Exhibit 10.13
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is dated as of June 11, 1997
between Exigent International Inc., a Delaware corporation (the "Company") and
Xxxxxxx X. Xxxxx (the "Employee").
WHEREAS, Company has determined that it would be desirable and in the best
interests of Company to continue to employ Employee, and Employee wishes to
continue his employment with Company.
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereinafter contained, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, Company and Employee agree
as follows:
1. Employment. Company hereby employs the Employee and the Employee hereby
accepts employment upon the terms and conditions set forth in this
Agreement. Employee will serve as Exigent President and Chief Operating
Officer of Company, at the discretion of the Company's Chief Executive
Officer ("CEO").
2. Term. Unless sooner terminated as set forth herein, the term of this
Agreement ("Term") shall begin on the business day this Agreement is
executed (the "Commencement Date"), and end at midnight on the third
anniversary of the commencement date, unless extended. The Term may be
extended by mutual written agreement of the Company and Employee provided
the parties shall agree in writing at least three months' prior to
expiration of the Term.
3. Compensation.
(a) For all services rendered by the Employee under this Agreement, the
Company shall pay and Employee shall accept an annual salary of ONE
HUNDRED FORTY-FIVE THOUSAND and NO/100 DOLLARS ($145,000) per annum or
lesser amount, on a pro rata basis, for any period less than a full
year. This compensation shall be payable to Employee in equal
installments in accordance with the Company's normal pay periods, and
shall be subject to all appropriate withholding taxes.
The annual salary payable to Employee will be subject to upward
adjustment as determined by Company's management and approved by the
Board of Directors in the event that Company generates annual revenues
equal to or greater than that specified in an approved three-year plan
(the "Plan").
(b) In addition to the compensation provided for in Section 3(a), Employee
shall be granted options to purchase up to 100,000 shares of the
common stock, $.01 par value per share, of Company (the "Common
Stock"), at an exercise price of $2.25 per share of 110% of current
market value whichever is higher and on the terms and conditions
described in the Incentive Stock Option Agreement, which Employee
agrees to sign, attached hereto as Exhibit A and incorporated herein
by this reference.
(c) Provided that Employee has not been terminated for due cause (as that
term is defined below in Section 8), in addition to the compensation
provided for in Section (3)(a) above, Company shall grant to Employee
options to purchase an additional 72,500 shares of Common Stock at an
exercise price of $2.25 per share or 110% of current market value
whichever is higher if Company shall receive on or prior to February
1, 1998. (See annual Executive Incentive Plan), including
(i) earnings of at least $2.9 million or prorated in accordance with
the approved Executive Incentive Plan for 1998; or
(ii) new funding for Company of at least $5,000,000, including long
term (at least 5 years) subordinated debt or equity or a
combination of both.
The Board of Directors may, in its sole discretion, award part or all
of the options to purchase such 72,500 shares of Common Stock even if
none of the foregoing conditions are achieved on or prior to February
1, 1998. If and to the extent any such options are awarded pursuant to
this Section 3(c), they shall be awarded on the terms and conditions
described in the form of the Incentive Stock Option Agreement, except
that the amount of Common Stock subject thereto shall be adjusted to
reflect the amount to which Employee is then entitled.
(d) In addition to the compensation provided for in Sections 3(a), (b) and
(c) hereof, Employee shall also be entitled to the following during
the Term of this Agreement:
(i) Four weeks paid vacation annually initially and additional
vacation as appropriate in accordance with Company policy to be
adopted, provided that Employee will endeavor to schedule his
vacation to avoid conflicts with his duties hereunder. During the
term of his employment under the Agreement, Employee shall be
entitled to the holidays and sick leave afforded and permitted by
Company to other employees;
(ii) at Employee's option, group medical insurance and dental
insurance of the kind and to the extend offered from time to time
during the Term of this Agreement to other employees of Company;
(iii)long-term disability insurance, providing for benefits equal to
66 2/3% of Employee's monthly salary to a maximum of $6,000
(Company will continue to pay Employee's full salary during
period of short-term disability);
(iv) participation in Company's 401(k) plan, on such terms and
conditions as such participation is made generally available to
all employees of Company;
(v) such other benefits, such as pension, profit sharing, insurance,
short-term disability made generally available by Company, in its
sole discretion, now or in the future to all of its employees;
and
(vi) such other benefits, if any, which the Board of Directors, in its
sole discretion, may make available to Employee.
