EXHIBIT 10.10
GREENE EMPLOYMENT AGREEMENT
This AGREEMENT made as of this 15th day of December, 1993 and
between Data Switch Corporation, a Delaware corporation with
offices at One Enterprise Drive, Shelton, Connecticut 06484 (the
"Company") and Richard E. Greene, an individual residing at 4255
Gulf Drive #125, Holmes Beach, Florida, 34217 ("Greene" or the
"Executive").
W I T N E S S E T H:
WHEREAS, Greene has resigned as Chairman of the Board of the
Company in order to limit his involvement in the day to day
operations of the Company; and
WHEREAS, the parties hereto have arrived at a mutual under-
standing with respect to the terms and conditions of Greene's
prospective future employment by the Company.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Term: The term of Greene's employment under this
Agreement (the "Term") shall begin as of January 1, 1994 and
continue until December 31, 1996, unless sooner terminated by
Greene or the Company, in accordance with the terms hereof, or
otherwise extended by the mutual agreement of the parties.
2. Duties: Greene hereby agrees to devote a substantial
portion of his business time to his position as an employee, senior
representative and executive goodwill ambassador for the Company.
It is understood and agreed that Greene shall be requested to
perform only such duties appropriate to his position as may be
assigned to him from time to time by the Chairman of the Board of
Directors. It is estimated that Greene will spend approximately
forty (40) days per annum on the business of affairs of the
Company, exclusive of the time spent by him on Board matters. It
is understood that Greene may not be required to spend more than
forty (40) days per annum on such non-Board assignments.
3. Base Compensation, Medical Benefits, Expenses
(a) The Company shall pay to Greene, and Greene shall accept
from the Company, as full compensation for all services rendered
and to be rendered hereunder, the amounts set forth on the Schedule
of Compensation, attached hereto as Schedule A, said base compensa-
tion to be payable according to the Company's standard payroll
practices. Also annexed hereto as Schedule B is a list of stock
options currently held by Greene. The non-qualified options set
forth on Schedule B shall remain in full force and effect through-
out the term hereof, and exercisable in accordance with the terms
and conditions of the stock option agreements relating thereto.
Prior to their expiration, the incentive stock options set forth on
Schedule B shall be cancelled and terminated and in replacement
thereof, Greene shall be granted a single non-qualified option to
purchase 90,000 shares at a price of $4.09 per share. Such option
shall vest in its entirety one (1) year from the date of issuance,
and shall be exercisable during the Term hereof and for ninety (90)
days thereafter. In the event that Greene is terminated without
Cause (as herein defined), or for reason of Greene's disability,
Greene's options shall be exercisable in the same manner and during
the same time period as if this Agreement has not been so terminat-
ed.
(b) Greene will also be entitled to participate, to the
extent eligible, in accordance with the provisions of any medical
and dental insurance plans and arrangements, whether now existing
or hereafter instituted, available to other senior executives of
the Company, and without any discrimination as to Greene by reason
of his less than full time services to the Company during the term
hereof. If, by reason of any provision of its health insurance
plans, the Company is unable to include Greene as a participant
thereunder, the Company shall provide, at its own cost, substan-
tially the same benefit to him, in such manner as the Company may
reasonably elect (i.e., Company-paid continuation of benefits under
COBRA or procurement of a substantially similar policy).
(c) Greene is authorized to incur reasonable travel, enter-
tainment and expenses incidental to the performance of his duties
as requested by the Chairman of the Board of Directors. If Greene
advances the funds for any such expenses, the Company will
reimburse him upon his presentation of adequate documentation of
expenses, in accordance with standard Company practices. Greene
shall also be entitled to retain possession during the term hereof
of the Company-owned automobile presently used by him. The Company
will continue to insure the vehicle. Greene will pay for all of
the other costs of operation thereof, including all costs in
connection with his car phone.
(d) Greene shall not be eligible for any bonus or other
incentive compensation programs, nor shall he be included in any
other Company fringe benefit plan or program, except as specified
herein.
