Exhibit 10.30
EMPLOYMENT AND NON-COMPETITION AGREEMENT
AGREEMENT, dated as of January 18, 2002 by and between Itronix
Corporation or an affiliate ("Company"), and Xxxxxx Xxxxxx ("Employee").
WHEREAS, Employee has a desire to join the Company in a managerial
position; and
WHEREAS, Company and Employee wish to set forth the terms of the
Employee's employment by Company;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration including but not limited
to options to purchase common stock of the Company being granted to Employee in
conjunction with this Agreement, the parties hereto agree as follows:
1. Employment. Company hereby employs Employee, and Employee agrees
to serve as an employee of Company, on the terms and conditions set forth in
this Agreement.
2. Period of Employment. The "Period of Employment" shall be the
period commencing on January 18, 2002 and ending on January 18, 2003; provided,
however, that commencing on January 18, 2003 and on the 18th day of January of
each year thereafter, the term of the Agreement shall automatically be extended
for one additional year unless at least 30 calendar days prior to any such date,
Company or Employee shall have given notice in accordance with Section 11 hereof
that such extension shall not occur.
3. Duties During the Period of Employment. During the Period of
Employment, Employee shall serve as President and CEO of the Company, or such
other position as shall be assigned to Employee by the Board of Directors, and
shall have such duties and responsibilities as are assigned to Employee by the
Board of Directors of the Company commensurate with such position. Employee
shall devote Employee's full business time, attention and efforts to the affairs
of the Company during the Period of Employment, provided, however, that Employee
may engage in other activities, such as activities involving professional,
charitable, educational, religious and similar types of organizations, speaking
engagements, membership on the board of directors of such other organizations as
the Company may from time to time agree to, and similar types of activities, to
the extent that such other activities, either individually or collectively, do
not, in the sole and reasonable discretion of the Company, inhibit or prohibit
the performance of Employee's duties under this Agreement, or conflict in any
material way with the business of the Company and its affiliates.
4. Current Cash Compensation. As compensation for Employee's
services hereunder, during the Period of Employment Employee will be entitled to
receive an annual base salary at the rate of $225,000. Employee shall also be
entitled to participate in Company's annual bonus plan, under which he or she
shall have an annual target bonus opportunity of 100% of Employee's annual rate
of base salary as in effect at the beginning of the fiscal year for which the
bonus is payable. During the first year of employment Employee shall receive a
bonus of no less than $150,000. The Company shall review Employee's annual rate
of base salary and target annual bonus opportunity at least annually and, in
light of such review, may, in the discretion of the Board of Directors of the
Company, (which Board may, for these purposes and all other purposes of this
Agreement, delegate to officers of the Company its duties and discretion
hereunder) increase either or both such annual base salary or target
opportunity. Any such review of Employee's annual compensation shall take into
account any change in Employee's responsibilities, increases in the cost of
living, performance by the Employee, and other factors that the Board of
Directors deems pertinent.
5. Other Employee Benefits.
(a) Vacation and Sick Leave. Employee shall be entitled to
reasonable paid annual vacation periods and sick leave in accordance with
Company's applicable vacation and sick leave policies prevailing from time to
time.
(b) Regular Reimbursed Business Expenses. Company shall reimburse
Employee for all expenses and disbursements reasonably incurred by Employee in
the performance of Employee's duties during the Period of Employment, and
provide such other facilities or services as Company and Employee may, from time
to time, agree are appropriate, all in accordance with Company's established
policies.
(c) Employee Benefit Plans. In addition to the cash compensation
provided for in Section 4 hereof, Employee, subject to meeting eligibility
provisions and to the provisions of this Agreement, shall be entitled to
participate in Company's employee benefit plans, as presently in effect or as
they may be modified, altered, curtailed or supplemented by Company from time to
time.
(d) Executive Compensation Plans. In addition to the cash
compensation provided for in Section 4 hereof and the employee benefits provided
for in paragraph (c) of this Section, Employee, subject to meeting eligibility
provisions and to the provisions of this Agreement, shall be entitled to
participate in Company's executive compensation plans, as currently in effect or
as they may be modified, altered, curtailed or supplemented by Company from time
to time.
