1
Exhibit 10.49
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of this
17th day of October, 1997, by and between The O'Gara Company, an Ohio
corporation (the "Company"), and Xxxxxxxxx X. Xxxxxxxx (the "Executive").
WHEREAS, the Executive and the Company desire to embody in
this Agreement the terms and conditions of Executive's employment by the
Company;
NOW, THEREFORE, in consideration of the premises and mutual
promises contained in this Agreement, including the revised compensation paid to
executive, the parties hereby agree:
ARTICLE I
Employment, Duties and Responsibilities
1.01. Employment. The Company shall employ Executive as Chief
Financial Officer. Executive hereby accepts such employment. Executive agrees to
devote his full business time and best efforts to promote the interests of the
Company.
1.02. Duties and Responsibilities. Executive shall have such
duties and responsibilities as are consistent with his position and shall
perform such services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors of the Company, the Chief
Executive Officer of the Company, or any other officer of the Company in a
position superior to Executive.
ARTICLE II
Term
2.01. Term. The term of Executive's employment under this
Agreement (the "Term") shall commence on the Effective Time (as defined in the
Plan and Agreement to Merge VDE, Inc. with and into Xxxxx Holdings, Inc., dated
as of August 8, 1997), and shall continue for a period of three (3) years until
November 30, 2000, unless sooner terminated pursuant to Article V hereof.
Thereafter, the Term shall continue on a monthly basis unless terminated by
either party upon one month's prior written notice.
ARTICLE III
Compensation
3.01. Salary, Bonuses and Benefits. As compensation and
consideration for the performance by Executive of his obligations to the Company
under this Agreement, Executive shall be entitled to the compensation and
benefits described in the attached Exhibit A (subject, in each case, to the
provisions of ARTICLE V hereof).
2
3.02. Expenses. The Company will reimburse Executive for
reasonable business-related expenses incurred by him in connection with the
performance of his duties hereunder during the Term, subject, however, to the
Company's policies relating to business-related expenses as in effect from time
to time during the Term.
ARTICLE IV
4.01. Exclusivity, Etc. Executive agrees to perform his
duties, responsibilities and obligations hereunder efficiently and to the best
of his ability. Executive agrees that he will devote his entire working time,
care and attention and best efforts to such duties, responsibilities and
obligations with the Company throughout the Term. Executive agrees that all of
his activities as an employee of the Company shall be in conformity with all
policies, rules and regulations and directions of the Company not inconsistent
with this Agreement.
4.02. Other Business Ventures; Noncompetition.
(a) The term "Confidential Information", as employed in this
Agreement, means (i) any object, material, device, substance, data, report,
record, forecast, interpretation or information, whether written or oral, not in
the public domain and relating to or reflecting any product, design, process,
procedure, formula, research, idea, invention, discovery, improvement,
equipment, scientific or technical information, method of production, business
plan, financial information, listing of names, addresses or telephone numbers,
trade secret and/or know how, and all matters pertaining thereto, of the Company
whether or not contained in any written document, which are or have been
directly or indirectly communicated to, acquired by, or learned by the Executive
as a result of his relationship (whether as an employee or otherwise) with the
Company and (ii) any analysis, compilation, note, study, sample, drawing,
sketch, computer program, computer file or other document, whether prepared by
or under the direction of the Company, the Executive or others, and all copies,
facsimiles, replicas, photographs, and reproductions thereof, which contain,
relate to, or reflect any of the aforementioned items.
(b) The Executive shall not, directly or indirectly, either
disclose any Confidential Information, except to the extent required in the
performance of his duties as an employee of the Company and then only at the
direction of the Company, or use any Confidential Information for the benefit of
himself or any person, firm, corporation, or association other than the Company,
either during the Term or thereafter. Nothing contained in this Agreement is
deemed to conflict with Ohio Revised Code SectionSection 1333.51 or 1333.81.
(c) All samples, drawings, sketches, documents and written
information of any kind reflecting any of the Confidential Information or
relating to the Company's business or products which come into the possession of
the Executive shall remain the sole property of the Company, and shall not be
copied, photocopied, reprinted or otherwise reproduced or disseminated by the
Executive except in the performance of his duties as an employee of the Company
and then only at the direction of the Company. Upon the earlier of the Company's
request therefor or the termination of the Executive's employment by the
Company, the Executive shall return all such samples, drawings, sketches,
documents and written information, and all copies, facsimiles, replicas,
photocopies, and reproductions of them, to the Company.
