EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of September 1, 1997 by and between
TRANSITION ANALYSIS COMPONENT TECHNOLOGY, INC. (the "Employer"), a Delaware
corporation with offices at 00000 Xxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx,
and Xxxxx X. Xxxxxxxxx, an individual residing at 0000 Xxxxxxxxx Xxxxx, Xxx
Xxxxx, Xxxxxxxxx (the "Employee").
W I T N E S S E T H :
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WHEREAS, the Employer desires that the Employee enter into this Agreement
and the Employee desires to enter into this Agreement and to provide his
services to the Employer, all on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the parties hereto agree as follows:
1. Definitions. Except as otherwise defined in this Agreement, as
used herein, the following terms shall have the meanings hereinafter set forth:
(a) "Minimum Target" shall have the meaning ascribed to such term
in Schedule A attached hereto.
(b) "Net Revenues" shall have the meaning ascribed to such term in
Schedule A attached hereto.
(c) "Target" shall have the meaning ascribed to such term in
Schedule A attached hereto.
(d) "Term" has the meaning set forth in Section 4 below.
(e) "Year" shall mean the period commencing on the date hereof and
ending on the first anniversary of the date hereof, and each twelve (12) month
period thereafter during the Term.
2. Employment. The Employer hereby employs the Employee as Senior
Vice President of the Employer. During the Term, the Employee shall devote all
of his business time, attention, energies and effort to the business of the
Employer and shall use his diligent and reasonable best efforts to promote the
business of the Employer. Employee shall work from the Employer's or the
Employer's Research Analysis Corporation subsidiary's office in San Diego
County, California; provided that Employee shall, at the direction of the
Employer's Board of
Directors, Chief Executive Officer and/or Executive Vice President, devote time
elsewhere, as work requirements dictate, such as at the offices of the Employer
located in Yorba Linda, California and at various other customer locations, each
as may be designated by the Employer's Board of Directors, Chief Executive
Officer and/or Executive Vice President. The Employee hereby accepts such
employment and agrees to serve the Employer in such capacity, subject to and
upon the terms and conditions set forth in this Agreement.
3. Employee's Duties. Subject to the direction of the Board of
Directors, Chief Executive Officer and/or Executive Vice President of the
Employer, the Employee shall perform such duties as are assigned to him in
connection with the strategic planning, marketing, sales, engineering, software
program development, and management of the day to day operations of Employer.
The Employee shall abide by all rules, regulations and policies established by
the Employer's Board of Directors. The Employee shall carry out all reasonable
duties and activities assigned to him by the Board of Directors, Chief Executive
Officer and/or Executive Vice President of the Employer which are consistent
with the Employee's position as an executive employee of the Employer.
4. Term of Employment. The Employee shall be employed hereunder
for a term commencing as of the date hereof and terminating on the third
anniversary of the date hereof (the "Term"). Notwithstanding the foregoing, the
Term and the Employee's employment hereunder shall be subject to earlier
termination pursuant to the provisions set forth in Section 8 of this Agreement.
5. Employee's Compensation. For performing the services
hereunder, the employee shall receive the following consideration:
(a) Subject to applicable withholding for federal income tax,
FICA, state and local income taxes and other appropriate charges, the Employee
shall be entitled to (i) a base salary ("Base Salary") amounting to $194,000 per
annum payable not less often than bi-weekly, and (ii) a bonus in respect of each
Year during the Term ("Annual Bonus") equal to the product obtained by
multiplying (A) $100,000 by (B) a fraction the numerator of which is the actual
Net Revenues of Employer for such Year (provided, however, such numerator shall
not exceed the applicable Target for such Year and such numerator shall be zero
if actual Net Revenues are not at least equal to 80% of the Target for such
Year) and the denominator of which shall be the Target for such Year. Each such
Annual Bonus shall be payable within sixty (60) days after the end of each Year.