6. Termination.
(a) Termination by Company Without Cause. If Company should terminate the Period
of Employment without Cause as defined below, in addition to any other
compensation and benefits payable as provided for hereunder, Company shall pay
to Employee on the termination date a lump sum amount equal to (i) all accrued
but unpaid base salary as of the termination date, plus (ii) the pro rata amount
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of Employee's annual bonus (if any) for the portion of the fiscal year preceding
the termination date that would have been payable to Employee if Employee had
been employed for the entire fiscal year, determined on the basis of actual
performance achieved by the Company through the termination date and the
performance objectives established for such fiscal year, pro rated to reflect
the portion of the fiscal year preceding the termination date, plus (iii) a
payment of Employee's base pay, at the annual rate in effect on the termination
date for a period of months equal to 1.5 times the number of years of service
with the Company and its affiliates completed by Employee prior to Employee's
termination; provided that the lump sum payment subject to this subsection (iii)
shall not be less than twelve (12) months' base pay and shall not be more than
eighteen (18) months' base pay, provided, however, that such payments enumerated
in subsections (ii) through (iii) above are conditioned on Employee's execution
of Company's severance and general release agreement in a form acceptable to
Company and continued compliance with the other provisions of this Agreement.
"Cause" shall mean the willful and continued failure by Employee to
use reasonable effort to substantially perform Employee's duties with Company
(other than any such failure resulting from incapacity due to physical or mental
illness) after a demand for substantial performance is delivered to Employee by
Company which specifically identifies the manner in which Company believes
Employee has not substantially performed his duties; conviction of, or plea of
nolo contendere to, a felony; habitual abuse of drugs or alcohol in the
discretion of the Board of Directors; fraud, material dishonesty or gross
misconduct in connection with the business of Company.
(b) Termination by Company for Cause. If Company shall terminate
the Period of Employment for Cause, Employee will be entitled only to be paid
that portion of the base annual salary due and not yet paid to the Employee for
the month in which the termination is made.
(c) Voluntary Termination by Employee. Employee shall have the
right, upon 90 days' prior written notice given to Company, to terminate the
Period of Employment. If Employee should terminate the Period of Employment,
Employee will be entitled only to be paid that portion of the base annual salary
otherwise payable to Employee under paragraph (a) (i) of Section 6 through the
end of the month in which the Period of Employment is terminated. No additional
amounts shall be payable to Employee (except as and to the extent otherwise
required at law or under the express terms and conditions of any employee
benefit plan in which Employee participates).
7. Confidential Information. Employee agrees to keep secret and
retain in the strictest confidence all confidential matters which relate to
Company or any affiliate of Company, including, without limitation, customer
lists, client lists, trade secrets, pricing policies and other business affairs
of Company and any affiliate of Company learned by Employee from Company or any
such affiliate or otherwise before or after the date of this Agreement, and not
to disclose any such confidential matter to anyone outside Company or any of its
affiliates, whether during or after Employee's period of service with Company,
except as may be required by a court of law, by any governmental agency having
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supervisory authority over the business of Company or by any administrative or
legislative body (including a committee thereof) with apparent jurisdiction to
order him or her to divulge, disclose or make accessible such information.
Employee agrees to give Company advance written notice of any disclosure
pursuant to the preceding sentence and to cooperate with any efforts by Company
to limit the extent of such disclosure. Upon request by Company, Employee agrees
to deliver promptly to Company upon termination of Employee's services for
Company, or at any time thereafter as Company may request, all Company or
affiliate memoranda, notes, records, reports, manuals, drawings, designs,
computer files in any media and other documents (and all copies thereof)
relating to Company's or any affiliate's business and all property of Company or
any affiliate associated therewith, which Employee may then possess or have
under Employee's control, other than personal notes, diaries, rolodexes and
correspondence.
