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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
AGREEMENT between Tracor, Inc., a Delaware corporation (the
"Corporation" or "Employer"), and __________________ (the "Executive" or
"Employee"), dated this 22nd day of November, 1996.
W I T N E S S E T H :
WHEREAS, Employee is currently employed by this Corporation; and
WHEREAS, the Corporation wishes to continue to attract and retain
well-qualified executive key personnel who are an integral part
of the management of the Corporation, such as the Executive,
and to assure both itself of continuity of management and the
Executive of continued employment;
NOW, THEREFORE, it is hereby agreed as follows:
1. DEFINITIONS.
(a) "DISABILITY" means Employee's inability, because of his/her
injury, illness, or other incapacity (physical or mental), to
perform the services for Employer contemplated hereby for 120
days out of any period of 150 days. Such disability shall be
deemed to have occurred on the 150th day of a given period.
(b) "TERMINATION DATE" means the date of receipt of a Notice of
Termination or any later date specified therein, as the case
may be.
(c) "AFFILIATED COMPANIES" means any company controlling,
controlled by, or under common control with the Corporation.
2. EMPLOYMENT PERIOD. The Corporation hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in
the employ of the Corporation, for the period commencing on the date
hereof and ending on the earlier to occur of (i) December 31, 1999, or
(ii) the first day of January following the year in which the Executive
reaches age 65. This Agreement shall automatically renew for
additional
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three-year periods effective December 31 of each year, beginning
December 31, 1997, unless otherwise determined by the Board of
Directors, such determination to be evidenced by the transmittal of
written notice to the Executive of the decision of the Board of
Directors to not allow automatic renewal as herein provided which must
notice be received by the Executive no later than 60 days prior to such
date. In no event, however, shall this Agreement, as so renewed,
extend beyond the year in which the Executive attains age 65 (the
"Employment Period").
3. POSITION AND DUTIES.
(a) During the Employment Period, the Executive's duties and
responsibilities (outlined in Exhibit A to this Agreement),
shall be commensurate in all material respects with those held,
exercised, and assigned at any time during the 90-day period
immediately preceding the date hereof excluding, however, any
changes in the number of personnel reporting thereto or any
other changes in Executive's organization which are reasonably
mandated, in each case, by then current business conditions.
Such duties and responsibilities shall be regarded as not
commensurate unless (x) Section 11.(c) of this Agreement shall
have been complied with and (y) the Executive's duties and
responsibilities with any successor to the Corporation are at
least commensurate in all material respects with those held by
the Executive with the Corporation at any time during the
90-day period immediately preceding the date hereof, as
contemplated in the immediately preceding paragraph of this
Section 3.(a).
(b) Excluding periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote
essentially all his/her business attention and time during
normal business hours to the business and affairs of the
Corporation and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use
Employee's best efforts to perform faithfully and efficiently
such responsibilities.
4. COMPENSATION.
(a) BASE SALARY. As of the date hereof, the Executive is
receiving, and shall receive a base salary equal to
$__________________ per annum. During the Employment Period,
the base salary shall be reviewed at least annually and shall
be increased at any time, and from time to time (but may not be
decreased), as shall be merited by the Executive's performance
hereunder ("Base Salary"). The
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Base Salary shall not be reduced after any such increase. Any
increase in the Base Salary shall not serve to limit or reduce
any other obligation to the Executive under this Agreement.
(b) INCENTIVE COMPENSATION. Provided that Executive shall not then
be in default hereunder, the Executive shall participate, in
each calendar year during the Employment Period, in the then
current incentive plan or program of the Corporation.
(c) WELFARE BENEFIT PLANS. During the Employment Period, the
Executive and/or the Executive's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under each applicable welfare benefit plan of the
Corporation including, without limitation, all medical, dental,
disability, group life, accidental death, and travel accident
insurance plans and programs of the Corporation and its
affiliated companies.
(d) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the
policies and procedures of the Corporation, as in effect at any
time during the 90-day period immediately preceding the date
hereof or, if more favorable to the Executive, as in effect at
any time hereafter with respect to other key executives.
