Exhibit 10.112
AGREEMENT
AGREEMENT, executed as of December 1, 1998 between SpecTran
Corporation, a Delaware corporation (hereinafter referred to as the
"Corporation"), and Bruce A. Cannon (hereinafter referred to as "Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Corporation are parties to an Employment
Contract dated as of December 14, 1992 (the "1992 Employment Contract");
WHEREAS, the Executive has resigned from his positions with the
Corporation and its subsidiaries effective December 1, 1998; and
WHEREAS, the Corporation recognizes the effort and skill Executive has
contributed to the operation of the Corporation during his long tenure with the
Corporation and both the Executive and the Corporation wish to provide for an
orderly transition and enter into this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree with each other as follows:
1. Termination of 1992 Employment Contract. This Agreement supercedes
and replaces the 1992 Employment Contract, which shall be deemed terminated as
of the date first written above.
2. Resignation as Director. Upon the execution of this Agreement,
Executive hereby resigns as a Director of the Corporation and each of its
subsidiaries on whose Boards he is serving.
3. Employment. The Corporation agrees to and does hereby employ
Executive, and Executive agrees to and does hereby accept employment by the
Corporation, subject to the direction of its President and Chief Executive
Officer, Chief Financial Officer and/or Board of Directors, for the period
commencing on the date of this Agreement and ending at midnight on December 1,
2000 (the "Termination Date," and collectively the "Base Term"). The Base Term
shall not be renewable except by written amendment signed by both parties to
this Agreement. The Base Term and any amendments or extensions shall be referred
to hereinafter as the "Employment Period."
4. Scope of Duties. Executive agrees that he shall provide advice and
assistance to the Board of Directors, Chief Executive Officer and/or Chief
Financial Officer of the Corporation and shall perform such projects as
reasonably requested and mutually agreed. Executive agrees that he will be
available to act in the capacity of a consultant to the Corporation and that in
the event that Executive is so called upon he will devote such time and effort
to the performance of his duties as a consultant to the Corporation as Executive
and Corporation shall mutually consider appropriate.
5. Employment Period - Annual Compensation/Stock Options.
(a) As of the date of this Agreement, for the services and duties for
which Executive agrees to be available to perform during the Employment Period,
the Corporation agrees to pay Executive annual compensation at the rate of
Eighty Six Thousand Five Hundred Eighty Nine Dollars and no cents ($86,589.00)
per year (this annual amount to be referred to as "Annual Executive
Compensation"). Annual 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 his business headquarters.
(b) Any options to purchase the Company's common stock that have
previously been granted to Executive pursuant to the Company's 1991 Incentive
Stock Option Plan (the "Plan") and have not yet vested will continue to vest in
their normal course pursuant to the Plan through December 1, 1999. Any options
to purchase the Company's common stock granted to Executive which do not vest by
December 1, 1999 shall expire as of such date. In addition, all vested options
to purchase the Company's common stock granted to Executive which are not
exercised on or before March 31, 2001 at 5:00 p.m. (EST) will expire at 5:00
p.m. (EST) on March 31, 2001.
6. 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, one 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, licensor 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 the
Corporation or any of its affiliates or which he may hereafter acquire during
his employment with the Corporation or any of its affiliates, in both cases
whether during or outside business hours, whether or not on 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 the
Corporation or any of its affiliates.
7. Patents. Executive agrees to and does hereby sell, assign, transfer
and set over to the Corporation, its successors, 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
Company'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, sale or assignment 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 (or its nominee) the full benefit of its rights
under the provisions of Articles 6 and 7.
8. Disability and Death. In the event Executive becomes either
partially or totally disabled during the term of this Agreement then the
Corporation shall continue, during the term of this Agreement, to pay Executive
at the rate of his Annual Executive Compensation as set forth in Article 5(a)
and continue the benefits provided for him in Article 9 hereof. In the event of
Executive's death, the payments of Annual Executive Compensation provided herein
will be made to the wife of Executive, or if no wife shall survive Executive, to
his Estate.
9. Employee Benefits.
(a) For the term of this Agreement, Executive may participate in any
pension plan, life insurance, hospitalization or surgical program, or insurance
program presently in effect or hereafter adopted by the Corporation, to the
extent, if any, that he may be eligible to do so under the provisions of such
plan or program. 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 amount due to Executive under Article 8. Executive is
not entitled to any automobile allowance.
(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 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 Solicit Employees. During the term of this
Agreement, Executive agrees that he will not (a) 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 (b) 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. 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.
(a) Survival. The provisions of Articles 6, 7, 10, 12, 13 and 14 shall
survive the termination of this Agreement.
(b) Termination by Executive. If at any time during the period of
December 1, 1998 through November 30, 1999, Executive elects to terminate his
employment with the Corporation or takes other employment, then the
Corporation's obligations to Executive under this Agreement shall be limited to
the Annual Executive Compensation and benefits earned up to the date of
Executive's departure. If Executive elects to terminate his employment with the
Corporation or takes other employment during the period beginning December 1,
1999 through the end of the Base Term, the Corporation will continue to pay
Annual Executive Compensation to Executive for the remainder of the Base Term,
but Executive will forfeit all of his rights to other benefits provided for in
this Agreement
(c) Termination Without Cause.
(i) In the event the Corporation terminates this
Agreement without Cause, the Corporation shall continue to
fulfill its obligations under this Agreement until the end of
the Employment Period.
(ii) If Executive takes other employment before the
end of the Employment Period, the Corporation's obligations to
Executive under this Agreement will be treated the same as
under Section 12(b) hereof.
(iii) Notwithstanding anything to the contrary in
this Agreement, the Corporation, in its sole and absolute
discretion, may accelerate the payment of any amounts payable
under Article 12(c) hereof to Executive, provided, however,
that accelerating such payments does not affect Executive's
eligibility to continue his insurance benefits on the same
basis (both with respect to coverage and contributions) as the
Corporation's active employees until such time as he would
have received the last amount payable under Article 12(c)
hereof had payment thereof not been accelerated pursuant to
this Article 12(c)(iii).
(iv) "Cause" shall mean [A] breach of Executive's
obligations under Article 6, 7 or 10 of this Agreement, [B]
stealing from the Corporation or [C] Executive's conviction of
a felony.
(d) Executive agrees not to apply for or receive unemployment insurance
benefits while receiving any benefits under this contract.
13. Notices. All notices required or permitted to be given hereunder
shall be mailed by registered mail or delivered by hand 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 Corporation
50 Hall Road
Sturbridge, MA 01566
Attn: President and Chief Executive Officer
With a copy to:
Brian M. Hand, Esq.
Nordlicht & Hand
645 Fifth Avenue
11th Floor
New York, New York 10022
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.
14. Applicable Law. This Agreement shall be interpreted and enforced in
accordance with the laws of Massachusetts.
15. Effective Date. This Agreement shall become effective as of the
date first mentioned in this Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written.
SPECTRAN CORPORATION
By: s/s Charles B. Harrison
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Charles B. Harrison
President and CEO
s/s Bruce A. Cannon
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Bruce A. Cannon