- 2 -
3
(d) The Executive hereby covenants and agrees to refrain,
during his employment by the Company and for a period of two (2) years after the
date of termination of the Executive's employment for Cause (as hereinafter
defined) or if the Executive terminates employment on his own volition, from
directly or indirectly owning any interest in or engaging in or performing any
services for any person, firm or corporation that directly or indirectly engages
in any business which competes with any aspect of the business of the Company,
wherever located, either as an individual on his own behalf, or as a partner,
employee or agent for any person or partnership, or as an employee, officer,
agent, director or shareholder of a corporation. The Executive will not at any
time during the period of the Executive's employment by the Company and for a
period of two (2) years thereafter induce or assist others to induce or attempt
to induce, in any manner, directly or indirectly, any employee, agent,
representative, customer or any other person or concern dealing with or in any
way associated with the Company to terminate or to modify in any other fashion
to the detriment of the Company such association with the Company. The Executive
represents that his experience and capabilities are such that the provisions of
this paragraph will not prevent him from earning a livelihood.
(e) The parties hereto agree that the Executive's agreements
contained in paragraph (b) through (d) of this Article relate to matters of
unique character and peculiar value impossible of replacement, that breach of
such agreements by the Executive will cause the Company great and irreparable
injury therefor, that the remedy at law for any breach of the agreements
contained in (b) through (d) will be inadequate and that the Company, in
addition to any other relief available to it, shall be entitled to temporary
restraining orders and temporary and permanent injunctive relief or other
equitable relief without the necessity of proving actual damage or of providing
bond so as to prevent a breach of any of the agreements contained in (b) through
(d) of this Article and to secure the enforcement thereof.
ARTICLE V
Termination
5.01. Termination by the Company. The Company shall have the
right to terminate the Executive's employment at any time, with or without
"Cause." For purposes of this Agreement, "Cause" shall mean (i) substantial
failure by the Executive to perform his duties as described in Article I of this
Agreement, (ii) a breach by the Executive of any of the other terms and
conditions of this Agreement, (iii) conduct grossly insubordinate or disloyal to
the Company, or (iv) pleading no contest or guilty to a felony charge or being
convicted of a felony.
5.02. Death. In the event Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of Executive's death.
5.03. Disability. In the event that Executive shall suffer a
disability which shall have prevented him from performing satisfactorily his
obligations hereunder for a period of at least 90 consecutive days, or 180
non-consecutive days within any 365 day period, the Company shall have the right
to terminate Executive's employment, such termination to be effective upon the
giving of notice thereof to Executive in accordance with Section 6.03 hereof.
- 3 -
4
5.04. Effect of Termination. (a) In the event of termination
of Executive's employment for any reason, the Company shall pay to executive (or
his beneficiary in the event of his death) any base salary or other compensation
in accordance with the normal pay practices of the Company upon a termination of
employees for similar reasons.
(b) In the event of termination of Executive's employment (i)
by the Company for Cause, (ii) by Executive for any reason, (iii) because of
Executive's death, or (iv) pursuant to Section 5.03, because of Executive's
disability, neither the Executive nor any beneficiary of Executive shall be
entitled to any further compensation other than the amounts described in Section
5.04(a) hereof.
(c) In the event of termination of Executive's employment by
the Company other than for Cause, the Company shall pay Executive, in addition
to the amounts described in Section 5.04(a) hereof, the greater of (i) an amount
equal to the value of the continued payment of Executive's base salary for the
remainder of the Term (excluding any renewal periods), or (ii) an amount equal
to one (1) year of Executive's base salary at the time of termination. Such
amount shall be payable, at the discretion of the Company, either (A) in a lump
sum or (B) in equal monthly installments.
(d) In the event that the Company fails to renew the terms of
this Agreement for at least one year following the end of the Term, the Company
shall pay Executive an amount equal to one (1) year of Executive's base salary
at the time of termination. Such amount shall be payable, at the discretion of
the Company, either (A) in a lump sum or (B) in equal monthly installments.
ARTICLE VI
Miscellaneous
6.01. Mitigation: Offset. In the event that an amount becomes
payable to Executive pursuant to Section 5.04(c) above, such amount shall be
reduced, on a dollar-for-dollar basis, by (i) any outstanding amounts owed by
Executive to the Company and (ii) the amount of any compensation for services
earned by Executive during the remainder of the Term (if a severance payment is
due in accordance with Section 5.04(c)(i)) or during the one year period
following termination (if a severance payment is due in accordance with Sections
5.04 (c)(ii) or 5.04(d)), from any source, whether paid currently or deferred.