4. Termination: Except as otherwise expressly provided
herein, this Employment Agreement may be terminated only as
follows:
(a) By the resignation of Executive, upon the date of such
resignation;
(b) Automatically, upon the death of the Executive;
(c) Upon written notice from the Company on the happening of
an event of Disability of the Executive. As used herein the term
"Disability" shall mean any physical or mental medical condition
which causes the Executive to be unable to perform his assigned
tasks for a period of (i) one year or (ii) the onset of any such
disabling condition with little or no likelihood of Executive
returning to work for at least forty (40) calendar days in the
twelve (12) months thereafter. In the event of any dispute
concerning the existence of a medical condition of the Executive's
likelihood of recuperation, the dispute shall be resolved by a
qualified licensed physician selected by the Executive, and
reasonably acceptable to the Company. Notwithstanding anything to
the contrary contained in this Agreement, the Company shall not
terminate Executive for having a Disability during any calendar
year in which Executive has theretofore actually or substantially
performed his duties under this Agreement; or
(d) By the Company, on written notice to the Executive with
or without "Cause." Cause, as used herein, shall mean only: (i)
undertaking of acts by Executive which result, or if prosecuted
would be likely to result, in conviction of Executive for commis-
sion of a felony in connection with his services to the Company;
(ii) violation of any material provision contained in the Agreement
to Conditions of Employment or the non-compete provisions of the
Non-Compete and Consulting Agreement with the Company executed by
Greene, both dated October 2, 1981 (attached hereto as Schedule C
is the complete list of competitors, association with which will be
deemed a violation of the non-compete provisions set forth in the
above-referenced agreements. Greene's association with any
companies other than those set forth in Schedule C shall not be
deemed such a violation.); (iii) any material failure of the
Executive to follow the reasonable written instructions of the
Board of Directors which are otherwise consistent herewith; (iv)
the failure, after written notice, of the Executive to devote the
required time and attention in good faith to the business and
affairs of the Company, consistent with the limited time he is
required to spend on the business and affairs of the Company; or
(v) a pattern of disparagement of the Company by the Executive,
such that his usefulness as an Executive ambassador-at-large for
the Company shall be substantially destroyed. The exercise by
Greene of his responsibility as a director or his rights as a
shareholder shall not in any event constitute disparagement.
5. Severance Compensation:
(a) Termination by the Company.
Without Cause: In the event of any termination of Greene's
employment by the Company without Cause prior to December 31, 1996,
it shall be deemed that Executive has met and/or satisfied any and
all of his obligations hereunder. Accordingly, the Company shall
perform and undertake to perform all of its promises and obliga-
tions to Executive as and when each such promise or obligation
comes due for the remainder of the term of this Agreement as though
it was not so terminated.
With Cause: In the event of any termination of this Agreement
by the Company with Cause prior to December 15, 1996, the
Executive's compensation hereunder shall cease upon such termina-
tion.
(b) Termination by Executive. In the event of any
resignation by Executive, his compensation hereunder shall
terminate upon the happening of such resignation.
(c) Death or Disability: In lieu of inclusion in the
Company's life and/or Disability policies, the Executive, or his
representative, as the case may be, shall receive in the event of
his death or disability, the balance of the cash compensation due
to him pursuant to Section 3(a) hereof, and the forgiveness of his
debt to the Company pursuant to Section B hereof.
6. Termination Upon Certain Events:
(a) Notwithstanding any provision to the contrary
contained herein or in a certain Executive Severance Compensation
Agreement, the Company (or its successor, as the case may be) may
terminate this Agreement without further liability to the Employee,
except as provided for herein, by giving ten (10) days notice to
the Executive, upon the happening of any of the following events:
(i) A sale of all or substantially all of its
assets to a single purchaser or group of
associated purchasers ("Sale");
(ii) A merger or consolidation of the Company
with any other company if the shareholders of
the Company own or receive upon effectuation
of any such transaction less than fifty per-
cent (50%) of the voting shares of the surviv-
ing corporation ("Merger");
(iii) The acquisition by any person or group
of associated persons of thirty percent (30%)
or more of the outstanding shares of the
Company (a "Takeover"); or
(iv) The filing by or against the Company of
a petition in Bankruptcy or for reorganization
pursuant to the Bankruptcy Laws.