4. Duties; Authority.
(a) During the Term, Employee shall perform those services reasonably
requested by his immediate manager and the CEO in a manner and to an
extent which will allow the Company to benefit from Employee's
experience in and knowledge of the industry in which the Company is
engaged and as specified in greater detail in Exhibit B attached
hereto and incorporated herein by this reference. During the Term,
Employee shall devote his full professional time, attention, skill and
energy to the business, welfare and affairs of the Company. While
serving as Exigent President and Chief Operating Officer, Employee
shall have the authority and responsibility to devise and implement
strategies and operations and to supervise and manage all employees in
his/her business unit as shown on the corporate organizational chart
approved by the Board of Directors on June 11, 1997 which is set forth
as Attachment 1 to Exhibit B. Such organization chart may be modified
by the CEO in his discretion after collaboration from Employee.
Employee shall use his best efforts in the performance of his duties
hereunder and to promote the interests of the Company and its present
and future subsidiaries and affiliates. Employee agrees to abide by
all rules and regulations of Company as established or amended from
time to time.
(b) The parties agree that Employee may not, without the prior written
consent of Company, be engaged in any other business activity without
Company's prior written consent, whether or not such activity is
pursued for gain, profit or other pecuniary advantage; provided,
however, that subject to the Non-Disclosure and Non-Competition
Agreement set forth in Exhibit D. Employee may passively invest his
personal assets in businesses where the form or manner of such
investment will not require services on the part of Employee.
5. Business Expenses and Reimbursements. Employee shall further be entitled to
reimbursement by Company for other ordinary and necessary business expenses
incurred by Employee in the performance of his duties hereunder, and
further provided that:
(a) Each such expenditure is of a nature qualifying it as a proper
deduction on the federal and state income tax returns of the Company
as a business expense and not as deductible compensation to the
Employee; and
(b) Employee furnishes the Company with adequate records and other
documentary evidence required by federal and state statutes and
regulations for the substantiation of such expenditures as deductible
business expenses of the Company and not as deductible compensation to
the Employee.
Employee agrees that if, at any time, any payment made to the Employee by
the Company as a business expense reimbursement for a particular item shall
be disallowed in whole as a deductible expense to the Company by the
appropriate taxing authorities, Employee shall reimburse Company to the
full extent of such disallowance if so requested by the Company in writing.
6. Proprietary Information and Inventions Agreement. As a condition to his
employment hereunder, Employee agrees to execute and deliver to Company a
Proprietary Information and Inventions Agreement in the form attached
hereto at Exhibit C and incorporated herein by this reference.
7. Non-Disclosure and Non-Competition Agreement. As a condition to his
employment hereunder, Employee agrees to execute and to deliver to the
Company a Non-Disclosure and Non-Competition Agreement in the form attached
hereto as Exhibit D and incorporated herein by this reference.
8. Termination.
(a) This Agreement may be terminated at any time prior to expiration of
the Term (i) by Employee upon sixty (60) days' prior written notice to
the Company, (ii) upon the disability (defined to mean the inability
of Employee to engage in substantial employment duties by reason of
any medically determinable physical or mental impairment for a
continuous period of 60 days) of Employee, (iii) by the Company for
"due cause" at any time (iv) by the Company without "due cause" at any
time upon fifteen (15) days' prior written notice to the Employee.
(b) In the event of termination pursuant to Section 8(a)(i), or Section
8(a)(iii), the Company shall not be obligated to make any severance
payments or any other further payments hereunder, except with respect
to accrued but unpaid compensation and reimbursements owed Employee
for expenses incurred prior to the effective date of termination. For
purposes of Section 8, "due cause" shall mean personal dishonesty,
willful misconduct, breach of a fiduciary duty involving personal
profit, willful violation of any law, rule, regulation (other than a
law, rule or regulation relating to offenses or misdemeanors unrelated
to any of the foregoing or to the Company's business) or final cease
and desist order, or material breach of any provision of this
Agreement, including but not limited to Employee's obligations under
Sections 4 hereof or a material breach of any of Employee's
obligations under Proprietary Information and Inventions Agreement
attached hereto as Exhibit C or under the Non-Disclosure and
Non-Competition Agreement attached hereto as Exhibit D.
