exv10w17



 



Exhibit 10.17



November 1, 2002


Dear Mr. Booker:


This Letter Agreement will confirm our offer of continuing employment with
Video Network Communications (the “Company”) on the following terms and
conditions:



	1.	 	Employment. This Letter Agreement will govern the terms and
conditions of your continuing employment commencing on November 1, 2002
(the “Effective Date”) until your employment is terminated pursuant to
paragraph 7 below. The period during which you are further employed by
the Company is referred to as the “Employment Period”.
	 
	2.	 	Position; Duties. You will be employed by the Company as its
Senior Vice President, Corporate Development. You will report to the Chief
Executive Officer of the Company or such persons as designated by its
Board of Directors (the “Board”) and shall perform the customary duties of
a Senior Vice President, Corporate Development of a video networking
company and such other duties that may from time to time be assigned to
you by the Company. You agree to use your best efforts to perform such
duties faithfully, to devote all of your working time, attention and
energies to the businesses of the Company, and while you remain employed,
not to engage in any other business activity that is in conflict with your
duties and obligations to the Company. 
	 
	3.	 	Base Salary. You will be paid a base salary (“Base Salary”) at an
annual rate of $168,000, payable in accordance with the Company’s normal
payroll practices. Your Base Salary will be reviewed at least annually,
and may be subject to upward adjustment at the discretion of the Board (or
a committee thereof). Your Base Salary shall not be decreased unless
there are proportional decreases in salary imposed on all of the Company’s
executive employees because the Company’s financial performance dictates
such decreases.
	 
	4.	 	Annual Bonus. In addition to the Base Salary, you shall have the
opportunity to earn an annual bonus for each fiscal year of the Company
that ends during the Employment Period (the “Bonus Award”) based on
achievement of targeted levels of performance, as established in advance
by the Board or a committee thereof. The Board, in its discretion, may
award a higher bonus for any year for performance that exceeds target
levels. To the extent performance goals are based on the achievement of
financial targets, the Board (or a committee thereof) shall determine
whether such targets are satisfied based on the audited consolidated
financial statements of the Company, and the determination by the Board
(or a committee thereof) shall be final and binding. In making such
determination, the Board (or a committee thereof) may make adjustments to
the audited numbers or to the targets themselves to take into account
unusual or non-recurring events, including, without limitation,
acquisitions and divestitures.



 






 







	5.	 	Stock Option Award. You will be granted the option to purchase
shares of common stock of the Company in an amount and at an exercise
price to be determined by the Company. Part or all of such stock option
grants may be performance based. The terms and conditions of such
purchase are set forth in the Stock Option Agreement which shall be
provided to you in a timely fashion. 
	 
	6.	 	Benefits. You will be provided with such retirement benefits,
fringe benefits and insurance coverages as are made available to officers
of the Company generally. In addition, you will be provided with
supplemental disability insurance as mutually agreed by you and the
Company.
	 
	7.	 	Termination.




		
	 	        (a) General. You will be free to resign from the Company at
any time, and the Company will be free to terminate your employment at
any time.




		
	 	        (b) Termination Without Severance Benefits. In the event
your employment with the Company is terminated by reason of (i) your
resignation without “Good Reason” (as defined below), (ii) your death,
(iii) your “Disability” (as defined below), or (iv) your discharge by the
Company for “Cause” (as defined below), this Letter Agreement shall
terminate including, without limitation, the Company’s obligations to
provide any compensation, benefits or severance to you under this Letter
Agreement, other than any amounts earned and payable to you but not yet
paid.




		
	 	        (c) Termination With Severance Benefits. In the event the
Company terminates your employment other than for Cause, or you terminate
this Agreement for Good Reason, then in lieu of any other severance
benefits otherwise payable under any Company policy, or any other damages
payable in connection with such termination, you will be entitled to
receive (i) continued payment of your Base Salary for six (6) months and
(ii) for a period of one (1) year after termination of your employment,
direct payment by the Company to the carrier of the premiums due for any
health insurance continuation coverage elected by you under the Company’s
group health plans.




		
	 	        (d) Compliance and Release. Your right to the payments in
paragraph 7(c) hereof shall be conditional upon (i) your continuing
compliance with the restrictive covenants and provisions contained in
paragraph 8, and (ii) your execution of a customary release of claims in
favor of the Company and its Affiliates, in a form reasonably prescribed
by the Company.




		
	 	        (e) Liquidated Damages. The Company and you hereby stipulate
that the damages which may be incurred by you as a consequence of any
such termination of employment are not capable of accurate measurement as
of the date first written above and that the liquidated damages payments
provided for in this Letter Agreement constitute a reasonable estimate
under the circumstances of and are in full satisfaction of, all damages
sustained as a consequence of any such termination of employment.




