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Exhibit 10.84
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, executed as of February 18, 1994 between SpecTran
Specialty Optics Company, a Delaware corporation (hereinafter referred to as the
"Corporation"), and Xxxxxxx X. Xxxx (hereinafter referred to as "Executive").
W I T N E S S E T H:
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WHEREAS, the Corporation has, on the date hereof, entered into an Asset
Purchase Agreement to purchase the assets of Xxxxxx-Xxxxxxxx Optics Company
("EBOC"), and EBOT Acquisition Corp., an affiliate of the Corporation, has
entered into a Stock Purchase Agreement with Xxxxxx-Xxxxxxxx Optical
Technologies, Inc. ("EBOT") to purchase all of the issued and outstanding
capital stock of EBOT's wholly owned subsidiary, Cal Optics, Inc.;
WHEREAS, both EBOC and EBOT have both employed Executive; and
WHEREAS, simultaneous with the closing of the above mentioned purchase
of the assets of EBOC and the stock of Cal Optics, Inc. (the "Closing"), the
Corporation wishes to employ Executive and Executive wishes to be employed by
the Corporation;
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NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree with each other as follows:
1. EMPLOYMENT. The Corporation agrees to and does hereby employ
Executive effective upon the Closing, and Executive agrees to and does hereby
accept employment by the Corporation effective upon the Closing, as Vice
President and General Manager of the Corporation, or in any other capacity as
determined by its Board of Directors, subject to the supervision and direction
of its Board of Directors, for the one-year period commencing on the date hereof
and ending on midnight one year later (the "Base Term"). The Base Term may be
extended for successive one-year periods, upon terms mutually agreed to by the
parties, subject to prior termination in accordance with the provisions of
Article 12 hereof. The Base Term and any extensions thereof shall be referred to
in this Agreement as the "Employment Period" .
2. SCOPE OF DUTIES. Executive agrees that he will devote his full
time and effort during the Employment Period to the performance of the duties of
his office. Executive shall make his business headquarters at Avon, Connecticut
and shall relocate should the Corporation change its headquarters. Executive
shall undertake such travel as the Corporation may request.
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3. Employment Period - Compensation.
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(a) EXECUTIVE COMPENSATION. For the services and duties
to be rendered and performed by Executive during the Employment Period, the
Corporation agrees to pay Executive compensation at the rate of Nine Thousand
One Hundred Eighty-Six Dollars and Sixty-Seven Cents ($9,186.67) per month,
(this amount to be referred to as "Executive Compensation"). Executive shall be
considered for an increase in Executive Compensation effective June 1, 1994.
Executive Compensation shall be payable in equal semi-monthly installments. The
Corporation shall reimburse Executive for all expenses reasonably and
necessarily incurred in connection with his employment by the Corporation,
including traveling expenses while absent on the Corporation's business from its
business headquarters. The Board of Directors of the Corporation may increase
Executive's Executive Compensation at such time or times and in such amount or
amounts as it may in its sole discretion determine.
(b) Other Compensation.
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i. PROFIT SHARING PLAN. Executive will
participate in the Corporation's Profit Sharing Plan which is based upon the
Corporation's performance and can earn all employees a bonus of 5.5% of base
earnings (Executive Compensation) if the Corporation achieves in 1994 pre-tax,
pre-bonus income of at least $704,000 on revenues of $8.5 million or a return on
sales of 8.3%. Executive understands that the
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targets set for the Profit Sharing Plan are established annually by the
Corporation's Board of Directors and often vary from year to year.
ii. INCOME GROWTH INCENTIVE PLAN. Executive will
participate in the Corporation's Income Growth Incentive Plan which is based
upon the Corporation's performance, with the targets established by the
Corporation's Board of Directors annually and with those targets often varying
from year to year. Executive's participation in this Plan will permit Executive
to earn a bonus or up to twenty five percent (25%) of Executive's base salary
(Executive Compensation).
iii. STOCK OPTIONS. Executive will receive an initial
grant of fifteen thousand (15,000) options to purchase the stock of the
Corporation's parent company, SpecTran Corporation ("SpecTran") under SpecTran's
Incentive Stock Option Plan. The exercise price of those options will equal the
market price of SpecTran's stock on the date of grant and will be subject to the
terms of SpecTran's Incentive Stock Option Plan and related Agreement. The
above-mentioned fifteen thousand (15,000) options will be granted at the Closing
(February 18, 1994). Executive will be eligible for consideration for
additional grants of stock options on an annual basis beginning in 1995.
