresses (or to another address as either shall
designate in writing). Such notice will be effective (a) if given by telecopy or
if confirmed by returned telecopy, (b) one Business Day after delivery through a
generally recognized and reputable overnight courier or messenger for next day
deliver, (c) if given by mail or any other means, when actually delivered to the
address specified.
If to the Company: HCC Industries, Inc.
0000 Xxxxxx Xxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
If to Employee: At Employee's most recent address on the
books and records of the Company.
The parties have signed this Agreement effective as of the date on page
three.
HCC INDUSTRIES, INC.
By:
-----------------------------
Its:
----------------------------
EMPLOYEE:
--------------------------------
Xxxxxxx Ferraid
EXHIBIT A
DEFINED TERMS
"EARNED AND UNPAID PERFORMANCE BONUSES" means with respect to any date,
Performance Bonuses which have been earned by Employee as of the end of the
Company's fiscal year preceding such date but not paid to Employee.
"AGREEMENT" means this Employment Agreement, as amended from time to
time.
"BASE SALARY" means the annual amount of $350,000.00. Employee's Base
Salary shall be reviewed by the Board of Directors annually and may be increased
from time to time at the sole discretion of the Board of Directors. In no event
will Base Salary be reduced.
"BENEFITS PROGRAM" means programs such as group health, dental, life
and disability, profit sharing, pension and similar programs (but excluding
bonus plans) made generally available to the senior executives of the Company.
"BOARD" means the Company's Board of Directors as composed at the time,
not including Employee.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day
national banks in the State of California are authorized or required by law to
close.
"CHANGE OF CONTROL" means the occurrence of any of the following
events:
(a) the sale, lease, transfer or other disposition of all
or substantially all of the assets of the Company or its subsidiaries (taken as
a whole) to any Person or related group of Persons other than the Stockholders;
and/or
(b) the merger or consolidation of the Company with or
into another corporation, or the merger of another corporation into the Company,
with the effect that Persons other than the Stockholders and their Permitted
Transferees (as such terms are defined in the Stockholders Agreement) or any
"group" (as defined in the rules promulgated under Section 13(d) of the
Securities Exchange Act of 1934, as amended) of which any Stockholder or
Permitted Transferees is a member) hold more than 50% of the total voting power
on a fully diluted basis entitled to vote in the election of directors, managers
or trustees of the surviving corporation of such merger or the corporation
resulting from such consolidation; and/or
(c) any other event which results in a Person or "group"
other than the Stockholders (and their Permitted Transferees or any "group" of
which any Stockholder or their Permitted Transferees is a member) holding,
directly or indirectly, in the aggregate more than 50% of common stock to the
issuance of all shares of common stock issuable (i) upon conversion of all
convertible securities outstanding at such time and all convertible securities
issuable upon the exercise of any warrants, options and other rights outstanding
at such time, and (ii) upon exercise of all other warrants, options and other
rights outstanding at such time; and/or
(d) when, during any period of twenty-four consecutive
months after the Effective Date, the individuals who, at the beginning of such
period, constitute the Board of Directors of the Company (the "Incumbent
Directors") cease for any reason other than death to constitute at least a
majority thereof, provided that a director who was not a director at the
beginning of such twenty-four month period shall be deemed to have satisfied
such twenty-four month requirement (and be an Incumbent Director) if such
director was elected by, or on the recommendation of or with the approval of, at
least two-thirds of the directors who then qualified as Incumbent Directors.
"CHANGE OF STATUS" means any change in Employee's title, duties and
responsibilities or place of employment.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMON STOCK" means the Company's common stock, $0.10 par value.
"COMPANY" means HCC Industries, Inc., a Delaware corporation, together
with its subsidiaries.
"CONFIDENTIAL INFORMATION" means information not known by the trade
generally or not reasonably available to a knowledgeable person in the trade,
even though such information may have been disclosed to one or more third
parties pursuant to consulting agreements, joint research agreements, or other
agreements entered into by the Company and includes, without limitation, trade
secrets, designs, plans, formulas, customer lists, lists of suppliers, and all
other confidential and proprietary information.
"CONSTRUCTIVE TERMINATION" means that if there is a Change of Control
in the Company, or a Change of Status of the Employee, Employee may terminate
his employment with the same effect as if he were terminating for Good Reason.
However, in event of a Change of Control, if employee is asked to remain as a
division or subsidiary president, then there shall not be deemed to be a
"constructive termination".
"CONTINGENT BONUS PLAN OF THE COMPANY" means the contingent bonus plan
that went into effect upon the Recapitalization with Windward Capital February
14, 1997.
"DATE OF TERMINATION" means:
(a) the end of the Term, if Employee's employment has not
terminated before then;
(b) if Employee's employment is terminated by the Company
for Good Cause, or by Employee for Good Reason, then
the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be;
(c) if Employee's employment is terminated by the Company
other than for Good Cause, then 180 days after the
date on which the Company notifies Employee of such
termination; and
(d) if Employee's employment is terminated by reason of
death or Unavailability, then the date of death of
Employee or the effective date, of the
Unavailability, as the case may be.
"DISABILITY" means the Employee's inability to substantially render to
the Company the services required under this Agreement for more than 60 days out
of any consecutive 120 day period because of mental or physical illness or
incapacity, as determined in good faith by the Board.
"EBITDA" means the combined earnings before interest, federal and state
income taxes, and depreciation and amortization of the Company and its
subsidiaries determined in good faith by the Company in accordance with
generally accepted accounting principles.
"EFFECTIVE DATE" means April 1, 2000.