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	 	        (f) Definition of “Cause”. For purposes of this Letter
Agreement, “Cause” means an omission, act or action or series of
omissions, acts or actions by you which, in the determination of the
Company, constitute(s), cause(s) or result(s) in (i) your material
dishonesty including, without limitation, theft, fraud, embezzlement,
financial misrepresentation or other similar behavior or action in your
dealings with or with respect to the Company or any Affiliate thereof or
entity with which the Company or any Affiliate thereof, shall be engaged
in or be attempting to engage in commerce; (ii) your conviction for, or
the your entry of a plea of guilty or nolo contendere to, the commission
of a felony; (iii) your willful refusal to follow the lawful directives
of the Company with respect to your duties hereunder, which directives
shall be consistent with your duties and position as an officer of the
Company, as set forth in this Letter Agreement, and which refusal is not
cured by you within thirty (30) calendar days after written notice from
the Company to you setting forth with reasonable specificity the nature
thereof; or (iv) the material breach of any provision of this Letter
Agreement which is not cured by you within thirty (30) calendar days
after written notice from the Company to you setting forth with
reasonable specificity the nature of such breach. For purposes of this
Letter Agreement, “Affiliate” shall have the meaning assigned to it in
the Stockholders Agreement, dated as of October 17, 2001, by and among TM
Acquisition Holdings, Inc. and its stockholders (the “Stockholders
Agreement”)).




		
	 	        (g) Definition of “Good Reason”. For purposes of this Letter
Agreement, “Good Reason” may only be claimed by you following a “Sale of
the Company” and means either (i) the assignment to you, without your
written approval, of duties or responsibilities materially inconsistent
with your position as described in Paragraph 2 above, or (ii) any
material reduction in your duties, responsibilities or authority from
those in effect on the date hereof; provided, however, that
the occurrence of any of (i) or (ii) shall not constitute Good Reason
unless written notice from you to the Board setting forth with reasonable
specificity the nature of such assignment or reduction is given within 60
calendar days after the date on which such assignment or reduction first
occurs and such assignment or reduction is not cured or otherwise
mutually resolved within 30 calendar days after such written notice is
delivered to the Board. For purposes of this Letter Agreement, “Sale of
the Company” shall have the meaning assigned to it in the Stockholders
Agreement.




		
	 	        (h) Definition of “Disability”. For purposes of this Letter
Agreement, “Disability” means any physical or mental condition which
renders you incapable of performing your essential functions and duties
hereunder for a period of 90 consecutive days or any 90 days within a
period of 180 consecutive days, as determined in good faith by the
Company.




	8.	 	Restrictive Covenants.




		
	 	        (a) Confidential Information. You acknowledge and agree that
the information, observations, and data obtained by you while employed by
the Company or any of its subsidiaries or any of its Affiliates
concerning the business affairs of the Company or any subsidiary or
Affiliate of the Company (“Confidential Information”) are



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	 	the property of the Company, such subsidiary or such Affiliate.
Consequently, you agree that, except to the extent required by applicable
law, statute, ordinance, rule, regulation or orders of courts or
regulatory authorities, you shall not at any time (whether during or
after the Employment Period) disclose to any unauthorized person or use
for your own account any Confidential Information without the prior
written consent of the President, unless and to the extent that the
aforementioned matters become generally known to and available for use by
the public other than as a result of your acts or omissions to act or as
required by law. You shall deliver to the Company at the termination of
your employment, or at any other time the Company may request, all
memoranda, notes, plans, records, reports, computer tapes and software
and other documents and data (and copies thereof) relating to the
Confidential Information, Work Product (as defined below) and the
business of the Company or any subsidiary or Affiliate of the Company
which you may then possess or have under your control.




		
	 	        (b) Inventions and Patents. You agree that all inventions,
innovations, improvements, developments, methods, designs, analyses,
drawings, reports, and all similar or related information which relates
to the Company’s or any of its subsidiaries’ or Affiliates’ actual or
anticipated business, research and development or existing or future
products or services and which are conceived, developed or made by you
prior to the date hereof or while employed by the Company or any of its
subsidiaries or Affiliates (“Work Product”) belong to the Company or such
subsidiary or Affiliate. You will promptly disclose such Work Product to
the President and perform all actions reasonably requested by the
President (whether during or after the Employment Period) to establish
and confirm such ownership (including, without limitation, assignments,
consents, powers of attorney and other instruments).




