Exhibit 10.3
[LETTERHEAD OF OPTICAL CABLE CORPORATION]
OPTICAL CABLE CORPORATION
EMPLOYMENT AGREEMENT
This agreement made effective September 1, 2001 by and between Optical Cable
Corporation, having a place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx (hereinafter referred to as "OCC"), and Xxxx X. Xxxxxx, Xx.,
(hereinafter referred to as "Xxxxxx").
WHEREAS, OCC desires to employ Xxxxxx and Xxxxxx desires to accept such
employment upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, OCC employs Xxxxxx and Xxxxxx accepts employment upon the following
terms and conditions:
1. EMPLOYMENT AND DUTIES: Xxxxxx is employed as Senior VP and Chief Financial
Officer of OCC. Xxxxxx hereby agrees to abide by the terms and conditions
of this Agreement. Xxxxxx shall report directly to the President and CEO.
The authority, duties and responsibilities of Xxxxxx shall include those
duties as may be assigned to Xxxxxx by the President and CEO from time to
time. While employed hereunder, Xxxxxx shall devote reasonable time and
attention during normal business hours to the affairs of OCC and use his
best efforts to perform faithfully and efficiently his duties and
responsibilities.
2. TERM AND RENEWAL: The term of this Agreement shall begin on September 1,
2001 and shall terminate on August 31, 2003. At end of the initial term
(and each renewal term, if any), this Agreement will automatically renew
for an additional 2-year term unless one of the parties provides the other
party with written notice indicating the intention not to renew this
Agreement at least 6 months prior to the end of such term.
3. COMPENSATION: For all services rendered by Xxxxxx, OCC shall pay Xxxxxx
$120,000 annualsalary, payable in equal monthly installments on the first
business day of each month during which Xxxxxx is employed, commencing on
October 1, 2001.
Plus, a monthly bonus equal to .0009 of the monthly sales which are
adjusted for point of sale and payable on the 15/th/ of the following
month.
Plus, a lump sum year end bonus equal to the sum of the twelve fiscal year
monthly bonuses, payable on or around January 15/th/ of the following year.
4. STOCK OPTIONS: The terms and conditions of stock options granted to Xxxxxx
are governed by the documents evidencing such options and are not intended
to be addressed in this Agreement.
5. TERMINATION: This Agreement shall terminate automatically upon the earliest
of any of the following events and no act, failure to act (except as
otherwise provided in this Agreement), oral statement or representation of
OCC or any of its directors, officers, agents or employees, whether
contained in any employee handbook or otherwise, will be deemed a waiver by
OCC of its rights hereunder unless expressly stated to the contrary:
a. expiration of the term (including renewals, if any);
b. OCC's termination of Xxxxxx without Cause (as defined below), provided
that OCC has given Xxxxxx 30-days prior written notice;
c. resignation by Xxxxxx other than for Good Reason (as defined below),
provided that Xxxxxx has given OCC 30-days prior written notice;
d. death of Xxxxxx (effective on the last day of the month in which death
occurs);
e. the inability of Xxxxxx to perform substantially all of his duties
hereunder by reason of illness, physical, mental or emotional
disability or other incapacity, which inability shall continue for
more than four successive months or six months in the aggregate during
any period of 12 consecutive months; provided that OCC has given
Xxxxxx written notice at or before the end of such period Xxxxxx does
not return to work on a full-time basis; or
f. OCC's termination of Xxxxxx for Cause, provided that OCC has given
Xxxxxx written notice. For purposes of this Agreement, "Cause" shall
mean:
x. Xxxxxx'x material breach of this Agreement, which breach is not
cured within 30 days of receipt by Xxxxxx of notice from OCC
specifying the breach; orii. Xxxxxx'x gross negligence in the
performance of his material duties hereunder, intentional
nonperformance or misperformance of such duties, or refusal to
abide by or comply with the directives of the Board, his
superior officers, or the OCC's policies and procedures
(including nondiscrimination and sexual harassment), which
actions continue for a period of at least 30 days after receipt
by Xxxxxx of written notice of the need to cure or cease; or
ii. Xxxxxx'x willful dishonesty, fraud, or misconduct with respect
to the business or affairs of OCC, that in the reasonable
judgment of the Board of Directors materially and adversely
affects the operations or reputation of OCC; or
iii. Xxxxxx'x conviction of a felony or other crime involving moral
turpitude (whether or not in connection with his employment); or
iv. failure of Xxxxxx to pass any drug or alcohol test administered
in accordance with OCC's substance abuse policies.
