Exhibit 10.16
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of
December 14, 2004 between White Electronic Designs Corporation, an Indiana
Corporation (the "Company") and Xxxxx X. Xxxxxxxxxx ("Executive").
WHEREAS, the Company desires to continue to employ Executive and
Executive desires to continue to be employed by the Company on the terms
contained herein;
NOW ,THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. TERM OF EMPLOYMENT. The term of this Agreement shall extend
from the date hereof (the "Commencement Date") until the third anniversary of
the Commencement Date; provided, however, that the term of this Agreement shall
automatically be extended for two additional years upon expiration of the term
hereof and upon expiration of each successive term hereof unless, not less than
90 days prior to any such expiration, either party shall have given notice to
the other that it does not wish to extend this Agreement. The term of this
Agreement shall be subject to termination as provided in Section 6 and may
sometimes be referred to herein as the "Period of Employment."
2. POSITION AND DUTIES. During the Period of Employment,
Executive shall serve as the President and Chief Executive Officer and Chairman
of the Board of Directors of the Company (the "Board"), and shall have
supervision and control over and responsibility for the business and affairs of
the Company and shall have such other powers and duties as may from time to time
be prescribed by the Board, provided that such duties are consistent with
Executive's position or other positions that he may hold from time to time.
Executive shall devote his full working time and efforts to the business and
affairs of the Company. Notwithstanding the foregoing, Executive may serve on
other boards of directors, as long as such activities do not materially
interfere with Executive's performance of his duties to the Company as provided
in this Agreement.
3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. Executive's annual base salary shall be
$500,000.00, which shall be effective beginning on the Commencement Date.
Executive's base salary shall be subject to increase at the discretion of the
Compensation Committee of the Board (the "Compensation Committee") based on its
annual review. The base salary in effect at any given time is referred to herein
as "Base Salary." The Base Salary shall be payable in substantially equal
bi-weekly installments.
(b) BONUS. Executive shall be eligible to receive cash
incentive compensation equal to up to 300% of his Base Salary ("Bonus") as
determined on an annual basis by the Compensation Committee in its sole
discretion.
(c) LIFE INSURANCE. The Company shall at its expense
provide Executive with $ 1,000,000 of term life insurance, the death benefits
from which shall be payable to one or more beneficiaries designated by
Executive.
(d) AUTO ALLOWANCE. The Company shall pay to Executive a
monthly automobile allowance equal to $1,000.
(e) CLUB MEMBERSHIP. The Company shall pay all regular
and special membership fees and dues (including any initiation fees) for
Executive's membership in a club of his choice, but reasonably acceptable to the
Compensation Committee.
(f) EXPENSES. Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by him in performing
services hereunder during the Period of Employment, in accordance with the
policies and procedures then in effect and established by the Company for its
senior executive officers.
(g) OTHER BENEFITS. During the Period of Employment
Executive shall be entitled to continue to participate in or receive benefits
under all of the Company's Executive Benefit Plans in effect on the date hereof,
or under plans or arrangements that provide Executive with benefits at least
substantially equivalent to those provided under such Executive Benefit Plans.
As used herein, the term "Employee Benefit Plans" includes, without limitation,
each savings and profit- sharing plan; stock option plan; medical insurance
plan; dental insurance plan; disability plan; and health and accident plan or
arrangements established and maintained by the Company on the date hereof for
senior executives of the Company. To the extent that the scope or nature of
benefits described in this section is determined under the policies of the
Company based in whole or in part on the seniority or tenure of an employee's
service, Executive shall be deemed to have a tenure with the Company equal to
the actual time of Executive's service with the Company. During the Period of
Employment, Executive shall be entitled to participate in or receive benefits
under any employee benefit plan or arrangement which may, in the future, be made
available by the Company to its executives subject to and on a basis consistent
with the terms, conditions and overall administration of such plan or
arrangement. All benefits to be received by Executive pursuant to Sections 3(c)
- (f), inclusive, under this Agreement shall be made on an aftertax basis, such
that the Company shall compensate Executive for any federal or state tax payable
with respect to such benefit as well as any such tax payable with respect to the
compensation called for by this sentence.