(b) The Employee shall be entitled to be reimbursed for reasonable
business expenses necessarily incurred by him in the performance of his duties
hereunder, upon presentation of vouchers indicating the amount and business
purpose of each expenditure, with such back-up documentation as the Employer
shall reasonably require to comply with the requirements of the Internal Revenue
Service regarding substantiation of travel, entertainment and other business
expenditures. Unless such expenses have been included in a budget or budgets
previously approved by the Board of Directors, Chief Executive Officer and/or
Executive Vice President of the Employer,
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the same shall be subject to review and approval by the Board of Directors,
Chief Executive Officer and/or Executive Vice President of Employer, which
approval shall not be unreasonably withheld or delayed.
(c) The Employee shall be eligible to participate in all pension,
group health, life insurance, hospital and medical plans and in all other
employee "fringe" benefits of the Employer which are generally provided to
employees of the Employer and as may be altered from time to time. The "fringe"
benefits of the Employer which are currently available to employees are set
forth on Schedule B attached hereto. The Employee shall be fully eligible to
participate in the Employer's 1997 Stock Option Plan, subject, however, to the
terms and conditions thereof.
(d) In as much as the Employee has been an employee for more than
ten (10) years of a corporate entity which is now a subsidiary of the Employer,
the Employee shall be treated as having had ten (10) years of prior service with
the Employer for all purposes of fringe benefits which are dependent upon time
of employment.
(e) To the extent not set forth on Schedule B attached hereto, the
Employee shall be given a car allowance of $500 per month.
(f) To the extent not set forth on Schedule B attached hereto, the
Employee shall be permitted to contribute amounts to the Employee's account in
the Employer's 401K retirement plan for so long as (i) such plan exists and is
used for other executives of the Employer and (ii) such amounts do not exceed
the amount permitted by law. Nothing herein obligates the Employer to maintain
such plan.
(g) If the Employee and the Employer mutually agree for any
additional fringe benefits which are not also given to the Employer's other
executive employees, then the costs of such additional fringe benefits shall be
deducted from the Base Salary.
6. Confidential Information; Assignment of Property Rights.
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(a) All memoranda, notes, records, and other documents made or
compiled by the Employee or made available to him, in any form whatsoever,
during or prior to the Term concerning the business of the Employer, Research
Analysis Corporation or any subsidiary or affiliate of the Employer or Research
Analysis Corporation shall be the Employer's property and shall be delivered to
the Employer on the expiration or termination of the Term. The Employee shall
not use for himself or others, or divulge to others, any proprietary or
confidential information of the Employer or any subsidiary or affiliate of the
Employer obtained as a result of his employment with Employer or, prior to the
date hereof, his employment with Research Analysis Corporation, unless
authorized by the Employer. For purposes of this Section 6, the term
"proprietary or confidential information" shall include, but not be limited to,
all information which relates to specific matters such as trade secrets,
customers, potential customers, vendor lists, pricing and credit techniques,
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research and development activities, private processes, technical know-how and
expertise, products, discoveries, ideas (or the expression thereof), algorithms,
methods, concepts, formulae, programs, titles, business plans, technical
information, books and records, and any other information which the Employer or
its subsidiaries or affiliates is obligated to keep confidential pursuant to the
Employer's or such subsidiaries' or affiliates' contractual obligations to third
parties, as they may exist from time to time, or which the Employee may have
acquired or obtained by virtue of work heretofore or hereafter performed for or
on behalf of Research Analysis Corporation or the Employer, its subsidiaries or
affiliates, and their respective predecessors, or which may be acquired or may
have been acquired during the performance of said work, and which is not known
to others or readily available to others from sources other than the Employee,
Employer, employees of the Employer or of the Employer's subsidiaries or
affiliates, or is not in the public domain. The parties acknowledge that the
Employer may (but it is not obligated to) establish written guidelines and
procedures identifying proprietary or confidential information; provided that
the parties agree and acknowledge that the Employer's failure to do so shall in
no way prejudice the Employer.
(b) With respect to Inventions (as hereinafter defined, including
but not limited to software) made or conceived by the Employee, whether or not
during the hours of his employment or with the use of the Employer's facilities,
materials or personnel, either solely or jointly with others during the Term and
without the payment to the Employee of a royalty or any other consideration:
(i) The Employee shall inform the Employer promptly and
fully of such Inventions by written report, setting forth in detail
the procedures employed and results achieved. A report shall be
submitted by the Employee upon completion of any studies or research
projects undertaken on the Employer's behalf whether or not in the
Employee's opinion a given project has resulted in an Invention.