8. Non-competition and Non-solicitation.
(a) Without the consent in writing of the Board of Directors of the
Company, during the period of Employee's employment with the Company and upon
termination of Employee's employment for any reason whatsoever, Employee will
not for a period of a minimum of twelve (12) months thereafter and a maximum of
eighteen (18) months thereafter (the restrictive period being commensurate with
the number of months of severance being paid to Employee pursuant to Section 6
(a) (iii)) (i) engage in, or carry on, directly or indirectly, either for
himself or as a member of a partnership or as a stockholder, investor, officer
or director of a corporation or as an employee, agent, associate, adviser or
consultant of any person, partnership or corporation, any business in
competition with the business carried on by Company or any of its affiliates or
(ii) employ or seek to employ any person then employed by Company or any of its
affiliates. Notwithstanding the preceding sentence, Employee shall not be
prohibited from owning less than one percent (1%) of any publicly traded
corporation (whether or not such corporation is in competition with Company or
its affiliates). The competitive restrictions imposed upon Employee by this
Section 8 shall be waived if, following a Change in Control of Employer,
Employee is terminated by the successor employer other than for Cause. For
purpose of this Agreement, a Change in Control shall have occurred when an
unaffiliated entity shall have acquired greater than a 50% interest in Employer.
(b) During the period of Employee's employment with the Company and
thereafter during the restrictive period applicable in Section 8 (a) above,
Employee shall not directly or indirectly, for his or her own account or for the
account of any other person anywhere in the world, solicit or otherwise attempt
to establish any business relationship of a nature that is competitive with the
business or relationship of the Company or any of its affiliates with any person
throughout the world which is or was a customer, client or distributor of the
Company or any of its affiliates at any time during which Employee was employed
by the Company (in the case of any such activity during such time) or during the
twelve-month period preceding the date of termination (in the case of any
activity after the date of termination), other than any such solicitation on
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behalf of the Company or any of its affiliates during Employee's employment with
the Company.
It is the intention of the parties hereto that the restrictions
contained in this Section be enforceable to the fullest extent permitted by
applicable law. Therefore, to the extent any court of competent jurisdiction
shall determine that any portion of the foregoing restrictions is excessive,
such provision shall not be entirely void, but rather shall be limited or
revised only to the extent necessary to make it enforceable.
Employee confirms that all restrictions in this Section are
reasonable and valid and hereby waives all defenses to the strict enforcement
thereof by Company.
9. Remedy. Should Employee engage in or perform, either directly or
indirectly, any of the acts prohibited by Sections 7 and 8 hereof, it is agreed
that Company shall be entitled to full injunctive relief, to be issued by any
competent court of equity, enjoining and restraining Employee and each and every
other person, firm, organization, association, or corporation concerned therein,
from the continuance of such violative acts. The foregoing remedy available to
Company shall not be deemed to limit or prevent the exercise by Company of any
or all further rights and remedies which may be available to Company hereunder
or at law or in equity.
10. Governing Law. This Agreement is governed by and is to be
construed and enforced in accordance with the laws of the State of Maryland,
without reference to rules relating to conflicts of law. If under such law, any
portion of this Agreement is at any time deemed to be in conflict with any
applicable statute, rule, regulation or ordinance, such portion shall be deemed
to be modified or altered to conform thereto or, if that is not possible, to be
omitted from this Agreement; the invalidity of any such portion shall not affect
the force, effect and validity of the remaining portion hereof.
11. Notices. All notices under this Agreement shall be in writing
and shall be deemed effective when delivered in person, or five (5) days after
deposit thereof in the U.S. mails, postage prepaid, for delivery as registered
or certified mail, addressed to the respective party at the address set forth
below or to such other address as may hereafter be designated by like notice.
Unless otherwise notified as set forth above, notice shall be sent to each party
as follows:
(a) Employee, to:
To the Employee at his principal place of business
(b) Company, to:
Acterna Corporation
00000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
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In lieu of personal notice or notice by deposit in the U.S. mail, a
party may give notice by confirmed telegram, telex or fax, which shall be
effective upon receipt.
12. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
understanding between Company and Employee relating to employment of Employee by
Company and supersedes and cancels all prior written and oral agreements and
understandings with respect to the subject matter of this Agreement. This
Agreement may be amended but only by a subsequent written agreement of the
parties. This Agreement shall be binding upon and shall inure to the benefit of
Employee, Employee's heirs, executors, administrators and beneficiaries, and
Company and its successors.
Withholding Taxes. All amounts payable to Employee under this
Agreement shall be subject to applicable withholding of income, employment and
other taxes.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the year and day first above written.
ACTERNA CORPORATION, for and on
behalf of ITRONIX CORPORATION
By: /s/ Xxx X. Xxxxxxxxxx
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Xxx X. Xxxxxxxxxx,
Chairman and CEO
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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