(h) VACATIONS. Executive shall be entitled to six (6)
paid weeks of vacation in each calendar year. Executive shall also be entitled
to all paid holidays given by the Company to its executives.
4. CONFIDENTIAL INFORMATION. Executive acknowledges that in the
course of his employment with the Company, he has been allowed to become, and
will continue to be allowed to become, acquainted with the Company's business
affairs, information, trade secrets, and other matters which are of a
proprietary or confidential nature, including but not limited to the Company's
and its affiliates' operations, business opportunities, price and cost
information, finance, customer information, business plans, various sales
techniques, manuals, letters, notebooks, procedures, reports, products,
processes, services, and other confidential information
2
and knowledge (collectively the "Confidential Information") concerning the
Company's and its affiliates' business. Executive understands and acknowledges
that the Confidential Information is confidential, and he agrees not to disclose
such Confidential Information to anyone outside the Company except to the extent
that (i) Executive deems such disclosure or use reasonably necessary or
appropriate in connection with performing his duties on behalf of the Company;
(ii) Executive is required by order of a court of competent jurisdiction (by
subpoena or similar process) to disclose or discuss any Confidential
Information, provided that in such case, Executive shall promptly inform the
Company of such event, shall cooperate with the Company in attempting to obtain
a protective order or to otherwise restrict such disclosure, and shall only
disclose Confidential Information to the minimum extent necessary to comply with
any such court order; (iii) such Confidential Information becomes generally
known to and available for use in the Company's industry, other than as a result
of any action or inaction by Executive; or (iv) such information has been
published in a form generally available to the public prior to the date
Executive proposes to disclose or use such information. Executive agrees this
covenant shall survive this Agreement and continue to be binding upon Executive
after the expiration or termination of this Agreement. Executive further agrees
that he will not during employment and/or at any time thereafter use such
Confidential Information in competing, directly or indirectly, with the Company.
At such time as Executive shall cease to be employed by the Company, he will
immediately turn over to the Company all Confidential Information, including
papers, documents, writings, electronically stored information, other property,
and all copies of them provided to or created by him during the course of his
employment with the Company.
5. TERMINATION. Executive's employment hereunder may be
terminated without any breach of this Agreement under the following
circumstances:
(a) DEATH. Executive's employment hereunder shall
terminate upon his death.
(b) DISABILITY. If, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have been absent from his
duties hereunder on a full- time basis for one hundred eighty (180) calendar
days in the aggregate in any twelve (12) month period, the Company may terminate
Executive's employment hereunder.
(c) TERMINATION BY COMPANY FOR CAUSE. Company may
terminate the employment of Executive for cause at any time upon written notice
to Executive specifying the cause for termination. For purposes of this Section,
"for cause" shall mean discharge resulting from a determination by the Company
that the Executive has (i) been convicted of a criminal offense involving
dishonesty, fraud, theft, embezzlement, breach of trust or moral turpitude; (ii)
performed an act or failed to act which, if he were prosecuted and convicted,
would constitute a crime or offense involving money or property of the Company;
(iii) violated the provisions of Section 4 pertaining to confidential
information; or (iv) willfully refuses to perform the duties reasonably assigned
to Executive and consistent with his status as President and Chief Executive
Officer and Chairman of the Board of the Company, provided however that this
Section 5(c)(iv) shall not apply following a Change in Control as defined in
Section 5(f).
3
(d) TERMINATION BY COMPANY WITHOUT CAUSE. At any time
during the Period of Employment, the Company may terminate Executive's
employment hereunder without Cause if such termination is approved by a majority
of the Board at a meeting of the Board called and held for such purpose. Any
termination by the Company of Executive's employment under this Agreement which
does not constitute a termination for Cause under Section 5(c) or result from
the death or disability of the Executive under Section 5(a) or (b) shall be
deemed a termination without Cause. If the Company provides notice to Executive
under Section 1 that it does not wish to extend the Period of Employment, such
action shall also be deemed a termination without Cause.
(e) TERMINATION BY EXECUTIVE WITHOUT CAUSE. At any time
during the Period of Employment, Executive may terminate his employment
hereunder for any reason. If Executive provides notice to the Company under
Section 1 that he does not wish to extend the Period of Employment, such action
shall be deemed a voluntary termination by Executive.