(ii) The Employee shall apply, at the Employer's request and
expense, for the United States and/or foreign letters patent or
other registrations, including but not limited to copyrights
(collectively, the "Other Registrations"), either in the Employer's
name or otherwise, as the Corporation shall desire.
(iii) The Employee hereby assigns and agrees to assign to the
Employer all of his right and interest to any and all such
Inventions, and at the Employer's expense, to make applications for
United States and/or foreign letters patent or Other Registrations
granted upon such Inventions.
(iv) The Employee shall acknowledge and deliver promptly to
the Employer, without charge to the Employer, but at its expense,
such written instruments and do such other acts in support of his
inventorship, as may be necessary in the opinion of the Employer to
obtain and maintain United States and/or foreign letters patent or
Other Registrations and to vest the entire right in such Inventions,
patents, patent applications and Other Registrations in the
Employer.
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(v) The Employer shall also have the royalty-free right to
use in its business, and to make, use, and sell products and/or
services derived from any Inventions, discoveries, concepts and
ideas, whether or not patentable or copyright able, including, but
not limited to applications, methods, formulas and techniques, as
well as improvements or know-how, whether or not within the scope of
Inventions, but which are obtained, created or made by the Employee
during the Term or with the use or assistance of the Employer's
facilities, materials or personnel.
(vi) For the purposes of this Agreement, "Inventions" mean
discoveries, concepts and ideas, whether patentable or copyrightable
or not, including but not limited to processes, methods, formulas
and techniques as well as improvements or know-how concerning any
present or prospective activities of the Employer's which the
Employee has become acquainted as a result of his employment by the
Employer or any related work product of any kind.
(vii) As to any Invention disclosed by the Employee within one
year after any termination of the Term (except for a termination by
the Employer prior to the end of the Term without Cause), there
shall be a rebuttable presumption that such Invention was made or
conceived during the Term, and the provisions of this Section 6
shall be applicable to such Invention.
(c) Employee agrees and acknowledges that his obligations under
this Section 6 have been undertaken in consideration of (i) the compensation
payable to Employee under this Agreement and (ii) Employer's execution, delivery
and performance of that certain Merger Agreement and Plan of Reorganization (the
"Merger Agreement") dated as of an even date herewith by and among Employer,
Employee and certain other parties thereto pursuant to which Employee disposed
of his interest in Research Analysis Corporation to Employer. In the event of a
breach or a threatened breach by the Employee, of the provisions of this Section
6, the Employer shall be entitled to an injunction, without being required to
post any bond, restraining the Employee from disclosing, in whole or in part,
the aforementioned proprietary or confidential information, from using
Inventions for the benefit of any person or entity other than the Employer, or
from rendering any services to any person, firm, corporation, association, or
other entity to whom such proprietary or confidential information, in whole or
in part, has been disclosed or is threatened to be disclosed. Nothing contained
herein shall be construed as prohibiting the Employer from pursuing any other
remedies available to the Employer for such breach or threatened breach,
including the recovery of damages from the Employee.