g. resignation by Xxxxxx for Good Reason with 3D-days prior written
notice. For purposes of this Agreement, "Good Reason" shall mean:
i. a change in reporting relationships such that Xxxxxx no longer
directly reports to the President and CEO of OCC; or
ii. a material diminution in the nature or scope of Xxxxxx'x xxxxxx,
duties or responsibilities to a level below that which would
ordinarily be assigned to an executive officer serving as Senior
Vice President and Chief Financial Officer, without Xxxxxx'x
prior written consent; or
iii. failure by OCC to provide Xxxxxx with the compensation and
benefits in accordance with the terms of this Agreement; or
iv. relocation of OCC's principal executive offices to a location
outside a thirty (30) mile radius of Roanoke, VA; or
v. willful dishonesty, fraud, or misconduct with respect to the
business or affairs of OCC by the Board of Directors or Xxxxxx'x
superior officers, that in the reasonable judgment of Xxxxxx
materially and adversely affect the operations or reputation of
OCC.
6. EFFECT OF TERMINATION: Except as expressly set forth below, OCC shall have
no further obligations to Xxxxxx under this Agreement after the termination
of his employment hereunder:
a. Termination For Cause. If Xxxxxx is terminated for Cause by OCC, as
defined in Section 5(f) above, OCC shall pay to Xxxxxx his salary and
pro rata bonuses earned through the date of termination.
b. Resignation by Xxxxxx without Good Reason. If this Agreement is
terminated by the resignation of Xxxxxx without Good Reason, OCC shall
pay to Xxxxxx his salary and pro rata bonuses earned through the date
of termination.
c. Termination without Cause, upon Death or Disability, or Resignation
for Good Reason. If this Agreement is terminated for any of the
reasons stated in Sections 5(b), (d),(e) or (g), OCC shall pay to
Xxxxxx his salary and pro rata bonuses earned through the date
of termination, as well as a severance payment equal to six (6) months
salary (including bonuses), less applicable withholdings, payable in
the same manner as during Wildin's employment.
7. RELOCATION: Upon accepting employment with OCC, Xxxxxx will be paid a one-
time relocation bonus of $15,000.00.
8. PATENT RIGHTS: Xxxxxx'x interest in any and all inventions or improvements
made or conceived by him, or which he may make or conceive at any time
after the commencement of and until the termination of his employment with
OCC, either individually or jointly with others, which relate to the
business conducted by or planned to be conducted by OCC as reasonably
determined by OCC, shall be the exclusive property of OCC, its successors,
assignees or nominees. He will make full and prompt disclosure in writing
to an officer or official of OCC, or to anyone designated for that purpose
by OCC, of all inventions or improvements made or conceived by him during
the term of his employment. At the request and expense of OCC, and without
further compensation to him, Xxxxxx will for all inventions or improvements
which may be patentable, do all lawful acts and execute and acknowledge any
and all letters and/or patents in the United States of America and foreign
countries for any of such inventions and improvements, and for vesting in
OCC the entire right, title and interest thereto. As used in this
Agreement, "inventions or improvements" means discoveries, concepts, and
ideas, whether patentable or not, relating to any present or prospective
activities of OCC, including, but not limited to, devices, processes,
methods, formulae, techniques, and any improvements to the foregoing.
9. CONFIDENTIALLY; DISCLOSURE OF INFORMATION: Since the work for which Xxxxxx
is employed and upon which he shall be engaged, will include trade secrets
and confidential information of OCC or its customers, Xxxxxx receive such
trade secrets and confidential information in confidence and shall not,
except as required in the conduct of OCC's business, publish or disclose,
or make use of or authorize anyone else to publish, disclose, or make use
of any such secrets or information unless and until such secrets or
information shall have ceased to be secret or confidential as evidenced by
public knowledge. This prohibition as to publication and disclosures shall
not restrict him in the exercise of his technical skill, provided that the
exercise of such skill does not involve the disclosure to others not
authorized to receive trade secret or confidential information of OCC or
its customers. As used in this Agreement, "trade secrets and confidential
information" includes any formula, pattern device or compilation of
information used in the business of OCC or its customers for which OCC
derives independent economic value by
affording OCC opportunity to obtain advantage over competitors who do not
know or use such information; the term includes, but is not limited to,
devices and processes, whether patentable or not, compilations of
information such as customer lists, business and marketing plans, and
pricing information where certain of the information involved is generally
known or available but where the compilation, organization or use of the
information is not generally known and is of significance to the business
of OCC or its customers. The provisions of this paragraph (nine) 9 shall
apply throughout the period of Xxxxxx'x employment with OCC, and
thereafter.