(f) TERMINATION OF EXECUTIVE FOLLOWING A CHANGE IN
CONTROL. In the event that a Change in Control occurs when the remaining term of
this Agreement is less than eighteen (18) months, then this Agreement shall be
automatically renewed for a period of eighteen (18) months following the
effective date of the Change in Control. For purposes of this Agreement, a
"Change in Control" shall mean: any sale of all or substantially all of the
assets of Company; or merger or consolidation involving Company, unless the
stockholders of Company receive in the transaction, with respect to their stock
in Company, stock or other securities representing a majority in voting interest
of the acquiring entity's equity securities; or any sale of a majority voting
interest of the outstanding stock of Company by the holders thereof in a single
transaction or series of related transactions. For a period of eighteen (18)
months following the effective date of a Change in Control, the Executive may
terminate the Agreement by written notice to Company's Board of Directors (or
its successor) subsequent to the occurrence of any of the following events:
(i) Notice of termination or a material change
in the nature or scope of Executive's responsibilities, title, authority,
reporting relationship, powers, functions or duties from the responsibilities,
title, authority, reporting relationship, powers, functions or duties exercised
by the Executive immediately prior to the Change in Control;
(ii) A decrease in the total annual compensation
or benefits payable to Executive other than as a result of a decrease in
incentive-based compensation payable to the Executive and to all other executive
officers of Company on the basis of Company's financial performance;
(iii) A requirement imposed by Company that
Executive relocate to an office that is more than fifty (50) miles distant from
the office at which he is employed or the borne at which he resides immediately
prior to the Change in Control or an increase in Executive's business travel; or
(iv) Failure of Company's successor to assume its
obligations hereunder following a Change in Control.
4
(g) NOTICE OF TERMINATION. Except for termination as
specified in Section 5(a), any termination of Executive's employment by the
Company or any such termination by Executive shall be communicated by written
Notice of Termination to the other party hereto. For purposes of this Agreement,
a "Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(h) DATE OF TERMINATION. "Date of Termination" shall
mean: (A) if Executive's employment is terminated by his death, the date of his
death; (B) if Executive's employment is terminated on account of disability
under Section 5(b) or by the Company for Cause under Section 5(c), the date on
which Notice of Termination is given; and (C) if Executive's employment is
terminated by the Company under Section 5(d), or terminated by the Executive
under Section 5(e), thirty (30) days after the date on which a Notice of
Termination is given.
6. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) DEATH OF EXECUTIVE. If Executive's employment
terminates by reason of his death, the Company shall, within ninety (90) days of
death, pay in a lump sum amount to such person as Executive shall have most
recently designated in a notice filed with the Company or, if no such person is
designated, to Executive's estate, Executive's unpaid Base Salary and Pro Rata
Bonus (as defined in Section 6(g) below) to the date of his death. Upon the
death of Executive, all unvested stock options shall immediately vest in
Executive's estate or other legal representatives and become exercisable, and
Executive's estate or other legal representatives shall have the remaining
option term or twelve months, whichever is longer, to exercise all stock options
granted to Executive. For a period of one (1) year following the Date of
Termination, the Company shall pay such health insurance premiums as may be
necessary to allow Executive's spouse and dependents to receive health insurance
coverage substantially similar to coverage they received prior to the Date of
Termination. Such payments, in the aggregate, shall fully discharge the
Company's obligations hereunder.
(b) DISABILITY OF EXECUTIVE. During any period that
Executive fails to perform his duties hereunder as a result of incapacity due to
physical or mental illness, Executive shall continue to receive his Base Salary
and Pro Rata Bonus until Executive's employment is terminated due to disability
in accordance with Section 5(b) or until Executive terminates his employment in
accordance with Section 5(e), whichever first occurs. Following such
termination, Executive may receive benefits under the Company's long- term
disability plan subject to the terms and conditions thereof. Upon the Date of
Termination, all unvested stock options shall immediately vest and become
exercisable and Executive shall have the remaining option term or twelve months,
whichever is longer, to exercise all stock options granted to Executive. For a
period of one (1) year following the Date of Termination, the Company shall pay
such health insurance premiums as may be necessary to allow Executive and
Executive's spouse and dependents to receive health insurance coverage
substantially similar to coverage they received prior to the Date of
Termination.
