1
Exhibit 10.36
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective as of
the 16th day of May , 1998, by and between SSE TELECOM, INC. ("Telecom"), a
Delaware corporation (as used herein, Telecom and its affiliates and
subsidiaries are collectively referred to as the "Company", unless the context
requires otherwise or it is otherwise specifically provided) and XXXXX X.
XXXXXXX, residing at the address set forth after his signature (the
"Executive").
WHEREAS, the Company wishes to employ the Executive as a full time
employee of the Company in an executive capacity; and
WHEREAS, the Executive wishes to be employed by the Company on the
terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and intending to be legally bound the parties hereto
agree as follows:
1. Term. The Executive's employment shall commence on June 10, 1998
(the "Effective Date") and subject to the provisions of Section 8 hereof, the
Company hereby agrees to employ Executive and the Executive hereby accepts such
employment with the Company upon the terms and conditions herein provided.
2. Duties. The Executive, subject to the direction and control of
Telecom's Board of Directors, shall devote his full time, attention and energies
to the business and affairs of Telecom and promote the interests and welfare of
Telecom. The Executive shall also provide services to and for the benefit of the
subsidiaries and affiliates of Telecom as such further duties may, from time to
time, be specified by the Board of Directors of Telecom. The Executive shall
serve as Executive Vice President, Operations. The Executive agrees to perform
his duties in an efficient, trustworthy and business-like manner, consistent
with the policies set by the Board of Directors of Telecom who shall have the
power to alter or change the general practices of the business as such Board
deems necessary to the best interests of the Company. The Executive shall not,
during the term hereof, be interested directly or indirectly, in any manner, as
partner, officer, director, stockholder, advisor, employee or in any other
capacity in any other business, without Telecom's written consent; provided,
however, that nothing herein contained shall be deemed to prevent or limit the
right of Executive to participate as a passive investor in any business venture
which is not competitive with the Company's business.
3. Compensation Plan; Base Salary; Annual Review.
(a) Compensation Plan. As compensation for the Executive's
services under this Agreement, Executive shall be entitled to receive during his
employment the base salary and fringe benefits in accordance with this Section 3
and in accordance with the compensation plan fixed for each fiscal year of the
Company, commencing with the current fiscal year, and bonuses in accordance with
Section 4 and stock options in accordance with Section 5.
(b) Base Salary for Current Fiscal Year. For all services
rendered by the Executive under this Agreement, the Executive shall be paid an
annual base salary. The initial annual base salary is One Hundred Twenty-Five
Thousand Dollars ($125,000). The annual base salary shall be payable to the
Executive by Telecom, or by a subsidiary of Telecom, in accordance with the
practice adopted by such company for payment of wages to its employees.
(c) Annual Review. The Company will review the compensation
payable by the Company to the Executive not less frequently than once annually,
with the purpose of adjusting the Executive's compensation in such manner as the
Company shall deem appropriate. Any such adjustment may modify the
2
Executive's base salary, establish provisions for the obtaining of bonus
compensation, provide for the granting of stock options and fix the fringe
benefits to be made available to Executive. Nothing herein shall be deemed to
obligate the Company to adjust the Executive's compensation, the parties hereby
acknowledging that, except as otherwise provided in Section 8, this is an at
will employment agreement.
4. Bonuses. Bonus compensation shall be payable in cash and/or stock
options in accordance with a bonus compensation plan put into effect by
Telecom's Board of Directors for each fiscal year. The bonus compensation plan
will be administered by a committee appointed by Telecom's Board of Directors.
For the fiscal year beginning October 1, 1998, and each fiscal year thereafter,
the Executive shall have the opportunity to earn a bonus compensation with a
target range of forty percent (40%) of base salary upon the Company's achieving
certain pre-established goals in such areas as Company profitability,
advancement in the public market of the price of Telecom's common stock, and
operations. The pre-established goals, which are subject to the approval of the
Compensation Committee of Telecom's Board of Directors, will be mutually
determined by the Company and the Executive for each fiscal year, prior to or
within thirty (30) days of the commencement of each fiscal year.
Notwithstanding the foregoing paragraph, the Company will pay the
Executive a current fiscal year bonus payment of $20,000 by January 1999, such
payment to be in lieu of any bonus compensation plan for the fiscal year ending
September 30, 1998.
5. Stock Options. The Executive, subject to approval of the
Compensation Committee of Telecom's Board of Directors, will be granted stock
options for an aggregate of 50,000 shares of Telecom's common stock on the
Effective Date. Subject to applicable Internal Revenue Code limitations, the
options will be issued, to the extent possible, as incentive stock options. The
options will be granted at fair market value on the date of grant, and will vest
and be exercisable in accordance with the policies now in effect for the
granting by Telecom of options to its employees.
6. Expenses. The Executive may incur reasonable expenses in connection
with promoting and operating the Company's business, including expenses for
entertainment, travel and similar items. If Executive has complied with the
Company policy regarding business expenses, the Company will reimburse the
Executive for all such expenses upon the Executive's periodic presentation of an
itemized account of such expenditures. However, in no event shall said
Executive's business expenses exceed the Company's policy.
