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EXHIBIT 10.3.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Employment Agreement") is entered
into as of the 29th day of July, 1997 between XXXX XXXXX (the "Employee") and
TRANSCRYPT INTERNATIONAL, INC., a Delaware corporation, and its affiliates (the
"Company"). This Employment Agreement is contingent upon closing the X. X.
Xxxxxxx Company acquisition by Transcrypt International, Inc. no later than ten
(10) days after signing this Employment Agreement. Upon the date of closing,
this Employment Agreement will become effective and your Severance Agreement
with X. X. Xxxxxxx Company, dated December 20, 1996, and further amended on
January 2, 1997 and Escrow Agreement dated January 2, 1997, will terminate.
WHEREAS, the Company wishes to employ the Employee on the terms
set forth in this Employment Agreement, and the Employee wishes to accept such
employment on such terms.
NOW THEREFORE, in consideration of the foregoing recitals and
covenants set forth herein, the parties hereto hereby agree as follows:
Section 1. Employment and Term. The Company hereby employs the
Employee, and the Employee hereby accepts employment, on the terms of this
Employment Agreement, commencing as of the date of closing between X. X. Xxxxxxx
Company and Transcrypt International, Inc. and continuing until the first
anniversary of such date (the "Expiration Date"), unless terminated earlier in
accordance with the provisions of Section 5 hereof.
Section 2. Duties and Authority. The Employee's duties shall be
as Vice President International with responsibility for all International Sales
of the Company's products and other duties as determined by the Chief Executive
Officer of the Company or such other officer of the Company designated by the
Chief Executive Officer or the Board of Directors or a designated committee
thereof (the Board of Directors or committee being collectively referred to
herein as the "Board of Directors").
Section 3. Compensation.
(a) Base Salary. The Employee will receive a base salary
during the term of this Employment Agreement of $150,000 per year ("Base
Salary"), which shall be payable in approximately equal bi-weekly installments.
Base salary will be subject to annual review and can be increased with
concurrence of the Board of Directors.
(b) Commission. The Employee shall receive a commission in
an amount equal to 1/4 percent on quarterly International sales if Company's
quarterly plan is achieved.
(c) Additional Benefits. The Employee will also receive
such additional employee benefits as defined in and by the X. X. Xxxxxxx
benefits and medical plans, including paid
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vacations, pension benefits, qualified profit-sharing plans, employees group
insurance and disability insurance until such time as the two Companies (EFJ and
TRII) plans are blended together.
(d) Withholdings. All payments made to the Employee
pursuant to this Employment Agreement shall be reduced by all required federal,
state and local withholdings for taxes and similar charges and by all
contributions or payments required to be made by the Employee in connection with
any employee benefit plan maintained by the Company.
Section 4. Reimbursement for Expenses. The Employee may from time
to time incur certain expenses on behalf of the Company for travel, promotion,
telephone, entertainment and similar items. The Company will reimburse the
Employee for all ordinary, necessary and reasonable amounts of such expenses
incurred by the Employee, which amounts shall be payable promptly upon receipt
of reasonable written documentation signed by the Employee itemizing such
expenses.
International business class air travel is approved for Employee.
Section 5. Early Termination.
(a) Basis for Early Termination. This Employment Agreement
shall terminate prior to the Expiration Date upon the first to occur of:
(i) the determination by the Board of Directors
that the Employee has become disabled and shall not be able to
continue his service to the Company; or
(ii) the Employee's death; or
(iii) a determination by the Board of Directors
that the Employee has engaged or participated in (i) theft or
embezzlement, or attempted theft or embezzlement, of money or
property of the Company or any subsidiary, the perpetration or
attempted perpetration of fraud on the Company or any subsidiary,
or the unauthorized appropriation of, or attempt to
misappropriate, any tangible or intangible assets or property of
the Company or any subsidiary, (ii) or that the Employee has been
convicted of a crime the commission of which results in injury to
the Company or any subsidiary, or that the Employee has
materially violated any restriction on the disclosure or use of
confidential information of the Company or any subsidiary, or on
competition with the Company or any subsidiary, or any of their
businesses then conducted or planned to be conducted, in each
case as determined in the reasonable judgment of the Board of
Directors; or
(iv) a determination by the Board of Directors, in
its sole and absolute discretion, that is in the best interest of
the Company to terminate Employee's employment with the Company.
(b) Effective Date of Termination. The effective date of
termination of this Employment Agreement shall be the first to occur of either
the Expiration Date, the date of
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Employee's death or the date of any determination by the Board of Directors
pursuant to Section 5(a)(i), 5(a)(iii) or 5(a)(iv) hereof (the "Effective Date
of Termination").
(c) Severance Payment. Upon ten (10) days from the
effective date of this Employment Agreement, the Company will pay to Employee
the first half of your EFJ Parachute payment in the amount of $100,000. The
second half of your EFJ Parachute payment in the amount of $100,000 will be
payable on the first anniversary date of your employment with the Company. In
the event of termination pursuant to this Section 5 or the occurrence of the
Expiration Date, Employee or Employee's estate shall, on and after the Effective
Date of Termination, be entitled to no further payments or benefits under this
Employment Agreement except the payment of Base Salary and benefits accrued but
unpaid as of the Effective Date of Termination. However, if Employee is
terminated within the first year for any reason except for cause as defined in
Section 5(a)(iii), the Employee is entitled to the second half of the EFJ
Parachute payment of $100,000.
Section 6. Restrictive Covenant. The Noncompete Agreement
attached hereto as Exhibit A, previously entered into between the Company and
the Employee, shall remain in full force and effect.
Section 7. Amendments. No change, modification, waiver,
discharge, amendment or addition to this Employment Agreement shall be binding
unless it is in writing and signed by the Company and the Employee.