Employee will furnish Employer with evidence of having incurred
all such expenses.
(e) VACATION. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the policies of
the Corporation as in effect at any time during the 90-day
period immediately preceding the date hereof or, if more
favorable to the Executive, as in effect at any time thereafter
with respect to other key executives.
5. TERMINATION.
(a) DEATH OR DISABILITY. This Agreement shall terminate
automatically upon the Executive's death. The Corporation may
terminate this Agreement after having established the
Executive's Disability by giving the Executive written notice
of its intention to terminate the Executive's employment. In
such a case, the Executive's employment with the Corporation
shall terminate effective on the 30th day after receipt of such
notice (the "Disability Effective Date") provided that, within
30 days after such receipt, the Executive shall have failed to
return to full-time performance of the Executive's duties.
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(b) CAUSE. The Corporation may terminate the Executive's
employment for cause. For purposes of this Agreement, "cause"
means (i) an act or acts of dishonesty or gross negligence
taken by the Executive in connection with the performance of
Executive's duties hereunder, or (ii) material violations by
the Executive of the Executive's obligations under Section 3.
of this Agreement, which violations have not either been
remedied within five days after receipt of notice in regard
thereto or, if not capable of being remedied in such period,
substantial efforts towards such end have not, in the
reasonable opinion of Employer, begun within such period.
(c) FAILURE TO PERFORM SATISFACTORILY. The Executive's employment
may be terminated by the Corporation in the event that the
Board determines, in its sole discretion, that the Executive
has unreasonably and repeatedly failed to satisfactorily
perform his/her duties (as specified in Exhibit A to this
Agreement) to the detriment of the Corporation. Such failure
shall be defined in detail in a preliminary notice to the
executive by the Corporation, and the preliminary notice will
give the Executive 30 days in which to demonstrate improved
performance in the area(s) identified as deficient. A review
of the Executive's performance will occur at the end of 30 days
and the Executive shall receive a written evaluation of noted
improvements or continued deficiencies. After the 30-day
review, the Executive will have an additional 30 days in which
to improve his/her performance in the identified deficient
areas. If at the completion of such additional 30 days the
Corporation determines that the Executive's performance has not
improved to the level required hereby, the Executive may, at
the option of the company, be terminated.
(d) GOOD REASON. The Executive's employment may be terminated by
the Executive anytime during the Employment Period for good
reason. For purposes of this Agreement, "good reason" means:
(i) (A. the assignment to the Executive of any duties
inconsistent in any material respect with the
Executive's duties or responsibilities as
contemplated by Section 3. of this Agreement;
or
(B. any other action by the Corporation which
results in a material diminishment in such
duties or responsibilities, other than an
inadvertent action which is remedied by the
Corporation promptly after receipt of notice
thereof given by the Executive, provided that
the Company shall not be deemed to have
breached this Section due to any reductions of
the number of personnel reporting to
Executive, nor due to any other changes in
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Executive's organization, in each case
reasonably mandated by then current business
conditions;
(ii) any failure by the Corporation to comply with any of
the provisions of this Agreement, other than an
insubstantial and inadvertent failure which is
remedied by such entity promptly after receipt of
notice thereof given by the Executive;
(iii) any purported termination of the Executive's
employment other than as permitted by this Agreement,
it being understood that any such purported
termination shall not be effective for any purpose of
this Agreement; or
(iv) any failure by the Corporation or a Successor to
comply with and satisfy Section 11.(c) of this
Agreement.
(e) NOTICE OF TERMINATION. Any termination by the Corporation for
cause or by the Executive for good reason or by the Corporation
for failure to perform satisfactorily shall be communicated by
Notice of Termination to the other party in writing. For
purposes of this Agreement, a "Notice of Termination" is a
written notice which (i) indicates the specific termination
provision of this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to
provide a basis for such termination, and (iii) specifies the
Termination Date (which date shall be not less than 15 days
after the giving of such notice).
6. OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(a) DEATH. If the Executive's employment is terminated by reason
of the Executive's death, this Agreement shall terminate
without further obligations to the Executive's legal
representatives under this Agreement other than those
obligations accrued hereunder at the date of the Executive's
death. Anything in this Agreement to the contrary
notwithstanding, the Executive's family shall be entitled to
receive benefits at least equal to those provided by the
Corporation to surviving families of executives of the
Corporation under such plans, programs, and policies relating
to family death benefits, if any, as in effect at any time
during the 90-day period immediately preceding the date hereof
or, if more favorable to the Executive and/or the Executive's
family, as in effect at any time thereafter with respect to
other key executives and their families.
(b) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability, the Executive shall be
entitled after the Disability
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Effective Date to receive disability and other benefits at
least equal to those provided by the Corporation to disabled
employees and/or their families in accordance with such plans,
programs, and policies relating to disability, if any, as in
effect during the 90-day period immediately preceding the date
hereof or, if more favorable to the Executive and/or the
Executive's family, as in effect at any time thereafter with
respect to other key executives and their families.
(c) UNSATISFACTORY PERFORMANCE OR FOR CAUSE. If the Executive's
employment shall be terminated for unsatisfactory performance
or for cause, the Corporation shall pay the executive his/her
Base Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given, and shall
also reimburse Executive for any amounts due and owing thereto
pursuant to Section 4.(d) above, plus any accrued and unpaid
vacation days, at the rate in effect on the Date of
Termination, and thereafter shall have no further obligations
to the Executive under this Agreement.
(d) GOOD REASON; OTHER THAN FOR CAUSE OR DISABILITY. If, during
the Employment Period, the Corporation shall terminate the
Executive's employment for other than cause or disability, or
the employment of the Executive shall be Terminated by the
Executive for good reason,
(i) the Corporation shall pay to the Executive, in a lump
sum in cash within 30 days after the Date of
Termination Date, the following amounts:
(A. if not theretofore paid, the Executive's Base
Salary through the Date of Termination, and
any accrued and unpaid vacation days, at the
rate in effect on the Date of Termination or,
if higher, at the highest rate in effect at
any time preceding the Termination Date; and
(B. the Executive's pro rata portion of any Bonus
(as defined below) payable to him/her for the
fiscal year in which such termination occurs;
and
(ii) the Corporation shall pay to the Executive an amount
equal to the Base Salary of the executive in effect at
the time Notice of Termination was given or, if
higher, at the highest rate in effect at any time
within the 90-day period preceding the Effective Date,
plus an amount equal to any Bonus payable to him/her,
such amount being payable to the Executive in 12 equal
installments, beginning on the first day of the month
following such Termination; and
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(iii) in respect of any then outstanding awards to the
Executive under the Stock Plan for Employees of
Tracor, Inc. and Subsidiaries (the "Plan") or any
successor or supplement thereto, to the extent
permitted by law (any contrary provisions of the plan
or any then outstanding options, rights, or grants
thereunder notwithstanding), effective upon the date
of the Notice of Termination, all stock options or
rights of Executive shall become immediately
exercisable in full, and for 90 days thereafter; and
all restrictions shall lapse or terminate with respect
to restricted shares or units and the employee shall
be deemed vested therein; and
(iv) the Corporation shall, promptly upon submission by the
Executive of supporting documentation, pay or
reimburse to the Executive any costs and expenses
(including moving and relocation expenses) paid or
incurred by the Executive which would have been
payable under Section 4.(d) if the Executive's
employment had not terminated.
If such termination should occur prior to December 1 of any year, the
amount of bonus payable pursuant to the provisions of subsections
(d)(i)B. and (d)(ii) shall be calculated based upon the average bonus
actually earned by the executive during the two calendar years
immediately preceding the year of Executive's Termination or, if such
termination should occur thereafter, such bonus shall be based upon the
average bonus actually earned by the Executive for the year in which
such Termination occurs, and the bonus earned in the immediately
preceding year ("Bonus").