(c) In the event of termination by the Company pursuant to Section
8(a)(iv) (i.e., without due cause), then in addition to any amounts to
which Employee is entitled under Section 8(b), Employee shall also be
entitled to receive severance pay as follows:
(i) If Employee is so terminated without due cause within the first
twelve months of the Term ("First Year"), an amount equal to
eighteen (18) months' salary, based on the then current salary of
Employee as of the effective date of termination, payable in
equal installments in accordance with Company's normal pay
periods for Employee (i.e. weekly, bi-weekly or monthly)
beginning one pay period after the effective date of termination;
(ii) If Employee is so terminated without due cause within the second
twelve months of the Term ("Second Year"), an amount equal to
twelve (12) months' salary, based on the then current salary of
Employee as of the effective date of termination, payable in
equal installments in accordance with Company's normal pay
periods for Employee beginning one pay period after the effective
date of termination;
(iii)If Employee is so terminated without due cause within the third
twelve months of the Term ("Third Year"), an amount equal to six
(6) months' salary, based on the then current salary of Employee
as of the effective date of termination, payable in equal
installments in accordance with Company's normal pay periods for
Employee beginning one pay period after the effective date of
termination; and
(iv) If Employee is still employed by Company after the Third Year,
and (in the absence of any superseding arrangement with Company,
whether pursuant to renewal of this Agreement or otherwise) is so
terminated without due cause, an amount equal to three (3)
months' salary, based on the then current salary of Employee as
of the effective date of termination, payable in equal
installments in accordance with Company's normal pay periods for
Employee beginning one pay period after the effective date of
termination.
(d) In the event of termination by the Company pursuant to Section
8(a)(iv) (i.e. without due cause), Employee shall also be entitled to
receive, at his option and upon his written request, group medical
insurance as described in Section 3(d)(ii) during the period Employee
is entitled to receive severance pay under Section 8(d) plus, if
applicable, any additional extension of the applicable
"Non-Competition Period" (as defined in the Non-Disclosure and
Non-Competition Agreement, pursuant to Section 3(g) of such
agreement).
(e) In the event of termination upon Employee's disability pursuant to
Section 8(a)(ii), the Company agrees to continue Employee's regular
salary payments from the date of termination through the date the
insurance company commences long term disability insurance payments or
denies coverage. In the event long term disability coverage is denied
due to admitted or proven fraud on behalf of the Employee, the Company
will have no severance payment obligations to Employee. If coverage is
denied for any other reason, Employee's termination will be treated as
termination without due cause under Section 8(a)(iv) and Employee will
be entitled to severance pay under Section 8(c) provided any such
regular salary payments made by Company to Employee under this Section
8(e) will be credited against Company's severance payment obligations.
(f) Notwithstanding anything to the contrary set forth in this Agreement,
in the event that Employee dies during the Term of this Agreement or
any extension thereof, this Agreement shall terminate upon the date of
such death, provided that in the event of Employee's death during the
Term of this Agreement or any extension thereof the Company shall
continue to pay Employee's salary for a period of ninety (90) days
following the date of death to the executor or administrator of the
Employee's estate, except in no event shall the Company be liable for
the payment of any such death benefit which exceeds the maximum
severance payment obligations pursuant to Section 8(e) above.
9. Notices. Any notice required or permitted hereunder shall be in writing and
shall be sufficiently given if personally delivered, delivered by facsimile
telephone transmission, delivered by express delivery service (such as
Federal Express), or mailed first class U.S. mail, postage prepaid,
addressed as follows:
If to the Employee:
Xxxxxxx X. Xxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to the Company:
Exigent International Inc.
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Legal Counsel
(or to such other address as any party shall specify by written notice so
given), and shall be deemed to have been delivered as of the date so
delivered or three (3) days after mailing for domestic mail and seven (7)
days for international mail.
10. Binding Effect; Benefits. This Agreement shall be binding upon and shall
inure to the benefit of this parties hereto and their respective successors
and assigns, if any. Notwithstanding anything contained in this Agreement
to the contrary, nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators or assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida, without
reference to principles of conflict of laws.