(c) TERMINATION BY EXECUTIVE WITHOUT CAUSE. If
Executive's employment is terminated by Executive other than for a Change in
Control as provided in Section 5(f), then the Company shall, through the Date of
Termination, pay Executive his unpaid
5
Base Salary at the rate in effect at the time Notice of Termination is given.
Thereafter, the Company shall have no further obligations to Executive except as
otherwise expressly provided under this Agreement, provided any such termination
shall not adversely affect or alter Executive's rights under any employee
benefit plan of the Company in which Executive, at the Date of Termination, has
a vested interest, unless otherwise provided in such employee benefit plan or
any agreement or other instrument attendant thereto. In addition, all vested but
unexercised stock options held by executive as of the Date of Termination must
be exercised by Executive within twelve (12) months following the Date of
Termination or by the end of the option term, if longer.
(d) TERMINATION OF EXECUTIVE FOLLOWING A CHANGE IN
CONTROL. If Executive terminates his employment for a Change in Control as
provided in Section 5(f), Executive shall be entitled to the following benefits:
(i) SEVERANCE PAYMENT. The Company will pay
Executive a single, lump sum "Severance Payment" equal to three (3) times the
sum of Executive's total highest annual Base Salary, and highest annual
Bonus/Incentive Compensation from White Electronic Designs. In the event that
any severance payments made would be subjected to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, the Company would
be required to "gross up" the Executive's compensation for excise taxes and any
federal, state and local income taxes related to any excise tax imposed.
(ii) BENEFIT CONTINUATION. The Company will
continue benefit contributions (medical, dental, disability and life) and all
compensation benefits set forth in Section 3 hereof for the remaining term of
this agreement, as such term may therefore have been extended in accordance with
Section 1 hereof, or eighteen (18) months whichever is greater.
(iii) STOCK OPTIONS. Upon the Date of the
Termination, all unvested stock options shall immediately vest and become
exercisable and Executive shall have the remaining option term or eighteen
months whichever is greater, to exercise all stock options granted to the
Executive.
(iv) OUTPLACEMENT ASSISTANCE. The Company will
provide executive-level outplacement services to the Executive at the
outplacement provider of his choice for a period not to exceed eighteen (18)
months in the maximum amount of $50,000.
(v) ATTORNEY FEES. The Company will reimburse
Executive for all reasonable attorneys' fees incurred in connection with
enforcing the terms of this Agreement following termination of employment in the
maximum amount of $50,000.
(e) TERMINATION FOR CAUSE. If Executive's employment is
terminated by the Company for Cause as provided in Section 5(c), then the
Company shall, through the Date of Termination, pay Executive his unpaid Base
Salary. Thereafter, the Company shall have no further obligations to Executive
except as otherwise expressly provided under this Agreement, provided any such
termination shall not adversely affect or alter Executive's rights under any
employee benefit plan of the Company in which Executive, at the Date of
Termination, has a vested interest, unless otherwise provided in such employee
benefit plan or any agreement or
6
other instrument attendant thereto. In addition, all unvested stock options held
by Executive as of the Date of Termination shall immediately terminate and be of
no further force and effect. In addition, all vested but unexercised stock
options held by Executive as of the Date of Termination must be exercised by
Executive within six (6) months following the Date of Termination or by the end
of the option term, if earlier.
(f) PRO RATA BONUS. In determining Executive's Pro Rata
Bonus pursuant to Sections 6(a) or (b) hereof, the amount shall be equal to the
product of (i) a fraction, the numerator of which is the number of days elapsed
in the year Executive's employment with the Company is terminated and the
denominator is 365, multiplied by (ii) the Bonus paid to Executive with respect
to the year immediately preceding the year in which Executive's employment with
the Company is terminated.