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4. VACATION. Executive shall be entitled to a vacation each year
equal to one (1) month. Said vacation may be taken all at once or weekly at the
sole discretion of Executive.
5. SECRETS. Executive agrees that any trade secrets or any other
proprietary information (whether in written, verbal or any other form) relating
to the existing or contemplated business and/or field of interest of the
Corporation or any of its Affiliates (for the purpose of this Agreement, an
affiliate of the Corporation shall be deemed to be any corporation or other
legal entity which controls the Corporation, which is controlled by the
Corporation, or which is under common control with the Corporation), or of any
corporation or other legal entity in which the Corporation or any of its
Affiliates has an ownership interest of more than twenty-five percent (25%), and
any proprietary information (whether in written, verbal or any other form) of
any of the Corporation's customers, suppliers, licensors or licensees,
including, but not limited to, information relating to inventions, disclosures,
processes, systems, methods, formulae, patents, patent applications, machinery,
materials, notes, drawings, research activities and plans, costs of production,
contract forms, prices, volume of sales, promotional methods, list of names or
classes or customers, which he has heretofore acquired during his employment by
EBOC, EBOT, any of their respective Affiliates (as defined below) or which he
may hereafter acquire during his employment with the Corporation or any of its
Affiliates, in both cases
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whether during or outside business hours, whether or not on EBOC's EBOT's or the
Corporation's premises, as the result of any disclosures to him, or in any other
way, shall be regarded as held by him in a fiduciary capacity solely for the
benefit of the Corporation, its successors or assigns, and shall not at any
time, either during the term of this Agreement or thereafter, be disclosed,
divulged, furnished, or made accessible by him to anyone, or be otherwise used
by him, except in the regular course of business of the Corporation or its
Affiliates. Upon termination of his employment, Executive shall return or
deliver to the Corporation all tangible forms of such information in his
possession or control, and shall retain no copies thereof. Information shall,
for purposes of this Agreement, be considered to be secret if not known by the
trade generally, even though such information may have been disclosed to one or
more third parties pursuant to any business discussion or agreement, including
distribution agreements, joint research agreements or other agreements entered
into by EBOC, EBOT or the Corporation or any of their Affiliates. For the
purposes of this Agreement, "Affiliates" shall mean any corporation,
partnership, joint venture, other entity of any type or individual that directly
or indirectly, through one or more intermediaries, controls or is controlled, or
is under common control with, EBOC, EBOT or the Corporation, as the case may be.
6. PATENTS. Executive agrees to and does hereby sell, assign,
transfer and set over to the Corporation, its successors,
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assigns, or Affiliates, as the case may be, all his right, title, and interest
in and to any inventions, improvements, processes, patents or applications for
patents which he develops or conceives individually or in conjunction with
others during his employment by the Corporation, or, having possibly conceived
same prior to his employment, may complete while in the employ of the
Corporation or any of its Affiliates, in both cases whether during or outside
business hours, whether or not on the Corporation's premises, which inventions,
improvements, processes, patents or applications for patents are (i) in
connection with any matters within the scope of the existing or contemplated
business of the Corporation or any of its Affiliates, or (ii) aided by the use
of time, materials, facilities or information paid for or provided by the
Corporation, all of the foregoing to be held and enjoyed by the Corporation, its
successors, assigns or Affiliates, as the case may be, to the full extent of the
term for which any Letters Patent may be granted and as fully as the same would
have been held by Executive, had this Agreement not been made. Executive will
make, execute and deliver any and all instruments and documents necessary to
obtain patents for such inventions, improvements and processes in any and all
countries. Executive hereby irrevocably appoints the Corporation to be his
attorney in fact in the name of and on behalf of Executive to execute all such
instruments and do all such things and generally to use the Executive's name for
the purposes of assuring to the Corporation
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(or its nominee) the full benefit of its rights under the provisions of Articles
5 and 6.