In such event, Executive shall cooperate with the Company and shall provide such
information to the Company as it may reasonably require.
6.02. Benefit of Agreement; Assignment; Beneficiary. (a) This
Agreement shall inure to the benefit of and be binding upon the Company and
their successors and assigns (but only to the extent the Agreement relates to
such entity), including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, the Executive and his personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die
- 4 -
5
while any amount would still be payable to the Executive hereunder if he had
continued to live, all such amounts shall be paid in accordance with the terms
of this Agreement to the Executive's beneficiary, devisee, legatee or other
designee, or if there is no such designee, to the Executive's estate.
(b) The Company shall require any successor (whether director
or indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
6.03 Notices. Any notice required or permitted hereunder shall
be in writing and shall be sufficiently given if personally delivered or if sent
by registered or certified mail, postage prepaid, with return receipt requested,
addressed: (a) in the case of the Company to the Chief Operating Officer; and
(b) in the case of Executive, to Executive's last known address as reflected in
the Company's records, or to such other address as Executive shall designate by
written notice to the Company. Any notice given hereunder shall be deemed to
have been given at the time of receipt thereof by the person to whom such notice
is given if personally delivered or at the time of mailing if sent by registered
or certified mail.
6.04. Entire Agreement; Amendment. This Agreement contains the
entire agreement of the parties hereto with respect to the terms and conditions
of Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
6.05. Waiver. The waiver of either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
6.06. Headings. The Article and Section headings herein are
for convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
6.07. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Ohio without reference to the principles of conflict of laws.
6.08. Agreement to Take Actions. Each party hereto shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.09. Venue and Jurisdiction. Executive shall bring any legal
action against the Company in either Xxxxxx County Court of Common Pleas, State
of Ohio, U.S.A. or in United States
- 5 -
0
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx of Ohio (Western Division). Executive will not
pursue legal action against the Company in any other judicial venue. Executive
submits to the jurisdiction of these courts and waives any claim of improper
venue, inconvenient forum or forum non conveniens. Notwithstanding the
foregoing, the Company may, at its sole election, pursue legal action against
Executive at any location it deems appropriate.
6.10. Survivorship. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
6.11. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect. If any provision of this Agreement is
held to be invalid, void or unenforceable, any court so holding shall substitute
a valid, enforceable provision that preserves, to the maximum lawful extent, the
terms and intent of this Agreement.
6.12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement effective as of the date first written above.
THE O'GARA COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
/s/ N.E. Paciotti
-----------------------
Executive
- 6 -
7
EXHIBIT A TO EMPLOYMENT AGREEMENT
Executive shall receive as compensation for his performance
under the attached Employment Agreement the following:
(a) Salary. The Company shall pay Executive a base salary
during the Term, payable in accordance with the normal payment procedures of the
Company and subject to such withholdings and other normal employee deductions as
may be required by law, at the annual rate of $275,000.00. The Board of
Directors of the Company shall review such compensation not less frequently than
annually during the Term.
(b) Annual Bonus. In addition to base salary, Executive shall
earn incentive compensation ("incentive compensation") and the Company shall pay
each fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with any such plan approved by the Compensation
Committee and the Board of Directors each fiscal year.
(c) Stock Awards. Executive shall be entitled to receive up to
fifty percent (50%) of any incentive compensation in the form of shares of stock
of The O'Gara Company, an Ohio corporation ("TOC"). In addition, Executive shall
be eligible for grants of stock options in TOC, which grants shall be made at
the discretion of the Compensation Committee of the Board of Directors of TOC in
an amount commensurate with Executive's position and responsibilities with the
Company.
(d) Benefits. Executive shall participate during the Term in
such pension, life insurance, health, disability and major medical insurance
plans, and in such other employee benefit plans and programs, for the benefit of
the employees of the Company, as may be maintained from time to time during the
Term, in the Company's discretion, in each case to the extent and in the manner
available to other officers of the Company and subject to the terms and
provisions of such plans or programs.
(e) Vacation. Executive shall be entitled to a paid vacation
of at least three (3) weeks per annum, in accordance with Company policy (but
not necessarily consecutive vacation weeks) during the Term.
THE O'GARA COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
/s/ N.E. Paciotti
-------------------------------------
Executive
- 7 -
