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9903.23-1
Exhibit 10.123
GREMPFIN.323
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, executed as of April 1, 1999, between SpecTran
Corporation, a Delaware corporation (hereinafter referred to as the
"Corporation"), and George Roberts (hereinafter referred to as "Executive").
W I T N E S S E T H:
WHEREAS, Executive desires to be employed by the Corporation and the
Corporation desires to enter into this employment agreement with Executive.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree with each other as follows:
1. Employment. (a) The Corporation agrees to and does hereby employ
Executive, and Executive agrees to and does hereby accept employment by the
Corporation, as Senior Vice President, Chief Financial Officer, Secretary and
Treasurer of the Corporation, subject to the supervision and direction of the
Chief Executive Officer and/or Board of Directors of the Corporation. It is also
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understood that Executive may also serve simultaneously in an executive capacity
in one or more Affiliates1 of the Corporation. The term of Executive's
employment hereunder will be for the one year period commencing on April 1,
1999, and ending at midnight on the 31st day of March, 2000 (the "Base Term").
The Base Term shall be automatically renewed on a daily basis so that on each
date during which Executive is employed under this Agreement the remaining term
shall be a period of one year terminating at midnight of the first anniversary
of the day immediately preceding such date, unless at any time the outside
(i.e., non-employee) members of the Corporation's Board of Directors terminate
the automatic daily renewal feature of this Agreement as provided in Article
1(b) below. The Base Term and all renewals thereof shall be deemed the
"Employment Period" and shall hereinafter be referred to as such.
(b) At any time during the Employment Period the outside (i.e.,
non-employee) members of the Corporation's Board of Directors may by resolution
terminate the automatic daily renewal of this Agreement and set a termination
date which shall be midnight of the first anniversary of the date immediately
preceding the day on which such resolution was adopted (the "Termination Date").
1 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, or which is under common
control with the Corporation, or any corporation or other legal entity in which
the Corporation directly or indirectly has an ownership interest (whether of the
vote or economic interest or both) of more than twenty-five percent (25%).
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Written notice ("Notice of Nonrenewal") of the outside directors' resolution
setting a Termination Date shall be executed by each outside director and
delivered to Executive within two business days of the adoption of such
resolution. A Notice of Nonrenewal may be rescinded at any time by resolution of
the outside members of the Corporation's Board of Directors executed and
delivered in the same fashion.
(c) If, following delivery to Executive of the Notice of Nonrenewal,
neither the Corporation nor Executive terminates Executive's employment under
Article 12 below, this Agreement shall continue in full force and effect for the
one-year period set forth in the Notice of Nonrenewal, and shall terminate on
the Termination Date.
2. Scope of Duties/Headquarters/Other Directorships.
(a) Executive agrees that as Senior Vice President, Chief Financial
Officer, Secretary and Treasurer of the Corporation, or in such other senior
executive position to which he may be appointed, he will devote his full time
and effort during the Employment Period to the performance of the duties of such
office.
(b) Executive shall make his business headquarters at Sturbridge,
Massachusetts but will also render services at other locations where the
Corporation or its Affiliates have facilities or do business. Executive shall
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relocate should the Corporation change its headquarters. Executive shall
undertake such travel as the Corporation may request.
(c) It is understood and agreed that Executive will advise the
Corporation of his intentions to act as a director of other corporations and may
hold such directorships and shall be permitted to devote such time thereto as
may reasonably be necessary to discharge the ordinary duties attendant upon any
such directorships. Executive agrees that he will, upon request of the Board of
Directors of the Corporation, resign from any such directorship notwithstanding
that the Corporation may have previously approved his accepting or retaining
such directorship.
3. Employment Period - Annual Compensation. (a) Annual Executive
Compensation. For the services and duties to be rendered and performed by
Executive during the Employment Period, the Corporation agrees to pay Executive
compensation at the rate of not less than Fifteen Thousand Five Hundred dollars
and no cents ($15,500.00) per month, for a total of One Hundred Eighty Six
Thousand dollars and no cents ($186,000.00) per year, which amount may be
increased by action of the Board of Directors at such time or times and in such
amount or amounts as it may in its sole discretion determine (this annual amount
to be referred to as "Base Annual Executive Compensation"). Base Annual
Executive Compensation shall be payable in equal semi-monthly installments. The
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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. The Company will pay to Executive Fifty Thousand
dollars ($50,000), grossed up by one-third to offset taxes, for expenses
relating to Executive's relocation to Sturbridge, Massachusetts, payable in two
equal lump sums of Twenty Five Thousand dollars ($25,000) each, plus the tax
gross up, with the first payment to be made during Executive's first week of
employment by the Corporation, and the second payment to be made at the time of
the closing of the sale of Executive's home in Atlanta, Georgia. Executive will
be reimbursed, based upon receipts, for reasonable temporary lodging in
Sturbridge, Massachusetts for a period of up to six weeks. Executive will
receive a monthly automobile allowance of Eight Hundred Twenty Five Dollars and
no cents ($825.00).