(b) In the event of a termination of the Executive's
employment by the Company upon the happening of a Sale or Merger or
Takeover as provided for in subparagraph (a) (i) (ii) or (iii) of
this Section 6, the Executive shall receive Executive Severance in
accordance with his Executive Severance Compensation Agreement with
the Company, and no further compensation hereunder. Notwithstand-
ing anything to the contrary contained herein, the Company's
ability to terminate this Agreement upon any occurrence set forth
in subparagraphs (a) (i), (ii) or (iii) of this Section 6 is
contingent upon Greene's receipt of Executive Severance in
accordance with such Executive Severance Compensation Agreement.
7. Director: The Executive currently is a director of the
Company, and shall continue to so serve, without separate compensa-
tion, except for reimbursement of his expenses in connection with
attendance at Board meeting, and attention to Board matters. In
the event the Board of Directors fail to include the Executive on
management's slate for re-election to the Board of Directors in any
year, such failure may be deemed by the Executive to be a termina-
tion of this Agreement without Cause, and upon written notification
by him to the Board to that effect, this Agreement shall thereupon
be deemed terminated as if terminated Without Cause by the Company.
8. Loan Amounts: The Executive is indebted to the Company
in the amount of $93,517.61. The Company and the Executive have
agreed that an annual interest rate equal to the rate charged by
the Company's principal lender shall apply to such loan from this
date forward until January 1, 1997 and that the interest payments
with respect to the loan shall be deducted from the amounts
otherwise payable by the Company to the Executive. Notwithstanding
the foregoing, provided that Executive shall not have been
terminated for "cause" hereunder, the principal amount of such
loans shall be deemed forgiven in their entirety on January 2,
1997. In the event of a Sale, Merger or Takeover as defined in
Section 6(a)(i) (ii) or (iii) hereof, or death or Disability of the
Executive as set forth in Section 5(c) hereof, the Executive shall
also be entitled to loan forgiveness.
9. Arbitration: Any disputes arising under this Agreement
shall be resolved by arbitration under the rules for commercial
arbitration 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. If the Company determines that it has Cause to
terminate the Executive's employment, the Company shall nonetheless
be precluded from asserting any such legal position unless it
continues to advance to the Executive the Executive's base pay as
if his employment has been terminated without Cause, until a final
determination shall be rendered in the arbitration proceeding. The
Company may seek to recover, without interest, the advances so made
by it in the arbitration proceeding.
10. 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.
11. 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 at any other term or terms.
12. 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. If any notice is sent to the Company, it shall be sent to
the attention of the President, with a separate copy to Shawn A.
Smith, Esq., Corporate Counsel.
13. Expenses: Each party shall pay its own expenses in
connection with the preparation, review and execution of this
Agreement. The Company shall reimburse the Executive for his
reasonable legal expenses, up to, but not in excess of, NINE
THOUSAND FIVE HUNDRED DOLLARS ($9,500.00) actually incurred and/or
paid by Executive in connection with this Agreement and/or any
other agreements, negotiations or documentation as between the
Company and Greene.
14. Headings: Section headings are used herein for conve-
nience only and shall not affect the meaning of any provision
hereof.
15. Governing Law: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Connecti-
cut.
16. 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.
17. Entire Agreement: This instrument contains the entire
agreement between the Company and Greene relating to Greene's
employment by the Company, other than the Agreement to Conditions
of Employment, the Employee Non-Disclosure and Confidentiality
Agreement, the Non-Compete and Consulting Agreement and the
Executive Severance Compensation Agreement each of which remains in
full force and effect, except as expressly modified hereby and to
the extent of requiring arbitration of any dispute arising
thereunder. This Agreement may not be amended or terminated orally
but may be so amended by writing signed by both parties. Notwith-
standing anything to the contrary contained herein, the provisions
of the Non-Compete and Consulting Agreement which related to
consulting services are hereby deemed to be null and void.
18. Personal Property: The Executive has certain items of
personal property, including furniture, certain contents of the
safe located at the Company's offices and memorabilia on the
premises of the Company. The Executive has identified in a letter
to the Chairman of the Board the personal property which he
reserves the right to remove from the premises, to and until June
30, 1995. The Executive hereby waives his right to, and transfers
to the Company any interest he may have with respect to, all other
personalty on the premises of the Company which is not identified
in such letter, and any of his identified personal properties not
removed before July 1, 1995.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
DATA SWITCH CORPORATION
By: William J. Lifka
____________________________________
William J. Lifka
Chairman of the Board, President and
Chief Executive Officer
Richard E. Greene
_____________________________________
Richard E. Greene