10. NON-COMPETE: Xxxxxx covenants and agrees that during the term of his
employment with OCC (as employee, consultant or otherwise) and for the
twelve (12) consecutive months immediately following termination of that
employment by either party for any reason he will not directly or
indirectly own or have an ownership interest in, render services similar to
those he is providing hereunder to, or work in the same or similar capacity
in which he is employed hereunder for any business which competes with OCC
or is engaged in the same or similar business conducted by OCC during the
period of Xxxxxx'x employment with OCC; nor will he call on, solicit or
deal with any customers or prospective customer of OCC learned about or
developed during Xxxxxx'x employment with OCC for twelve (12) consecutive
months immediately following termination of that employment by either party
for any reason. This Agreement shall apply to Xxxxxx as an individual for
his own account, as a partner or joint venturer, as an employee, agent
salesman or consultant for any person or entity, as an officer, director or
shareholder.
11. RETURN OF OCC PROPERTY: Immediately upon the termination of his employment
with OCC, Xxxxxx will turn over to OCC all keys, passwords, computers,
notes, memoranda, notebooks,drawings, records, documents, and all computer
program source listings, object files, and executable images or other
information or materials obtained from OCC or developed or modified by him
as part of his work for OCC which are in his possession or under his
control, whether prepared by him or others, relating to any work done for
OCC or relating in any way to the business of OCC or its customers, it
being acknowledged that all such items are the sole property of OCC.
12. BENEFITS: Xxxxxx shall be entitled to such vacation and benefits of OCC as
OCC may from time to time establish for employees of similar positions,
responsibilities and seniority; provided that Xxxxxx will receive at least
3 weeks vacation per year.
13. BINDING ON OTHER PARTIES: This Agreement shall be binding upon and inure to
the benefit of Xxxxxx, his heirs, executors and administrators, and shall
be binding upon and inure to the benefit of OCC and its successors and
assigns.
14. ENFORCEMENT AND REMEDIES: This Agreement shall be enforced and construed in
accordance with the laws of the Commonwealth of Virginia.
Each party acknowledges that in the event of a breach or threatened breach
of the confidentiality or non-compete provisions set out in paragraphs 9
and 10 of the Agreement, damages at law will be inadequate and injunctive
relief is appropriate in addition to whatever damages may be recoverable.
Xxxxxx agrees to pay the costs, including attorneys fees incurred by OCC in
enforcing the provisions of paragraphs 9 and 10.
Each and all of the several rights and remedies contained in or arising by
reason of this Agreement shall be construed as cumulative and no one of
them shall be exclusive of any other or of any right or priority allowed by
law or equity.
15. NOTICES: Any notice required or desired to be given under this Agreement
shall be deemed given if in writing sent by U.S. Mail to his last known
residence in the case of Xxxxxx or to its principal office in the case of
OCC.
16. SEVERABILITY: It is understood and agreed that, should any portion of any
clause or paragraph of this Agreement be deemed too broad to permit
enforcement to its full extent, then such restriction shall be enforced to
the maximum extent permitted by law, and the parties hereby consent and
agree that such scope may be modified accordingly in a proceeding brought
to enforce such restriction. Further, it is agreed that, should any
provision in the Agreement be entirely unenforceable, the remaining
provisions of this Agreement shall not be affected.
17. ASSIGNMENT: Xxxxxx may not transfer, pledge, encumber, assign, anticipate,
or alienate all or any part of this Agreement.
18. PRIOR AGREEMENT; MODIFICATION: No modifications or waiver of this
Agreement, or of any provision thereof, shall be valid or binding, unless
in writing and executed by both parties hereto. No waiver by either party
of any breach of any term or provision of this Agreement shall be construed
as a waiver of any succeeding breach of the same or any other term or
provision.
WHEREOF, the parties have executed this Agreement as of the day and year first
written above.
/s/ Xxxx X. Xxxxxx, Xx
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Xxxx X. Xxxxxx, Xx.
Optical Cable Corporation
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
President and Chief Executive Officer