7. Fringe Benefits. The Company has adopted policies in respect to
fringe benefits for employees in the nature of health and life insurance,
holidays, vacation, sick leave policies and disability. A copy of the Company's
present policies in respect to fringe benefits has been delivered by the Company
to Executive.
2
3
The Company may from time to time amend its present policies and adopt other
fringe benefits to be generally available to all employees. The Company
covenants and agrees that Executive shall be entitled to participate in any such
fringe benefit policies adopted by the Company to the same extent that such
fringe benefits shall be available to and for the benefit of executive level
employees. The Company will give the Executive a vacation of fifteen (15) days
with pay each year during the term of this Agreement, the time for vacation to
be determined by mutual agreement between Company and Executive.
8. Termination of Employment.
(a) Termination With Cause. The Company may terminate this
Agreement without any further compensation to Executive beyond the date of
termination for breach of this Agreement, willful or gross misconduct in
performance of duties, dishonesty, fraud, theft, embezzlement or any criminal
act.
(b) Termination Without Cause.
(i) Without cause, the Company may terminate this
Agreement at any time upon fifteen (15) days' written notice to Executive. In
such event, the Executive, if requested by the Company, shall continue to render
his services and shall be paid his regular compensation up to the date of
termination. In addition, if Executive is terminated without cause, (a) within
the first twelve (12) month period from the Effective Date, the Executive shall
be entitled to receive, and shall receive, "Continuing Compensation" as
hereafter defined in subsection (iii) for a period of twelve (12) months from
the date of termination, payable in monthly installments during the twelve (12)
month period following termination, (b) within the second twelve (12) month
period from the Effective Date, the Executive shall receive Continuing
Compensation for a period of nine (9) months from the date of termination,
payable in monthly installments during the nine (9) month period following
termination; and (c) at any time after twenty-four (24) months from the
Effective Date, the Executive shall receive Continuing Compensation for a period
of six (6) months from the date of termination, payable in monthly installments
during the six (6) month period following termination.
(ii) Without cause, the Executive may terminate this
Agreement upon not less than sixty (60) days written notice to the Company. In
such event, unless otherwise directed by the Company, Executive shall continue
to render his services and shall be paid his regular compensation up to the date
of termination of employment. Bonus compensation that has been earned by the
Executive through the date of his termination shall be paid to Executive.
3
4
(iii) "Continuing Compensation" means and includes
the following: (x) the Executive's base salary as in effect as of the effective
date of termination, (y) any bonus compensation that would have been earned by
Executive based on the factors or elements of the bonus compensation plan which
had been achieved by Executive through the effective date of termination, and
(z) the fringe benefits customarily being made available by the Company to
Executive for health, life and disability insurance, but excluding the accrual
of holidays, vacation and sick leave, and further excluding any participatory
contributions by the Company to 401k or stock purchase or similar plans. If the
Company is obligated to make payment of any continuing compensation, such
payments shall be made during the applicable period at the same time that the
Company would make such payments on behalf of its regular employees.
(c) Termination Upon Change of Control.
(i) If the Executive's employment is terminated by
the Company as a result of a "Change of Control" (as defined below), such
termination shall be a termination without cause and Executive shall be entitled
to receive Continuing Compensation as defined in subsection (b)(iii) above for
the period provided in subsection (b)(i). For purposes of this subsection
(c)(i), the following shall also be deemed a termination of Executive's
employment without cause if such occurs following a change in control: a
material reduction in Executive's position, responsibilities, title, salary or
benefits, or if as condition of continued employment, the Executive is required
to relocate from the San Francisco area.
(ii) For purposes of this Section 8(c), a "Change of
Control" shall be deemed to have taken place if (A) a third person, including a
"group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, acquires shares of Telecom having 50% or more of the total number of
votes that may be cast for the election of Directors of Telecom; or (B) as the
result of any cash tender or exchange offer, merger or other business
combination, sale of assets or contested election or any combination of the
foregoing transactions (a "Transaction"), the persons who were directors of
Telecom before the Transaction shall cease to constitute a majority of the Board
of Telecom.
(d) Death During Employment. If the Executive dies during the
term of employment, the Company shall pay to the estate of the Executive the
compensation which would otherwise be payable to the Executive through the end
of the month in which his death occurs, including payments for accrued vacation
and accrued bonus.
9. Protective Covenants; Remedies.
4
5
(a) Non-Disclosure of Confidential Information. Executive will
not, during the term of this Agreement, or at any time during the two (2) year
period thereafter, divulge, furnish or make accessible to anyone other than the
Company, the directors and officers of the Company, unless otherwise in the
regular course of the business of the Company, any knowledge or information with
respect to (i) confidential or secret documents, processes, plans, models, sales
data, contracts, financial costs, product prices, devices, business
opportunities or any other material relating to the business and activities of
Telecom or its subsidiaries or affiliates, or (ii) any other confidential or
secret aspect of the business of Telecom or its subsidiaries or affiliates,
including without limitation any lists or other information with respect to any
clients or customers of Telecom or its subsidiaries or affiliates (the foregoing
being hereinafter collectively referred to as the "Confidential Information").