7. DISABILITY. (a) In the event Executive becomes partially
disabled, or becomes totally disabled (as determined in accordance with Article
7(c) below) and such total disability has continued for less than six (6) full
consecutive calendar months, then the Corporation shall continue during the
Employment Period to pay Executive at the rate of his Annual Executive
Compensation as set forth in Article 3 and continue the benefits provided for
him in Articles 8 and 9 hereof. The Corporation's obligations in the event of
Executive's partial disability shall terminate upon the end of the Employment
Period.
(b) In the event Executive becomes totally disabled (as
determined in accordance with Article 7(c) below), and such total disability has
continued for six (6) full consecutive calendar months or more, then for so long
thereafter during the Employment Period as such total disability shall continue
or for a period of one (1) year, whichever is longer, Executive shall be paid at
seventy-five percent (75%) of the rate of his Annual Executive Compensation as
set forth in Article 3 hereof.
(c) For purposes of this Agreement, determination of
whether Executive is or is not totally disabled shall be made as follows:
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(i) Executive's inability, physical or mental,
for whatever reason, to be able to perform
his duties to the Corporation shall be total
disability; and
(ii) If any difference shall arise between the
Corporation and Executive as to whether he
is totally disabled, such difference shall
be resolved as follows: Executive shall be
examined by a physician appointed by the
Corporation and a physician appointed by
Executive. If said two physicians shall
disagree concerning whether Executive is
totally disabled, that question shall be
submitted to a third physician, who shall be
selected by such two physicians. The medical
opinion of such third physician, after
examination of Executive and consultation
with such other two physicians, shall decide
the question.
(d) Should Executive become totally disabled then he may
by action of the Board of Directors be removed from his position and employment
with the Corporation.
8. DEATH. In the event of the death of Executive during the
Employment Period, the Corporation shall continue to pay
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Executive's Annual Executive Compensation for a period of one (1) year from the
date of death. The salary payment will be made to the wife of Executive or if no
wife shall survive Executive, to his Estate.
9. EMPLOYEE BENEFITS. (a) Executive may participate in all
benefit plans to the extent, if any, that he may be eligible to do so under the
provisions of such plan or program. Those benefit plans may include medical and
insurance, life and accidental death/dismemberment insurance, short- and
long-term disability, tuition reimbursement, 401(k) plan, stock purchase plan,
vacation and pension plans. The Corporation may terminate, modify, or amend any
such plan or program, in the manner and to the extent permitted therein, and the
rights of Executive under any such plan or program shall be subject to any such
right of termination, modification, or amendment. To the extent any payments
under any such plan or program are made to Executive because he is disabled,
such amounts shall be credited against amounts due to Executive under Article 7.
(b) For the sake of clarification, and notwithstanding
any other provision of this Agreement, it is understood and agreed that all
benefits provided to Executive under this Agreement shall be provided to the
extent that they exceed any employee benefit provided to Executive other than
specifically through this Agreement, such as the programs, plans, etc. referred
to in Article 9(a) above. The benefits provided under
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this Agreement shall be supplemental to benefits provided otherwise to Executive
by the Corporation, and shall not be provided to the extent that they are
duplicative.