7. Restrictive Covenants.
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(a) The Employer and the Employee recognize and agree that,
although Employee's skills are not short-lived, the Employee's services are
special and unique, and that for these reasons a covenant on the Employee's part
not to compete anywhere in the continental United States or via the Internet
during the Term and for a reasonable period after any termination of the
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Term is essential to protect the business of the Employer. In light of the
foregoing, and because of the proprietary or confidential information to be
obtained by or disclosed to the Employee, and as a material inducement for the
Employer to enter into the Merger Agreement and this Agreement and to pay the
Employee the compensation as provided herein, the Employee covenants and agrees
that, from and after the date hereof and until the Designated Date (as
hereinafter defined), he shall not:
(i) directly or indirectly engage in or assist others to
engage in any Competitive Activity (as hereinafter defined), whether
such engagement shall be as an officer, director, employee,
consultant, agent, lender or security holder (except nothing
contained herein shall prevent or be construed as preventing the
Employee from holding or purchasing up to one percent (1%) in the
aggregate or less of any class of stock or securities of a
corporation which is listed on a national securities exchange or
regularly traded in the over-the-counter market);
(ii) solicit customers, suppliers or other business relations
of the Employer (and/or its affiliates or subsidiaries) for the
purpose of encouraging them to terminate their relationship with the
Employer (and/or its affiliates or subsidiaries) or to do business
with an entity or person other than the Employer (and/or its
affiliates or subsidiaries); or
(iii) encourage other employees or consultants of the Employer
or Research Analysis Corporation (and/or its affiliates or
subsidiaries) to terminate their employment or consultancy with the
Employer or Research Analysis Corporation (and/or its affiliates or
subsidiaries); or solicit any person (or entity) who was a
consultant to or employee of the Employer or Research Analysis
Corporation (and/or its subsidiaries or affiliates) within one year
of the subject solicitation to do business indirectly or directly
with Employee.
(b) As used herein, the term "Competitive Activity" shall mean and
include the business of (i) providing data bases consisting of information with
respect to semiconductors and other electronic components, obsolescence of such
components and replacement parts for such components and (ii) developing and
making available search engines for such data bases, as well as businesses which
are the same or similar to the business activities carried on by or proposed to
be carried on by Employer and its subsidiaries and affiliates in the continental
United States or via the Internet.
(c) As used in this Section 5, the "Designated Date" shall mean
the following:
(i) if the Term shall have been terminated as a result of
Employee's dismissal by Employer without Cause (as defined in
Section 8(b) below), then the Designated Date shall mean the date of
such termination, provided that upon such termination Employer shall
have the option to continue to pay Employee his then current Base
Salary in accordance with Section 5 above for a period of one year
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after such termination and, if Employer exercises such option, then
the Designated Date shall be the one year anniversary of such
termination; or
(ii) if the Term has been terminated (or has expired) for any
reason other than Employer's termination of the Term without Cause,
then the "Designated Date" shall mean the third anniversary of the
termination of the Term.
(d) It is acknowledged and agreed that the restrictions contained
in this Section 7, including, without limitation, the time periods and the
geographical areas of the restrictions, are fair and reasonable and do not place
any undue hardship on the Employee and are reasonably required for the
protection of the goodwill, the business and the interests of the Employer
(including, without limitation, those pertaining to Research Analysis
Corporation, which company was acquired from Employee pursuant to the Merger
Agreement) and its affiliates, subsidiaries and their respective officers,
directors and other employees.
(e) It is the desire and intent of the parties that the provisions
of this Section 7 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this Section 7 shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable. Such deletion shall apply only with respect to the operation of
such provisions of this Section 7 in the particular jurisdiction in which such
adjudication is made. In addition, if the scope of any restriction contained in
this Section 7 is too broad to permit enforcement thereof to its fullest extent,
then such restriction shall be enforced to the maximum extent permitted by law,
and the Employee hereby consents and agrees that such scope may be judicially
modified in any proceeding brought to enforce such restriction.
(f) The Employee agrees and acknowledges that his obligations
under this Section 7 have been undertaken in consideration of (i) the
compensation payable to Employee under this Agreement and (ii) Employer's
execution, delivery and performance of the Merger Agreement. In the event of a
breach or threatened breach by the Employee of the provisions of this Section 7,
the Employer shall be entitled to an injunction and such other equitable relief
as may be necessary or desirable to enforce the restrictions contained herein.
Nothing herein contained shall be construed as prohibiting the Employer from
pursuing any other remedies available for such breach or threatened breach or
any other breach of this Agreement.
8. Termination of Employment.
--------------------------
(a) The Term shall terminate upon the earliest of the dates
specified below:
(i) the third anniversary of the date hereof;
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(ii) the close of business on the date as of which the
Employee shall resign from his employment hereunder (which shall
constitute a breach by Employee of the terms of this Agreement); and
(iii) the close of business on the date as of which the
Employer shall have given the Employee written notice of the
termination of his employment for Cause or without Cause.