"GOOD CAUSE" means a finding by the Board in good faith that Employee
has
(a) been engaged in an act or acts of dishonesty that
were intended to and did result directly or
indirectly in gain or personal enrichment to Employee
at the expense of the Company;
(b) failed to substantially perform Employee's duties
hereunder (other than failure resulting from
Employee's Unavailability due to Disability)
persisting for a reasonable period following the
delivery to Employee of written notice specifying the
details of any alleged failure to perform, which
failure has, at the sole but reasonable discretion of
the Company, resulted in injury and damage to the
Company;
(c) breached this Agreement in any material respect; or
(d) been convicted of any felony offense or misdemeanor
offense involving fraud, theft or dishonesty at any
time.
An event specified in (b), (c) or (d) above will not constitute "GOOD CAUSE"
until the Board provides Employee with written notice of such event setting
forth in reasonable detail the specifics of such event and such event has not
been cured to the reasonable satisfaction of the Board, if such act or event can
be cured, within thirty days of such notice (except upon the subsequent
occurrence of a substantially similar event, in which case such second event
will constitute "Good Cause" without any notice or cure period).
"GOOD REASON" means, other than an event also constituting Good Cause,
the Company's material breach of this Agreement.
"INCLUDING" OR "INCLUDES," when following any general provision,
sentence, clause, statement, term or matter, will be deemed to be followed by,
but not limited to, "and," but is not limited to," respectively.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement, dated
February 14, 1997 among the Company, Windward, Windard/Park, Windward/Merban,
Windward/Merchant, and the Management Stockholders as defined therein.
"TERM" means the period from the Effective Date through 180 days after
the Notice of Termination date in which the Employee is terminated for any
reason other than Good Cause, Death, Unavailability or voluntary termination.
"UNAVAILABILITY" means Employee being unable to fully perform
Employee's duties by reason of illness, Disability or other incapacity, or by
reason of any statute, law, ordinance, regulation, order, judgment, or decree,
except for an instance that would constitute Good Cause.
EXHIBIT B
EMPLOYEE-OWNED INVENTION NOTIFICATION
This Employee-Owned Invention Notification ("Notification") is to inform
Employee in accordance with Section 2872 of the California Labor Code that the
Agreement between Employee and the Company does not require Employee to assign
or offer to assign to the Company any invention that Employee developed or
develops entirely on his or her own time without using the Company's equipment,
supplies, facilities or trade secret information except for those inventions
that either:
1. Relate at the time of conception or reduction to practice of
the invention to the Company's business, or actual or
demonstrably anticipated research or development of the
Company; or
2. Result from any work performed by Employee for the Company.
To the extent a provision in the Agreement purports to require Employee to
assign an invention otherwise excluded from the preceding paragraph, the
provision is against the public policy of the State of California and is
unenforceable.
This Notification does not apply to any patent or invention covered by a
contract between the Company and the United States or any of its agencies
requiring full title to such patent or invention to be in the United States.
Employee acknowledges receipt of a copy of this Notification.
By:
---------------------------
Printed Name of Employee
Date:
-------------------------
Witnessed by:
------------------------------
Printed Name of Representative
Date:
---------------------
EXHIBIT C
CHART DEPICTING HCC INDUSTRIES FY2001 EXECUTIVE BONUS PLAN (% OF BASE
PAY / EBITDA AS A % OF TARGET)
EXHIBIT D
PROPERTY RIGHTS AND CONFIDENTIALITY AGREEMENT
In consideration of my employment and the compensation paid me by HCC Industries
Inc., or any of its subsidiary companies (hereinafter collectively referred to
as the "Company"), I hereby agree as follows:
1. Confidentiality. I agree that for and during the entire term of my
employment any of the following shall be considered and kept as the private and
privileged records of the Company and will not be divulged to any person, firm,
or institution except with the prior written authorization fo the President of
HCC:
a) Sales and marketing: customer lists and files, price lists,
forecasts, reports, data, research, orders, RFQ'S, and related
information;
b) Financial: financial reports, budgets, forecasts, operating
analyses;
c) Other: engineering processes and designs, drawings, trade
secrets, purchasing data, quality levels and yields, and
personnel files.
Further, upon termination of my employment for any reason, I agree that I will
continue to treat as private and privileged such information and will not
release any such information to any person, firm or institution without the
prior written authorization of the President of HCC, and the Company shall be
entitled to an injunction by any competent court to enjoin and restrain the
authorized disclosure of such information.
2. Ownership of Employee's Inventions. All inventions, processes,
procedures, systems, discoveries, designs, glass formulae, trade secrets and
improvements conceived by me, alone or with others, during the term of my
employment, that are within the scope of the Company's business operations or
that relate to any of the Company's work or projects, are the exclusive property
of the Company. I agree to assist the Company, at its expense, to obtain patents
on any such patentable ideas, inventions, and other developments, and I agree to
execute all documents necessary to obtain such patents in the name of the
Company.
3. Return of Property. Upon termination of my employment, regardless of
how effected, I shall immediately turn over to the Company all of the Company's
property, including all items used by me in rendering services to the Company
that may be in my possession or under my control, including all notes,
memoranda, notebooks, drawings, records, reports, files and other documents (and
all copies or reproductions of such material). I acknowledge that this material
is the sole property of the Company.
4. Miscellaneous.
a) In the event I seek employment with any person, firm or other
enterprise competitive with the Company, I will disclose this
Agreement to them.
b) I acknowledge that this Agreement is not in any way intended to
create an Employment Contract, Either expressed or implied.
c) This Agreement is governed by and will be construed under the laws
of the State of California.
EMPLOYEE:
Dated:
------------------- ------------------------------------------
Employee's Signature
------------------------------------------
Employee's Name
HCC INDUSTRIES INC.:
Dated: By:
------------------- ---------------------------------