(b) Bonus. Executive will be eligible to participate in the
Corporation's key employee incentive plan which, based upon the achievement of
certain specified objectives, will entitle Executive, while in the position of
Chief Financial Officer, to a target bonus equal to thirty percent (30%) of the
Base Annual Executive Compensation with additional opportunities to earn up to a
maximum of seventy five percent (75%) of Executive Base Annual Executive
Compensation. Executive will also be eligible to participate in the
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Corporation's all employee profit sharing plan, which entitles Executive to earn
up to ten percent (10%) of Base Annual Executive Compensation as additional
compensation. Notwithstanding anything herein to the contrary, Executive
understands and agrees that the plans referred to in this Section 3(b) are
subject to amendment or termination at the discretion of the Board of Directors.
(c) Stock Options. At the first meeting of the Compensation and
Incentive Stock Option Committee after Executive's first day as a full time
employee of the Corporation (the "First Day"), Executive will be granted
incentive stock options to purchase up to an aggregate of Twenty Five Thousand
(25,000) shares of common stock at a per share exercise price equal to the
closing price of the Corporation's common stock on the First Day, as reported on
the NASDAQ National Market (the "Closing Price"). Such options will vest at the
rate of one-third per year for three years, commencing on the first anniversary
of the date of grant, and will have a term of ten years.
4. Vacation. Executive shall be entitled to a vacation each year equal
to one (1) month. Said vacation may be taken all at once or weekly at the sole
discretion of Executive.
5. Secrets. Executive agrees that any trade secrets or any other
proprietary information (whether in written, verbal or any other form) relating
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to the existing or contemplated business and/or field of interest of the
Corporation or any of its Affiliates 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, lists of names or classes of 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
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.
6. 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 or its Affiliates, 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
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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 5 and 6.
7. Disability. (a) In the event Executive becomes partially disabled,
or becomes totally disabled (as determined in accordance with Article 7(c)
below) and such total disability has continued for less than six (6) full
consecutive calendar months, then the Corporation shall continue during the
Employment Period to pay Executive at the rate of his Base Annual Executive
Compensation as set forth in Article 3 and continue the benefits provided for
him in Articles 8 and 9 hereof. The Corporation shall retain the right,
notwithstanding Executive's partial disability, to deliver a Notice of
Nonrenewal during such time as such partial disability continues, unless
Executive has already received a Notice of Nonrenewal, in which event such prior
Notice of Nonrenewal shall remain effective notwithstanding Executive's partial
disability. In any event, the Corporation's obligations in the event of
Executive's partial disability shall terminate upon the end of the Employment
Period.
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(b) In the event Executive becomes totally disabled (as determined in
accordance with Article 7(c) below), and such total disability has continued for
six (6) full consecutive calendar months or more, then for so long thereafter
during the Employment Period as such total disability shall continue or for a
period of one (1) year, whichever is longer, Executive shall be paid at
seventy-five percent (75%) of the rate of his Base Annual Executive Compensation
as set forth in Article 3 hereof. For purposes of determining the balance of the
Employment Period under this Article 7(b), Executive shall be deemed to have
received a Notice of Nonrenewal effective on the last day of said six-month
period, unless he has already received a Notice of Nonrenewal, in which event
such prior Notice of Nonrenewal shall be controlling.
(c) For purposes of this Agreement, determination of whether Executive is
or is not totally disabled shall be made as follows: (i) Executive's inability,
physical or mental, for whatever reason, to be able to perform his duties to the
Corporation shall be total disability; and
(ii) If any difference shall arise between the Corporation and Executive as
to whether he is totally disabled, such difference shall be resolved as follows:
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Executive shall be examined by a physician appointed by the Corporation and a
physician appointed by Executive. If said two physicians shall disagree
concerning whether Executive is totally disabled, that question shall be
submitted to a third physician, who shall be selected by such two physicians.
The medical opinion of such third physician, after examination of Executive and
consultation with such other two physicians, shall decide the question.
(d) Should Executive become totally disabled then he may by action of
the Board of Directors be removed from his position and employment with the
Corporation.
8. Death. In the event of the death of Executive during the Employment
Period, the Corporation shall continue to pay Executive's Base Annual Executive
Compensation for a period of one (1) year from the date of death. The salary
payment will be made to the wife of Executive or if no wife shall survive
Executive, to his estate.
9. Employee Benefits. (a) Executive may participate in any 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
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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 7.
(b) The Corporation shall provide Executive with term life insurance
for which Executive may designate one or more beneficiaries, with a death
benefit equal to Executive's Base Annual Executive Compensation. To the extent
that such life insurance is not provided in the Corporation's existing employee
benefits package, the Corporation will endeavor to take out supplemental
coverage, provided that Executive shall cooperate in obtaining such coverage,
that Executive is not uninsurable, and that the premium is not unreasonably
high.
