EXHIBIT 10.08
EMPLOYMENT AGREEMENT
AGREEMENT, dated this 1st day of April, 1994, by and between
Frederick Dietz, Jr., 31 Doe Hollow Road, Trumbull, CT 06611
("Dietz") and Data Switch Corporation, a Delaware corporation with
its principal office at One Enterprise Drive, Shelton, CT (the
"Company").
W I T N E S S E T H:
WHEREAS, Data Switch desires that Dietz assume the position of
Deputy President of the Company and Dietz has agreed to assume such
position; and
WHEREAS, the position to be assumed by Dietz involves certain
unique duties and responsibilities.
NOW, THEREFORE, the parties hereby agree that the following
terms and conditions shall govern Dietz's employment with the
Company as Deputy President.
1. Position and Duties. Effective March 25, 1994, Dietz
shall assume the role of Deputy President of the Company. The term
of Dietz's employment as such shall continue until terminated by
Dietz or the Company in accordance with the provisions of Section
4 hereof. In connection with such position, Dietz agrees to
undertake the following duties:
(a) Facilitating the absorption of T-Bar activities into
those of the Company as a whole while optimizing T-Bar sales
opportunities;
(b) Participating in and contributing to the Product
Council, under the leadership of the Vice President of Strategic
Marketing;
(c) Taking the place of the President and Chief
Executive Officer in the negotiation of various partnering and
other corporate agreements, and serving as President in the absence
of the Company's President and Chief Executive Officer, at such
times as are specifically requested by the President and Chief
Executive Officer; and
(d) Performing such other duties and undertaking such
tasks as assigned by the President and Chief Executive Officer.
2. Compensation. The Company will pay to Dietz the
following compensation for the performance of his duties hereunder:
(a) Base salary of $175,000 per annum, payable in
accordance with the Company's standard payroll practices;
(b) 1994 Incentive compensation at a rate calculated by
multiplying .0032 by 1994 T-Bar revenues;
(c) In the event that bonuses are payable under the Data
Switch Bonus Plan and/or the 1992 Executive Stock Incentive Plan,
Dietz will receive bonus payments thereunder at the same percentage
of base salary then payable to the Company's Vice President of
Sales, Marketing and Service. Such bonuses, if payable under the
terms of the applicable plan and by agreement of the Board of
Directors of the Company, will be paid to Dietz whether or not the
Company or Dietz exercises its or his right to terminate this
Agreement pursuant to Section 4 hereof prior to the time such
bonuses are payable.
(d) Such other health and life insurance and other
fringe benefit plans or arrangements as are generally available to
the executive officers of the Company.
3. Change in Control. The Executive Severance Compensation
Agreement between Dietz and the Company will remain in full force
and effect during the term of this Agreement, including the
separation provisions thereof; provided, however, that in the event
that amounts become payable to Dietz under the Executive Severance
Compensation Agreement, all payments to Dietz as specified in
paragraph 4(a) hereof shall cease at the time such payments under
the Executive Severance Compensation Agreement are made to Dietz.
4. Termination.
(a) At any time after September 1, 1994, the Company or
Dietz may elect to terminate this Agreement, upon written notice to
the other. In the event that the Company exercises such right,
Dietz shall be entitled to continuation of his base salary and
Company payment of his COBRA premiums for a period of twelve (12)
months after such notification. In the event that Dietz exercises
such right, Dietz shall be entitled to continuation of his base
salary and Company payment of his COBRA premiums for a period of
twelve (12) months after notification; provided, however, that
Dietz shall be obligated to work full time for the Company for the
first three (3) months of such severance period.
(b) Notwithstanding anything to the contrary contained
herein, in the event that Dietz obtains other employment during the
severance period, the Company shall cease its COBRA payments
hereunder. Dietz will be obligated to notify the Company immedi-
ately upon his acceptance of such other employment.
(c) Upon any termination of this Agreement, Dietz's
participation in the Company's life insurance, 401(k), and Employee
Stock Purchase plans shall cease as of the date Dietz ceases work
as a full time employee of the Company.
5. Non Competition. In consideration of the promises
hereunder, Dietz agrees that for a period of one (1) year following
the termination of this Agreement for any reason, Dietz will not
accept employment from any direct competitor of the Company, which
competitors are set forth on Schedule A attached hereto.
6. Arbitration. Any disputes arising under this Agreement
will be resolved by arbitration under the rules of the American
Arbitration Association, and judgment on any award rendered may be
entered in any court having competent jurisdiction. The place of
arbitration shall be the office of the American Arbitration
Association in or nearest to Shelton, Connecticut.
7. No Assignment. This Agreement shall be binding upon the
parties hereto, their legal representatives, heirs, successors and
assigns, and neither party may assign this Agreement without the
prior written consent of the other party.
8. No Waiver. Failure to insist upon strict compliance with
any of the terms, covenants or conditions of this Agreement shall
not be deemed a waiver or such term, covenant or condition, nor
shall any waiver or relinquishment of such right or power consti-
tute a waiver or relinquishment of any other term or terms.
9. Notices. Any notices required or permitted to be given
hereunder to either party shall be deemed given if delivered or
sent by registered or certified mail, return receipt requested, to
such party at his or its address as hereinabove set forth, or to
such other address as such party may designate by notice similarly
given.
10. Headings. Section headings are used herein for conve-
nience only and shall not affect the meaning of any provision
hereof.
11. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Connecti-
cut.
12. Remedies. In addition to any other rights or remedies
the parties may have under this Agreement or applicable law, the
parties shall have the right to enforce the terms of this Agreement
by specific performance or other equitable remedies, enforceable
through arbitration, or in aid of arbitration, in accordance with
the provisions of paragraph 9 hereof.
13. Entire Agreement. This instrument contains the entire
agreement between the Company and Dietz relating to the matters
herein set forth other than the Agreement to Conditions of
Employment and various Stock Option Agreements between Dietz and
the Company, which will remain in full force and effect and are not
modified hereby, except to the extent of requiring arbitration of
any dispute arising thereunder. This Agreement may not be amended
or terminated orally but only in a writing signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
DATA SWITCH CORPORATION
By:William J. Lifka_________
Witness William J. Lifka
President and
Chief Executive Officer
Frederick Dietz, Jr._____
Witness Frederick Dietz, Jr.
SCHEDULE A
COMPETITORS
Network Systems Corporation
Computer Network Technology (CNT)
Digital Controls
Beall Technologies, Inc.
Fibercom
Telenex
Dynatech
K.C.I., Inc.
IBM