(b) Termination for "Cause" shall mean that any one of the
following conditions exists or any one of the following events has occurred in
which the Employee (i) dies, (ii) becomes disabled where "disabled" means that
by reason of a physical or mental illness which has continued for more than six
(6) consecutive months or for shorter periods which have aggregated more than
six (6) months in any consecutive twelve (12) month period, the Employee has
been substantially unable to render services of the character contemplated by
this Agreement, (iii) fails to perform any material duties or obligations
required by this Agreement, and the Employee does not cure such failure within
ten (10) days after receiving written notice of such failure from Employer, (iv)
commits a dishonest act, which is materially detrimental to Employer, (v)
breaches a fiduciary duty to Employer where such breach results (or is
reasonably likely to result) in a substantial adverse effect to the business,
assets, properties, prospects, results of operations or condition (financial or
otherwise) of the Employer or Research Analysis Corporation, (vi) commits a
felony, or (vii) fails to meet the performance criteria of at least 80% of the
Minimum Target in respect of a Year.
9. Effect of Termination.
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(a) In the event that the Term is terminated for any reason (other
than (x) a termination by Employer without Cause or (y) a termination resulting
from Employee's death or disability), then Employer shall be liable only for
that portion of the Base Salary provided for in Section 5(a)(i) hereof as to
which the Employee shall be entitled through the date of termination of the
Term; provided that if the termination of the Term is the result of the
expiration of the Term on the third anniversary of the date hereof, then
Employee shall also be entitled to receive his Annual Bonus in respect of the
then most recently completed Year in accordance with Section 5(a) above.
(b) In the event that the Term is terminated (i) by Employer
without Cause or (ii) as a result of the death or disability of the Employee,
then the Employer shall be liable only for (x) the portion of the Base Salary
provided for in Section 5(a)(i) hereof as to which Employee shall be entitled
through the date of termination of the Term and (y) a Pro Rata Portion of the
Annual Bonus (as defined below) in respect of the then current Year. "Pro Rata
Portion of the Annual Bonus" means a portion of the Annual Bonus which Employee
would have received in respect of the then current Year if the Employee had
remained employed by the Employer for such entire Year where such portion is
based on the number of days in such Year which the Employee was actually
employed by Employer. Any Pro Rata Portion of an Annual Bonus shall be
calculated by Employer and paid in accordance with Section 5 above.
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(c) The Employer shall pay any funds to which the Employee is
entitled and as set forth in this Section 9 to the Employee, his estate or legal
representative, as the case may be.
(d) Employer and Employee acknowledge that, under the terms of
that certain option agreement executed and delivered by the Employee and the
Employer on the date hereof, in the event that the Term is terminated by
Employer without Cause, then the vesting of the options under such option
agreement shall accelerate in accordance with the terms of such option
agreement.
10. Arbitration.
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10.1 Disputes Determined by Arbitration. Subject to Sections 6(c)
and 7(f) above, any and all disputes and controversies arising out of or in
connection with this Agreement or with respect to the construction and
interpretation hereof, or concerning the rights of any one or more parties
hereto or the respective obligations of each party hereto to each other party
hereto, shall be determined by arbitration in the County of San Diego,
California, in accordance with and pursuant to the then existing rules of the
American Arbitration Association. The decision of a single arbitrator chosen by
said Association shall be binding upon the parties hereto with the same force
and effect as a decision or judgment of any court of competent jurisdiction. Any
party hereto shall be entitled to have a judgment based upon the decision of
said arbitrator entered by a court of competent jurisdiction.
10.2 Notice. Any party seeking arbitration shall serve ten (10)
days' notice by certified mail, return receipt requested, upon the other party
hereto, setting forth the difference or differences that he or it desires to
arbitrate. Any party hereto shall be entitled to compel arbitration hereunder.