(c) 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.
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1 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, or which is under common
control with the Corporation, or any corporation or other legal entity in which
the Corporation directly or indirectly has an ownership interest (whether of the
vote or economic interest or both) of more than twenty-five percent (25%).
10. Covenant Not to Solicit Employees. During the one-year period
immediately following termination of Executive's employment with the Company
(the "One-Year Period"), Executive agrees that, if such agreement is requested
by the Company, 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 Company to terminate his or
her employment or consultancy with the Company. During the One-Year Period,
provided that the Company has requested the non-competition agreement referred
to above with respect to said period, Executive shall be paid, in the same
manner as paid while Executive was an employee, compensation equal to
seventy-five percent (75%) of Executive's Base Annual Executive Compensation and
employee benefits he received during the last year of employment with the
Company, and, in addition, the Company shall have the right to call upon
Executive's services as a consultant. 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.
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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 5, 6, 10, 12 and 14 shall survive
the termination of this -------- Agreement.
(b) Termination by Executive. Subject to the provisions of Article
12(c)(iii) regarding a Change in Control, if at any time during the Employment
Period (whether or not Executive has received a Notice of Nonrenewal), Executive
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elects to terminate his employment with the Corporation, then the Corporation's
obligations to Executive under this Agreement shall be limited to the Base
Annual Executive Compensation and benefits earned up to the date of Executive's
departure.
(c) Termination Without Cause. (i) Subject to the provisions of Article
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12(c)(ii) below, and provided there has been no Change in Control (as defined in
Article 12(c)(v) below), in the event the Corporation dismisses Executive
without Cause from employment in a senior executive capacity with the
Corporation, the Corporation shall continue to fulfill its obligations under
this Agreement until the later of: (A) the date six months following Executive's
dismissal, or (B) the end of the Employment Period. For purposes of determining
the end of the Employment Period under this Article, Executive shall be deemed
to have received a Notice of Nonrenewal effective on the date of his dismissal
without Cause, unless he has already received a Notice of Nonrenewal, in which
event such prior Notice of Nonrenewal shall be controlling.
(ii) Provided there has been no Change in
Control (as defined in Article
12(c)(v) below), if Executive takes other employment during the six-month period
following his dismissal without Cause, then the Corporation's obligation to
Executive shall be limited to payment of Executive's Base Annual Executive
Compensation for the balance of said six-month period. Provided there has been
no Change in Control (as defined in Article 12(c)(v) below), if Executive takes
other employment after the end of the six-month period following his dismissal
without Cause but before the end of the Employment Period, the Corporation's
obligations to Executive under this Agreement shall cease upon Executive's
taking such other employment.
(iii) In the event that a Change in Control
occurs during the Employment
Period and either [A] Executive is dismissed without Cause from employment in a
senior executive capacity up to and including twelve (12) months from such
Change in Control or [B] Executive voluntarily leaves the employ of the
Corporation up to and including twelve (12) months from such Change in Control,
then in either case the Corporation shall continue to fulfill its obligations
under this Agreement for a period of twelve (12) months from such dismissal
without Cause or voluntary departure, as the case may be; provided, however,
that if Executive takes other employment during said twelve-month period, the
Corporation's obligation to Executive for the balance of said twelve-month
period shall be limited to payment of Executive's Base Annual Executive
Compensation.
(iv) 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,
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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)(iv).
(v) "Change in Control" shall mean [A] the date of public announcement that
a person has become, without the approval of the Corporation's Board of
Directors, the beneficial owner of 20% or more of the voting power of all
securities of the Corporation then outstanding; [B] the date of the commencement
of a tender offer or tender exchange by any person, without the approval of the
Corporation's Board of Directors, if upon the consummation thereof such person
would be the beneficial owner of 20% or more of the voting power of all
securities of the Corporation then outstanding; or [C] the date on which
individuals who constituted the Board of Directors of the Corporation on the
date this Agreement was adopted cease for any reason to constitute a majority
thereof, provided that any person becoming a director subsequent to such date
whose election or nomination was approved by at least three quarters of such
incumbent Board of Directors shall be considered as though such person were an
incumbent director.
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(vi) "Cause" shall mean [A] breach of Executive's obligations under Article
5 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 certified 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: Chief Executive Officer
With an additional copy to:
Ira S. Nordlicht, Esq.
Nordlicht & Hand
645 Fifth Avenue
New York, New York 10022
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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 the Commonwealth of Massachusetts without giving
effect to the principles of conflicts of law.
15. Effective Date. This Agreement shall become effective as of the
date first mentioned in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written.
SPECTRAN CORPORATION
s/s Michelle J. Cristo By s/s Charles B. Harrison
NOTARY Name: Charles B. Harrison
Title: President and
Chief Executive Officer
S/s David Calvillo s/s George Roberts
NOTARY George Roberts
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