		
	 	        (c) Non-competition. You acknowledge that in the course of
your employment with the Company and its subsidiaries and Affiliates you
have become familiar, and you will become familiar, with the Company’s
and its subsidiaries’ and Affiliates’ trade secrets and with other
Confidential Information and that your services have been and will be of
special, unique and extraordinary value to the Company and its
subsidiaries and Affiliates. Therefore, you agree that unless you are
terminated by the Company without Cause, or you terminate your employment
with the Company for Good Reason, you shall not, during the Restricted
Period, directly or indirectly own, operate, manage, control, participate
in, consult with, advise, engage in services for any competitor of the
Company, its subsidiaries or Affiliates, or in any manner engage in any
start up of a business (including by yourself or in association with any
person, firm, corporate or other business organization or through any
other entity) in competition with the businesses of the Company or its
subsidiaries or Affiliates as in existence or in process on the date of
termination of your employment (the “Businesses”). Nothing herein shall
prohibit you from being a passive owner of not more than 2% of the
outstanding stock or equity of an entity which is publicly traded, so
long as you have no active participation in the business of such entity.
For purposes of this paragraph 8, the Restricted Period means the period
during which you are employed by the Company or any of its subsidiaries
and the 6-month period following such termination.



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	 	        (d) Non-solicitation. During the Restricted Period, you
shall not directly, or indirectly through another person or entity use
proprietary knowledge or information relating to the Company, its
subsidiaries or its Affiliates obtained during the course of your
employment with the Company with the intention to, or which a reasonable
person would construe to (i) induce or attempt to induce any employee of
the Company or any of its subsidiaries or Affiliates to leave the employ
of the Company or such subsidiary or Affiliate, or in any way interfere
with the relationship between the Company or any of its subsidiaries and
Affiliates and any employee thereat, including, without limitation,
inducing or attempting to induce any union, employee or group of
employees to interfere with the Business or operations of the Company or
its subsidiaries or Affiliates, (ii) hire any person who was an employee
of the Company or any subsidiary or Affiliate of the Company at any time
within the six-month period prior to the date you employ or seek to
employ such person, or (iii) induce or attempt to induce any customer,
supplier, distributor, franchisee, licensee or other business relation of
the Company or any subsidiary or Affiliate of the Company to cease doing
business with the Company or such subsidiary or Affiliate, or in any way
interfere with the relationship between any such customer, supplier,
distributor, franchisee, licensee or business relation and the Company or
any subsidiary or Affiliate of the Company.




		
	 	        (e) Non-disparagement. You shall not at any time during or
after the Employment Period whether in writing or orally, criticize,
disparage, or otherwise demean in any way the Company or its subsidiaries
or Affiliates or their respective products, officers, directors,
employees or shareholders.




		
	 	        (f) Future Cooperation. You agree that upon the Company’s
reasonable request following your termination of employment, you will use
reasonable efforts to assist and cooperate with the Company in connection
with the defense or prosecution of any claim that may be made against or
by the Company or its Affiliates, or in connection with any ongoing or
future investigation or dispute or claim of any kind involving the
Company or its Affiliates, including any proceeding before any arbitral,
administrative, regulatory, self-regulatory, judicial, legislative, or
other body or agency. You will be entitled only to reimbursement for
reasonable out-of-pocket expenses (including travel expenses) incurred in
connection with providing such assistance.




		
	 	        (g) Enforcement. You agree that: (i) the covenants set
forth in this paragraph 8 are reasonable in all respects, including,
where applicable, geographical and temporal scope, and (ii) the Company
would not have entered into this Letter Agreement but for your covenants
contained herein, and (iii) the covenants contained herein have been made
in order to induce the Company to enter into this Letter Agreement. If,
at the time of enforcement of this paragraph 8, a court shall hold that
the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum
duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court
shall be allowed to revise the restrictions contained herein to cover the
maximum period, scope and area permitted by law. You recognize and
affirm that in the event of your breach of any provision of this
paragraph 8, money damages would be inadequate and the



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	 	Company would have no adequate remedy at law. Accordingly, you
agree that in the event of a breach or a threatened breach by you of any
of the provisions of this paragraph 8, the Company, in addition and
supplementary to other rights and remedies granted by law existing in its
favor (including recovery of damages and costs (including reasonable
attorneys’ fees)), may apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive or other relief
in order to enforce or prevent any violations of the provisions hereof
(without posting a bond or other security).




	9.	 	Insurance and Indemnification.




		
	 	        (a) D&O Insurance. The Company shall cause you to be covered
by and named as an insured under any policy or contract of insurance
obtained by it to insure its directors and officers against personal
liability for acts or omissions in connection with service as an officer
or director of the Company or service in other capacities at its request.
Any coverage provided to you pursuant to this paragraph 9 shall be of
the same scope and on the same terms and conditions as the coverage (if
any) provided to other officers or directors of the Company and shall
continue for so long as you shall be subject to personal liability
relating to such service. 