10.3 Expenses. The expenses charged by the arbitrator and the
American Arbitration Association for such arbitration shall initially be borne
equally between or among the parties seeking the arbitration. However, the
prevailing party in such arbitration shall be entitled to recover from the
losing party all of the reasonable attorney fees and costs incurred by the
prevailing party.
11. Effective Date. This Agreement shall become effective as of
the date hereof and, from and after that time, shall extend to and shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto, their respective successors and assigns, executors, administrators or
other legal representatives and their respective legatees and distributees.
12. Notices. Any notice required or permitted by this Agreement
shall be given by registered or certified mail, return receipt requested,
addressed to the Employer at its then principal office or to the Employee at his
residence address, or to any party hereto at such other address or addresses as
it or he may from time to time specify for the purpose in a notice similarly
given to the other party.
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13. Applicable Law. This Agreement is made and delivered in the
State of California and shall be construed and enforced in accordance with the
laws of the State of California without regard to such State's principles of
conflicts of laws.
14. Entire Understanding. This instrument contains the entire
agreement of the parties relating to the subject matter hereof, and there are no
agreements, representations or warranties relating to the subject matter not
herein set forth. This Agreement supersedes any prior written or oral agreement
or understandings relating to the subject matter hereof. No modification of this
Agreement shall be valid unless in writing and signed by the parties hereto. A
waiver of the breach of any term or condition of this Agreement shall not be
deemed to constitute a waiver of any subsequent breach of the same or any other
term or condition.
15. Unenforceability. If any provision of this Agreement shall to
any extent be held invalid or unenforceable, such invalidity and
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
16. No Prohibiting Agreement. The Employee warrants and represents
that there is no other agreement in force which prohibits him from entering into
this Agreement or otherwise performing services for the Employer, or which will
be violated in any way by his entering into this Agreement.
17. Employer's Books and Records. The Employer agrees to make and
keep full and accurate books and records describing all activities under this
Agreement in sufficient detail to enable all compensation payable to the
Employee hereunder to be determined.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the day and year first above written.
TRANSITION ANALYSIS COMPONENT
TECHNOLOGY, INC., Employer
WITNESS:
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
/s/ Xxxxxx Xxxxxx Name: Xxxxxx X. Xxxxx
----------------------------- Title: Chief Financial Officer
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxxx, Employee
WITNESS:
/s/ Xxxxxxx Xxxxx
-----------------------------
Schedule A - Certain Definitions
"GAAP" means generally accepted accounting principles applied in the
preparation of the financial statements of the Employer and (a) shall be
consistent with the then effective principles promulgated or adopted by the
Financial Accounting Standards Board and its predecessors and successors and (b)
shall be applied on a consistent basis in accordance with past practices
applicable to the Employer.
"Minimum Target" means, in respect of a Year, 80% of the Target for such
Year.
"Net Revenues" means Employer's gross consolidated revenues less any
rebates, allowances or credits given by Employer to any of its customers for
sales booked after the date of this Agreement. "Net Revenues" shall be
determined by Employer's chief financial officer calculated in accordance with
GAAP on a consolidated basis; provided that (a) an amount equal to the revenues
of any business hereinafter acquired (directly or indirectly) by Employer (by
purchase of assets, stock purchase, merger or otherwise) shall not be included
when computing Net Revenues if the then current revenues of such after acquired
business would have otherwise been included in the computation of Net Revenues,
and (b) if the Minimum Target is exceeded in respect of a Year (an "Achieved
Year"), then the amount by which the Net Revenues achieved in such Achieved Year
exceed the Minimum Target shall be carried forward and added to the Net Revenues
for the Year immediately following such Achieved Year if (and only if) the Net
Revenues (calculated before any adjustment pursuant to this clause (b)) achieved
in such following Year exceed 120% of the Net Revenues achieved in the Achieved
Year. Such determination shall be final and binding upon Employer and Employee,
absent manifest error.
"Target" in respect of a Year means the following respective amount of Net
Revenues:
$3,780,000 for the first Year of the Term;
$5,280,000 for the second Year of the Term; and
$7,400,000 for the third Year of the Term.
Schedule B
Transition Analysis Component Technology, Inc.
1997 Employee "Fringe" Benefits