The Executive acknowledges that such Confidential Information is of special and
peculiar value to the Company; is the property of the Company, the product of
years of experience and trial and error; is not generally known to the Company's
competitors; and is regularly used in the operation of the Company's business.
(b) Non-Competition. The Executive agrees that during the term
of this Agreement and for (i) the six (6) month period following termination of
Executive's employment, or (ii) the period of any Continuing Compensation
payable as provided in Section 8(b), whichever is longer, the Executive will
not, directly or indirectly, own, manage, operate, control, be employed by,
participate in, or be connected in any manner with ownership, management,
operation or control of any business, directly in competition with the business
conducted by Telecom, its subsidiaries or affiliates, at the time of the
termination of this Agreement.
(c) Suspension of Time. Notwithstanding any provision of this
Agreement to the contrary, the time periods for the protective covenants set
forth herein shall be suspended during the period of any breach or violation of
such protective covenant, and likewise shall be suspended for the time in which
there shall be pending in any court of competent jurisdiction, any action or
proceeding to enforce such covenant where temporary or injunctive relief has not
been granted.
(d) Acknowledgment Regarding Protective Covenants. The
Executive acknowledges and understands that the covenants provided for in this
Section 9 are limited to the covenants set forth herein and do not preclude the
Executive upon the termination of this Agreement from obtaining gainful
employment or utilizing the Executive's general business skills, and that
numerous opportunities exist for the Executive to utilize such skills.
5
6
Although the Executive agrees that the time and area restraints set forth herein
are reasonable; nevertheless, if for any reason now unforeseen, a court of
competent jurisdiction finds that the time and/or area restraints agreed to
herein by the parties are unreasonable then the time and/or area restraints
agreed to herein shall be reduced to an area and/or duration deemed reasonable
by such court. The Executive acknowledges that he has read and understands the
terms of this Agreement, that same was specifically negotiated, and that the
protective covenants agreed upon herein are necessary for the protection of the
Company's business as a result of the business secrets that will be disclosed
during the employment.
(e) Remedies. In addition to any other rights and remedies
which are available to the Company, with respect to any breach or violation of
the protective covenants set forth herein, it is recognized and agreed that the
Company shall be entitled to obtain injunctive relief which would prohibit the
Executive from continuing any breach or violation of such protective covenants.
The Company may pursue any of the remedies allowed by this Agreement
concurrently or consecutively in any order as to any breach or violation of the
protective covenants, and the pursuit of any such remedies at any time will not
be deemed an election of remedies or waiver of the right to pursue the other of
such remedies as to that breach or violation, or as to any other breach or
violation of this Agreement. Pursuit of one or more remedies shall not preclude
pursuit of any other remedies herein provided or any other remedy that may be
available to the Company.
10. Disputes. In the event of any litigation between the Company and
the Executive arising out of this Agreement, and the rights and obligations of
the parties hereunder, the prevailing party shall be entitled to seek an award
from the court to recover his or its reasonable attorney's fees and court costs.
11. Notices. Any notice required or permitted to be given under this
Agreement shall be deemed sufficient if in writing, and sent by registered or
certified mail to his residence, in the case of the Executive or to its
principal office, in the case of the Company.
12. Waiver of Breach. The failure of either party to insist in any one
or more instances upon performance of any terms or conditions of this Agreement
shall not be construed as a waiver of future performance of any such term,
covenant, or condition, but the obligations of either party with respect thereto
shall continue in full force and effect.
13. Assignment. Executive acknowledges that said services to be
rendered by him are unique and personal. Accordingly, the Executive may not
assign any of his rights or delegate any of his
6
7
duties or obligations under this Agreement. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the Company.
14. Entire Agreement. This Agreement supersedes all previous agreements
between the Company and Executive and contains the entire understanding and
agreement between the parties with respect to the subject matter hereof, and
cannot be amended, modified or supplemented in any respect except by a
subsequent written agreement entered into by both parties.
15. Applicable Law. The validity, enforceability and interpretation of
this Agreement shall be determined and governed by the laws of the State of
Delaware.
16. Number of Agreements. This Agreement may be executed in any number
of counterparts, any one of which may be deemed original.
17. Severability. If any of the provisions of this Agreement are held
to be invalid or unenforceable, all other provisions hereof shall nevertheless
continue in full force and effect.
18. Pronouns. The use of any word in any gender shall be deemed to
include any other gender and the use of any word in the singular shall be deemed
to include the plural where the context requires.
19. Headings. The section headings used in this Agreement are for
convenience only and are not to be controlling with respect to the contents
thereof.
[SIGNATURES ON FOLLOWING PAGE]
7
8
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date set forth above.
COMPANY:
SSE TELECOM, INC.
May 16, 1998 By: /s/ Xxxx X. Xxxxxxxxxx
--------------------- -----------------------------
Date Xxxx X. Xxxxxxxxxx, President
and Chief Executive Officer
EXECUTIVE:
May 16, 1998 /s/ Xxxxx X. Xxxxxxx
--------------------- ---------------------------------
Date Xxxxx X. Xxxxxxx
000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
8