12. Headings. Headings of the Sections of this Agreement are for the
convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
13. No Conflict. Employee represents and warrants that performance of the terms
of this Agreement, and the terms of any agreement attached hereto as an
Exhibit, to the best of his actual knowledge, will not breach any agreement
entered into by Employee, and Employee agrees that he will not enter into
any agreement in conflict with this Agreement and the agreements attached
as Exhibits. Employee further covenants that (i) he shall not in the
performance of his duties hereunder (and the performance of such duties
shall not require him to) utilize any proprietary or confidential
information owned by any third party which he is prohibited from utilizing
by reason of agreement or applicable law, and (ii) he shall not at any time
disclose to Company any proprietary or confidential information owned by
any third party which he is prohibited from disclosing by reason of
agreement or applicable law.
14. Injunctive Relief. Employee acknowledges and agrees that a breach of his
obligations under this Agreement, and any agreement attached hereto as an
Exhibit or any other exhibit or attachment hereto, will result in
irreparable and continuing harm to the Company, for which there will be no
adequate remedy at law, and agrees that in the event of any breach or
prospective breach of this Agreement, the Company, its successors and
assigns will be entitled to injunctive relief in any federal or state court
of competent jurisdiction residing in the State of Florida without the
necessity or posting bond or other security therefor and without the
necessity of proving irreparable harm, and to such other and further relief
as may be proper. Employee hereby submits to the jurisdiction of the
preceding courts for the purposes of any actions or proceedings instituted
by the Company to obtain such injunctive relief, and agrees that the
process may be served on the Employee by registered mail, addressed to the
last address of the Employee known to the Company, or in any manner
authorized by law.
15. Severability. If for any reason whatsoever, any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid as applied to any particular case or in all cases,
such circumstances shall not have the effect of rendering such provision
invalid in any other case or of rendering any of the other provisions of
this Agreement inoperative, unenforceable or invalid.
16. Assignability. By reason of the special and unique nature of the services
hereunder, it is agreed that neither party hereto may assign any interest,
rights or duties which it or he may have in this Agreement without the
prior written consent of the other party, except that upon any merger,
liquidation, or sale of all or substantially all of the assets of the
Company to another corporation, this Agreement shall inure to the benefit
of and be binding upon the Employee and the purchasing, surviving or
resulting company or corporation in the same manner and to the same extent
as though such company or corporation were the Company.
17. Waivers. The failure or delay of the Company at any time to require
performance by the employee of any provision of this Agreement, even if
know, shall not affect the right of the Company to require performance of
that provision or to exercise any right, power or remedy hereunder, and any
waiver by the Company of any breach of any provision of this Agreement
should not be construed as a waiver of any continuing or succeeding breach
of such provision, a waiver of the provision itself, or a waiver of any
right, power or remedy under this Agreement. No notice to or demand on
Employee in any case shall, of itself, entitle Employee to any other or
further notice or demand in similar or other circumstances.
18. Indemnification. Company agrees to exercise its power to indemnify Employee
in the situations provided in the Company's current Certificate of
Incorporation in its form filed with the Secretary of State for the State
of Delaware as of the date of this Agreement. This indemnification shall
apply even if such Certificate is later amended or deleted.
19. Covenants of the Essence. The covenants of Employee set forth in this
Agreement and the other Exhibits are the essence of this Agreement; they
shall be construed as independent of any other provision in this Agreement;
and the existence of any claim or cause of action of the Employee against
the Company, whether predicated on this Agreement or not, shall not
constitute a defense to the enforcement by the Company of these covenants.
20. Survival. The provisions of this Agreement will survive the termination or
expiration of this Agreement where the intent so indicates they shall
survive and all other obligations of the Company and the Employee will
cease on termination or expiration of this Agreement. Notwithstanding the
foregoing, the Company and the Employee will remain liable for obligations
which accrued before termination or expiration of this Agreement (including
the Employee's rights to be paid or reimbursed for services rendered and
expenses incurred before termination or expiration of this Agreement.)
21. Entire Agreement. This Agreement, together with the agreements in the form
attached as Exhibits hereto and all other exhibits and attachments hereto,
constitutes the final written expression of all of the agreements between
the parties with respect to the subject matter hereof, supersedes all
correspondence, understandings, discussions and negotiations concerning the
matters specified herein, and specifically supersedes in its entirety other
agreements between Company and Employee. No addition to or modification of
any provision of this Agreement shall be binding upon any party unless made
in writing and signed by the party to be bound.
IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement
on the date written above.
EXIGENT INTERNATIONAL, INC.
/s/ B.R. Xxxxxxx
------------------------------------
Name: B.R. XXXXXXX
Title: CEO
/s/ Xxxxxxx X. Xxxxx
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(Employee Signature)