		
	 	        (b) Indemnification. The Company will indemnify and hold you
harmless from and against any and all liabilities, suits, claims,
actions, causes of actions, and debts arising from and in connection with
your employment by the Company and in the performance of your duties for
the Company in accordance with the terms of this Letter Agreement. Such
indemnification shall not apply to any such liabilities, suits, claims,
actions, causes of actions or debts resulting from: (i) any action by you
constituting fraud or criminal conduct, (ii) any action by you which is a
material violation of the terms of this Letter Agreement or in violation
of any written direction given to you, pertaining to any action within
the scope of your duties, by the Board, such persons designated by the
Board or the Company’s Chief Executive Officer or President, or (iii) any
action which is in violation of any laws, rules or regulations applicable
to the Company and/or the business of the Company, except to the extent
such violation of laws, rules or regulations was unintentional and was
performed by you while acting within the scope of your employment.




	10.	 	Key Man Insurance. During the Employment Period, the Company may
at any time effect insurance on your life and/or health in such amounts
and in such form as the Company may in its sole discretion decide. You
will not have any interest in such insurance, but shall, if the Company
requests, submit to such medical examinations, supply such information and
execute such documents as may be required in connection with, or so as to
enable the Company to effect, such insurance.
	 
	11.	 	Withholding. The Company shall have the right to withhold from
any amount payable to you hereunder an amount necessary in order for the
Company to satisfy any withholding tax obligation it may have under
applicable law.
	 
	12.	 	Governing Law. The terms of this Letter Agreement, and any action
arising thereunder, shall be governed by and construed in accordance with
the domestic laws of the State of



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	 	 	New Hampshire, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New Hampshire or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New Hampshire.
	 
	13.	 	Waiver. This Letter Agreement may not be released, changed or
modified in any manner, except by an instrument in writing signed by you
and the Company. The failure of either party to enforce any of the
provisions of this Letter Agreement shall in no way be construed to be a
waiver of any such provision. No waiver of any breach of this Letter
Agreement shall be held to be a waiver of any other or subsequent
breach.
	 
	14.	 	Assignment. This Letter Agreement is personal to you. You shall
not assign this Letter Agreement or any of your rights and/or obligations
under this Letter Agreement to any other person. The Company may, without
your consent, assign this Letter Agreement to any successor to its
business.
	 
	15.	 	Dispute Resolution. To benefit mutually from the time and cost
savings of arbitration over the delay and expense of the use of the
federal and state court systems, all disputes involving this Letter
Agreement (except, at the election of the Company, for injunctive relief
with respect to disputes arising out of an alleged breach or threatened
breach of the covenants contained in paragraph 8), including claims of
violations of federal or state discrimination statutes or public policy,
shall be resolved pursuant to binding arbitration in New York, New York.
In the event of a dispute, a written request for arbitration shall be
submitted to the New York office of the American Arbitration Association.
The award of the arbitrators shall be final and binding and judgment upon
the award may be entered in any court having jurisdiction thereof. Except
as otherwise provided above, this procedure shall be the exclusive
means of settling any disputes that may arise under this Letter Agreement.
All fees and expenses of the arbitrators and all other expenses of the
arbitration, except for attorneys’ fees and witness expenses, shall be
shared equally by you and the Company. Each party shall bear its own
witness expenses and attorneys’ fees.
	 
	16.	 	Survival. Notwithstanding anything contained herein to the
contrary, the provisions of paragraphs 8, 9 and 15 shall survive
termination of your employment with the Company and its subsidiaries.
	 
	17.	 	Entire Agreement. This Letter Agreement supersedes all previous
and contemporaneous communications, agreements and understandings, whether
oral or written, between you, on the one hand, and the Company or any of
its Affiliates, on the other hand, and constitutes the sole and entire
agreement between you and the Company pertaining to the subject matter
hereof.
	 
	18.	 	Counterparts. This Letter Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become a binding agreement when one or more
counterparts have been signed by each party and delivered to the other
party.



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If the foregoing is acceptable to you, kindly sign and return to us one copy of
this letter.



	 	 	 
	 	Sincerely yours,
	 
	 	VIDEO NETWORK
COMMUNICATIONS INC.
	 
	 	By:	
    
/s/ Carl Muscari
	 	 	


Name: Carl Muscari

           
Chairman & CEO




	 
	AGREED TO AND ACCEPTED BY:
	 
	/s/ Roger Booker



Roger Booker




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