10. COVENANT NOT TO COMPETE. During the Employment Period,
Executive agrees not to compete with the Corporation either directly, or by
stock interest exceeding five percent (5%), or otherwise in any way in any
business in which it is then engaged anywhere in the world. During the one-year
period immediately following termination of Executive's employment with the
Corporation, Executive agrees that he will not (a) engage, directly or
indirectly, or by stock interest exceeding five percent (5%), or otherwise in
any way, in any business in which the Corporation was engaged during the term of
his employment or which the Corporation planned, during the term of his
employment to enter, (b) solicit any past, present or future customers of the
Corporation in any way relating to any business in which the Corporation was
engaged during the term of his employment, or which the Corporation planned
during the term of his employment, to enter, or (c) induce or actively attempt
to influence any other employee or consultant of the Corporation to terminate
his or her employment or consultancy with the Corporation. During this one-year
period, provided that the Corporation has requested the non-competition
agreement referred to above with respect to said period, Executive shall receive
Annual Executive Compensation and employee benefits paid or maintained in the
same fashion and in amounts not less than those he received during the
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last year of employment with the Corporation, and the Corporation shall have the
right to call upon Executive's services as a consultant. In the event that
Executive violates any provision of this Article 10, then in addition to any
other remedies available to the Corporation, the Corporation shall have the
right immediately to terminate any payments or benefits provided or to be
provided to Executive under this Agreement.
11. ASSIGNMENT. This Agreement may be assigned by the Corporation
as part of the sale of substantially all of its business; provided, however,
that the purchaser shall expressly assume all obligations of the Corporation
under this Agreement. Further, this Agreement may be assigned by the Corporation
to an affiliate, provided that any such affiliate shall expressly assume all
obligations of the Corporation under this Agreement, and provided further that
the Corporation shall then fully guarantee the performance of the Agreement by
such affiliate. Executive agrees that if this Agreement is so assigned, all the
terms and conditions of this Agreement shall remain between such assignee and
himself with the same force and effect as if said Agreement had been made with
such assignee in the first instance.
12. Termination.
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(a) FOR CAUSE. The Corporation may terminate Executive's
employment and this Agreement for Cause by delivery written notice to Executive,
setting forth the reason for termination. For the purpose of this Agreement,
"Cause" shall
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mean (i) the arrest of the Executive on charges of having committed any felony,
(ii) stealing from the Corporation, (iii) a willful breach by Executive of a
material provision of this Agreement and (iv) if Executive engages in gross
misconduct, such as fraud, dishonesty, gross negligence or insubordination. If
this Agreement is terminated for Cause, the Corporation's obligation to
Executive hereunder shall be limited to the Executive Compensation and benefits
earned up to the date notice of termination is delivered to Executive.
(b) TERMINATION WITHOUT CAUSE. If the Corporation
dismisses Executive without Cause, the Corporation shall continue to fulfill its
obligations under this Agreement until the later of: (A) the date six months
following Executive's dismissal, or (B) the end of the Employment Period.
(c) TERMINATION BY EXECUTIVE. If Executive elects to
terminate his employment with the Corporation, the Corporation's obligations to
Executive under this Agreement shall be limited to the Executive Compensation
and benefits earned up to the date of Executive's departure.
13. SURVIVAL. The provisions of Articles 5, 6, 10, 12 and 15 shall
survive the termination of this Agreement.
14. NOTICES. All notices required or permitted to be given
hereunder shall be mailed by registered mail or delivered by hand
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to the party to whom such notice is required or permitted to be given hereunder.
If mailed, any such notice shall be deemed to have been given when mailed as
evidenced by the postmark at point of mailing. If delivered by hand, any such
notice shall be deemed to have been given when received by the party to whom
notice is given, as evidenced by written and dated receipt of the receiving
party.
Any notice to the Corporation or to any assignee of the Corporation
shall be addressed as follows:
SpecTran Specialty Optics Company
c/o SpecTran Corporation
00 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
Any notice to Executive shall be addressed to the address appearing on
the records of the Corporation at the time such notice is given.
Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
15. APPLICABLE LAW. This Agreement shall be interpreted and
enforced in accordance with the laws of Massachusetts governing contracts made
in and to be performed solely in such State.
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16. EFFECTIVE DATE. This Agreement shall become effective as of
the date first mentioned in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written.
SPECTRAN SPECIALTY OPTICS COMPANY
By /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
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