(g) TERMINATION BY COMPANY WITHOUT CAUSE. If the Company
terminates the Executive's employment without Cause in accordance with Section
5(d), it shall, upon the termination of Executive's employment, pay Executive a
Severance Payment equal to two (2) times the sum of Executive's total highest
annual Base Salary, and highest annual Bonus/Incentive Compensation from White
Electronic Designs, and provide the other benefits set forth in Sections
6(d)(ii) to (v). The Company shall have no further obligations to Executive
except for any amounts earned by, or accrued for, Executive under any employee
benefit plans in which the Executive is then a participant, earned and unpaid
salary and accrued and unused vacation pay and any rights of Executive under any
bonus or stock option agreement, which right has been earned by Executive at the
time of such termination pursuant to the terms of such plan or agreement.
7. NON-SOLICITATION. Executive agrees, for a period of two years
after the expiration or termination of this Agreement, he will not employ or
directly or indirectly solicit, or cause the solicitation of, any employees of
the Company who are in the employ of the Company on the Date of Termination for
employment by others.
8. NOTICE. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
At his home address as shown in the Company's personnel records;
if to the Company:
White Electronic Designs Corporation, 0000 Xxxx Xxxxxxxxxx,
Xxxxxxx, Xxxxxxx 00000, Attention: Board of Directors or to such
other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
7
9. SUCCESSOR TO COMPANY. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company expressly to
assume and agree to perform this Agreement to the same extent that the Company
would be required to perform it if no succession had taken place. Failure of the
Company to obtain an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
constitute Good Reason if the Executive elects to terminate employment.
10. VALIDITY. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in full force and
effect. The invalid portion of this Agreement, if any, shall be modified by any
court having jurisdiction to the extent necessary to render such portion
enforceable.
11. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
12. ARBITRATION; OTHER DISPUTES. In the event of any dispute or
controversy arising under or in connection with this Agreement, the parties
shall first promptly try in good faith to settle such dispute or controversy by
mediation under the applicable rules of the American Arbitration Association
before resorting to arbitration. In the event such dispute or controversy
remains unresolved in whole or in part for a period of thirty (30) days after it
arises, the parties will settle any remaining dispute or controversy exclusively
by arbitration in Phoenix, Arizona in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
Section 4 hereof. Furthermore, should a dispute occur concerning Executive's
mental or physical capacity as described in Section 5(b) or 6(b), a doctor
selected by Executive and a doctor selected by the Company shall be entitled to
examine Executive. If the opinion of the Company's doctor and Executive's doctor
conflict, the Company's doctor and Executive's doctor shall together agree upon
a third doctor, whose opinion shall be binding.
13. THIRD-PARTY AGREEMENTS AND RIGHTS. Executive represents to the
Company that Executive's execution of this Agreement, Executive's employment
with the Company and the performance of Executive's proposed duties for the
Company will not violate any obligations Executive may have to any employer or
other party, and Executive will not bring to the premises of the Company any
copies or other tangible embodiments of non-public information belonging to or
obtained from any such previous employment or other party.
14. LITIGATION AND REGULATORY COOPERATION. During and after
Executive's employment, Executive shall reasonably cooperate with the Company in
the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Company which relate to
events or occurrences that transpired while Executive was employed by the
Company; provided, however, that such cooperation shall not materially and
adversely affect Executive or expose Executive to an increased probability of
civil
8
or criminal litigation. Executive's cooperation in connection with such claims
or actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis (to be derived based
on his Base Salary in effect at the Date of Termination) for requested
litigation and regulatory cooperation that occurs after his termination of
employment, and reimburse Executive for all costs and expenses incurred in
connection with his performance under this Section 14, including, but not
limited to, reasonable attorneys' fees and costs.
15. MISCELLANEOUS. No provisions of this Agreement may be
modified, waived, or discharged unless such waiver, modification, or discharge
is agreed to in writing and signed by Executive and such officer of the Company
as may be specifically designated by the Board. No waiver by either party hereto
of any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Arizona (without regard to principles of
conflicts of laws).
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the date and year first above written.
WHITE ELECTRONIC DESIGNS CORPORATION.
BY: Xxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
CHAIRMAN OF COMPENSATION COMMITTEE White Electronic Design Corporation
EXECUTIVE
/s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxxx
9