Any provisions in such Sections to the contrary notwithstanding, the
monthly payments provided for in Section 6.(d)(ii) shall cease on
January 1 of the year following the year in which the Executive attains
age 65, or on the date of his/her death, whichever first occurs.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any
benefit, bonus, incentive, or other plan or program provided by the
Corporation or any of its affiliated companies and for which the
Executive may qualify nor, except to the extent specifically provided
herein, shall anything herein limit or otherwise affect such rights as
the Executive may have under any stock option or other agreements with
the Corporation or any of its affiliated companies. Amounts which are
vested benefits or which the Executive is otherwise entitled to receive
under any plan or program of the Corporation or any of its affiliated
companies at or subsequent to the Date of Termination shall be payable
in accordance with such plan or program.
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8. FULL SETTLEMENT. The Corporation's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances including, without
limitation, any unliquidated set off, counterclaim, or recoupment, or
any defense or other right which the Corporation may have against
Executive or others. The payment by the Corporation of the amount set
forth in Section 6. above shall constitute payment in full of all of
Corporation's liabilities to Executive resulting from the Termination
of Executive's employment with the Corporation. In no event shall the
Executive be obligated to seek other employment by way of mitigation of
the amounts payable to the Executive under any of the provisions of
this Agreement.
9. NON-COMPETITION. During the Employment Period and for a period of six
months thereafter, Employee agrees not to, directly or indirectly,
engage in any business, whether as an owner, officer, agent,
contractor, or employee, which would unfairly benefit from the
confidential information or trade secrets which Employee learned during
the course of his/her employment with Employer (which Employee
acknowledges are the sole property of Employer), and Employee agrees
not to use or disclose such information or trade secrets to third
parties except as contemplated hereby. Employee also agrees that
he/she will not now or in the future disrupt, damage, interfere with,
or otherwise impair Employer's business whether by way of interfering
with or raiding its employees, or disrupting its relationship with
customers, agents, representatives, or vendors.
10. CONFIDENTIALITY. Employer and Employee agree not to divulge the terms
of this Agreement to anyone except that (i) Employer may divulge the
terms of this Agreement to officers and personnel of Employer, may
disclose the existence and contents of this Agreement, to the extent
required by state and federal law, including, but not limited to, the
federal securities laws, and may disclose the existence and contents of
this Agreement to Employer's parent corporations, government auditors,
or contractors of Employer who have a need to know in order to perform
their duties or obtain appropriate approvals, and (ii) Employee may
divulge the terms of this Agreement to his/her attorney or his/her
immediate family (spouse, children, brothers, sisters, parents). To
the extent that Employer or Employee is permitted to disclose the terms
of this Agreement, they will each advise anyone to whom disclosure is
permitted that such persons must not divulge the terms of this
Agreement to any other person or persons.
11. SUCCESSORS.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Corporation, shall not be
assignable by the Executive. This Agreement shall inure to the
benefit of and be enforceable by the Executive's
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legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Corporation and its successors.
(c) In the event of the assignment or transfer by the Corporation
of substantially all of its business and assets to another
corporation, the Corporation shall cause such other
corporation, by an agreement in form and substance satisfactory
to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent as the
Corporation would be required to perform if no such assignment
or transfer had taken place.
12. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas without reference to
principles of conflict of laws.
(b) The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect.
(c) This Agreement may not be amended or modified otherwise than by
a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(d) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party
or sent by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Corporation: If to Executive:
Legal Department
Tracor, Inc. -------------------
0000 Xxxxxx Xxxx -------------------
Xxxxxx, Xxxxx 00000 -------------------
or to such other address as such party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(e) The invalidity or enforceability or any provision of this
Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
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(f) The Corporation may withhold from any amounts payable under
this Agreement such federal, state, or local taxes as shall be
required to be withheld pursuant to any applicable law or
regulation.
(g) This Agreement contains the entire understanding of the
Corporation and the Executive with respect to the subject
matter hereof, and supersedes any prior or contemporaneous
agreements between the parties regarding Executive's employment
with the Corporation.
IN WITNESS WHEREOF, the Executive has hereunder set his/her hand and,
pursuant to authorization from its Board of Directors, the Corporation has
caused these presents to be executed in its name on its behalf, all as of the
date and year first above written.
EXECUTIVE TRACOR, INC.
By:
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Xxxxx X. Xxxxxx, President