Section 8. Entire Agreement. This Employment Agreement, together
with the Noncompete Agreement attached hereto as Exhibit A, contain the entire
understanding and agreement between the Company and the Employee, and supersedes
any prior agreements between them, pertaining to the Employee's employment with
the Company. There are no representations, warranties, promises, covenants or
understandings between the Company and the Employee with respect to such
employment other than those expressly set forth in this Employment Agreement.
This Employment Agreement takes precedence over other conflicting agreements
with Employee.
Section 9. Governing Laws. This Employment Agreement shall be
governed by the substantive laws of the State of Nebraska.
Section 10. Nonassignability; Successors. The obligations of the
Employee under this Employment Agreement are not assignable by him. Except as
provided in the immediately preceding sentence, this Employment Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
successors.
Section 11. Notices. Any notice required to be given in writing
by any party to this Employment Agreement may be personally delivered or mailed
by registered or certified mail to the last known address of the party to be
notified. Any such notice personally delivered shall be effective upon delivery
and any such notice mailed shall be effective four business days after the
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date of mailing, by registered or certified mail with postage prepaid to the
last know address of the party to be notified.
Section 12. Severability. The invalidity or unenforceability of
any particular provision of this Employment Agreement shall not affect the other
provisions of this Employment Agreement, and this Employment Agreement shall be
construed in all respects as if such invalid or unenforceable provision were
omitted.
Section 13. Headings. The section and other headings contained
in this Employment Agreement are for reference purposes only and shall not
affect the interpretation of this Employment Agreement.
Section 14. Construction. Whenever required by the context,
references to the singular shall include the plural, and the masculine gender
shall include the feminine gender.
IN WITNESS WHEREOF, the Company has caused this Employment
Agreement to be executed on its behalf and the Employee has signed his name
hereto, effective as of the date first written above.
TRANSCRYPT INTERNATIONAL, INC.,
a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxx
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Printed Name
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Its
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/s/ Xxxx Xxxxx
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Xxxx Xxxxx, Employee
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EXHIBIT A
NONCOMPETE AGREEMENT
TRANSCRYPT INTERNATIONAL, INC., a Nebraska corporation (the "Company";
for the purposes of this Noncompete Agreement, the term "Company" shall include
affiliates of Transcrypt International, Inc.) and Xxxx Xxxxx ("Employee") agree
as follows:
1. In consideration of the Company employing Employee as set forth in
that certain Employment Agreement (the "Agreement") of even date hereto executed
by and among the Company and Employee, Employee hereby agrees to adhere to the
following terms and conditions:
Employee expressly covenants and agrees that at no time during the
effective term of the Agreement will it for itself or on behalf of any
other person, partnership, firm, association or corporation in any
territory in which the Employee is acting pursuant to the Agreement (1)
open or operate a business which would result in the solicitation of
customers for whom Employee served at Transcrypt, (2) act as an
employee, agent, advisor or consultant of any then existing competitor
of the company if resulting in the solicitation of customers whom
Employee served at Transcrypt, (3) solicit or accept business from any
of the Company's competitors which serves customers previously served by
Employee while employed at Transcrypt, unless authorized by the Company,
(4) divert any business from the Company by influencing or attempting to
influence any present customers of the Company for whom Employee served
at Transcrypt or (5) attempt to attract any supplier away from the
Company or use its information regarding the Company's suppliers in any
way which would detrimentally affect the Company. Employee further
covenants and agrees that for two years following the termination of the
Agreement, whether such termination is voluntary or involuntary, it will
not for itself or on behalf of any other person, partnership, firm,
association or corporation in any territory in which it acted pursuant
to the Agreement during the 12 months immediately prior to the
Agreement's termination (1) divert any secure communications business
from the Company by influencing or attempting to influence any present
secured communication product customers of the Company with whom
Employee had been in contact while employed at Transcrypt, (2) attempt
to attract any supplier away from the Company with whom Employee had
contact while employed at Transcrypt or use his information regarding
the Company's suppliers in any way which would detrimentally affect the
Company, or (3) go to work for any direct competitor of Transcrypt
secured communication products such as Selectone, MXCom, Midian which
would result in the solicitation of customers for whom Employee had been
in contact while employed at Transcrypt. Wireless communication
companies engaged in the manufacturing or distribution of voice
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and data communications products such as Motorola, Ericsson, SMR Direct
and Data Radio are not included in this group.
2. By signing this Agreement, Employee expressly acknowledges that the
territorial limitations, duration and scope of this Agreement are fair and
reasonable. This Noncompete Agreement shall survive the termination of the
Agreement.
3. Employee further agrees that the Company shall be entitled to
maintain proceedings in any court of competent jurisdiction, either at law or in
equity, for any breach of this Agreement by Employee to enforce the specific
performance of this Agreement and/or to obtain damages for any breach thereof,
and without regard to any or all remedies sought by the Company, the Company
shall be entitled to recover reasonable attorney's fees incurred in enforcing
this Agreement.
4. This Agreement supersedes any prior Agreement between the Employee
and the Company pertaining to the subject hereof. In the event that any portion
of this Agreement is declared invalid or illegal by final judgment of any court
or competent jurisdiction, the remainder of this Agreement shall remain in full
force and effect, notwithstanding the invalidity or illegality of the other
portion.
5. This Agreement shall be governed by the laws of the State of
Nebraska.
6. This Agreement may be executed in duplicate counterparts, each of
which shall be deemed to be an original, and all of which shall constitute one
in the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the 30th day of July, 1997.
TRANSCRYPT INTERNATIONAL, INC.,
a Nebraska corporation
By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its President
/s/ Xxxx Xxxxx
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Xxxx Xxxxx, Employee
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