EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is
made effective as of the 15th day of October, 2001 by and between Xxxxxx Xxxx,
a resident of New York (the "Employee"), and Orbit/FR, Inc., a Delaware
corporation (the "Company").
WHEREAS, the Company desires to employ Employee, and
Employee desires to be employed by the Company, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the parties,
subject to the terms and conditions set forth herein, agree as follows:
1. Employment and Term. The Company hereby employs Employee, and
Employee hereby accepts employment with the Company, as President and CEO (the
"Position") for a period (the "Term") commencing on the date hereof and
continuing until terminated pursuant to the provisions of Section 8 hereof.
2. Duties. During the Term, Employee shall serve the Company faithfully
and to the best of his ability and shall devote his full time, attention,
skill and efforts to the performance of the duties required by or appropriate
for the Position. Employee will be reporting directly to the company's
Chairman, Vice Chairman and Board of Directors.
3. Other Business Activities. During the Term, Employee will not,
without the prior written consent of the Board of Directors of the Company in
its sole discretion, directly or indirectly engage in any other business
activities or pursuits whatsoever, except activities in connection with
charitable or civic activities, personal investments and serving as an
executor, trustee or in other similar fiduciary capacity; provided, that such
activities do not interfere with his performance of his responsibilities and
obligations pursuant to this Agreement.
4. Compensation. The Company shall pay Employee, and Employee hereby
agrees to accept, as compensation for all services rendered hereunder and for
Employee's covenants provided for in Sections 5, 6 and 7 hereof, the
compensation set forth in this Section 4.
4.1. Base Salary. The Company shall pay Employee a base salary at
the annual rate of One Hundred Fifty thousand dollars ($150,000) (the "Base
Salary"). The Base Salary shall be inclusive of all applicable income and
other taxes and charges that are required by law to be withheld by the
Company, are requested to be withheld by Employee, and shall be withheld and
paid in accordance with the Company's normal payroll practice for its
similarly situated employees from time to time in effect. Upon commencement of
Employee's employment hereunder, Employee shall be entitled to a special
payment in an amount equal $6,667.
-1-
4.2. Bonus Program. Employee may be entitle to an annual bonus
(the "Bonus") based upon the achievement (during any calendar year) of such
written individual and corporate annual objectives (the "Objectives") as the
Board of Directors may from time to time establish. Employee acknowledges that
such Objectives may be amended from time to time without Employee's consent.
Employee further acknowledges that any Bonus shall be deemed earned on the
last day of the applicable calendar year and shall be payable to Employee by
the end of the first quarter of the following calendar year, except as
expressly otherwise set forth in Section 8 hereof in connection with a
pro-rata payment upon termination.
4.3. Fringe Benefits. Employee shall be entitled to participate
in any health, life and disability insurance, 401(k) and other fringe benefit
programs (collectively the "Benefits") of the Company to the extent and on
substantially similar terms and conditions as are accorded to other executives
of the Company and its affiliates (the "Orbit Group"). Provided, that Employee
may, subject to applicable laws, waive in writing participation in the
Company's health insurance plan and receive, in lieu thereof, an additional
compensation at an annual rate of $10,000 (inclusive of all applicable income
and other taxes) payable ratably along with each Base Salary payment.
4.4. Reimbursement of Expenses. Employee shall be reimbursed for
all normal items of travel and entertainment and miscellaneous expenses
reasonably incurred by him on behalf of Company, provided that such expenses
are documented and submitted to the Company all in accordance with the
reimbursement policies of the Company as in effect from time to time.
4.5. Stock Options. Subject to approval by the Company's Board of
Directors, Employee shall be granted stock options (the "Options") for 60,000
shares of the Company's common stock. The Options shall vest in three (3)
equal annual installments, commencing on the first anniversary hereof, and
shall otherwise be subject to all of the terms and conditions of the Company's
Employee Stock Option Plan. Provided, that the award of the Options shall
provide for an acceleration of vesting upon a change in control (i.e. a change
of more than 50% of the beneficial ownership of the Company's capital stock).
4.6. Use of Company Car. The Company shall make available to the
Employee a car of a standard suitable for his position owned or leased by the
Company for the Employee's business and reasonable personal use during the
Term. The Company shall be responsible for the cost of insurance and
maintenance for the vehicle. The Employee shall be responsible for overseeing
the proper maintenance of the vehicle. Employee shall be solely responsible,
and shall indemnify the Company, for the payment of any fines, costs or
expenses incurred in connection with moving or parking violations (the
"Violations") involving the vehicle, other than Violations that occurred while
the vehicle was under the control of an employee of the Company (other than
Employee) for business purposes only.
5. Confidentiality.
5.1. Employee recognizes and acknowledges that he will obtain
Proprietary Information (as hereinafter defined) of the Company and other
Orbit Group entities in the course
-2-
of his employment as an executive employee of the Company. Employee further
recognizes and acknowledges that the Proprietary Information is a valuable,
special and unique asset of the Company and the Orbit Group. As a result,
Employee shall not, without the prior written consent of the Company, for any
reason either directly or indirectly divulge to any third-party or use for his
own benefit, or for any purpose other than the exclusive benefit of the
Company, any confidential, proprietary, business and technical information or
trade secrets (the "Proprietary Information") of the Company or any other
Orbit Group entity revealed, obtained or developed in the course of his
employment with the Company. Proprietary Information shall include, but shall
not be limited to, any information relating to methods of production,
manufacture and research; computer hardware and software configurations,
computer inputs and outputs (regardless of the media on which stored or
located) and computer processing systems, techniques, designs, architecture,
and interfaces; the identities of, the relationship with, the terms of
contracts and agreements with, the needs and requirements of, and the course
of dealing with, the respective Orbit Group entities' actual and prospective
customers, contractors and suppliers; and any other materials prepared by
Employee in the course of his employment by the Company, or prepared by any
other employee or contractor of the Orbit Group for the Orbit Group's
customers, (including concepts, layouts, flow charts, specifications,
know-how, plans, sketches, blueprints, costs, business studies, business
procedures, finances, marketing data, methods, plans, personnel information,
customer and vendor credit information and any other materials that have not
been made available to the general public). Nothing contained herein shall
restrict Employee's ability to make such disclosures during the course of the
employment as may be necessary or appropriate to the effective and efficient
discharge of the duties required by or appropriate for the Position or as such
disclosures may be required by law. Furthermore, nothing contained herein
shall restrict Employee from divulging or using for his own benefit or for any
other purpose any Proprietary Information that is readily available to the
general public so long as such information did not become available to the
general public as a direct or indirect result of Employee's breach of this
Section 5. Failure by the Company (or any other Orbit Group entity) to xxxx
any of the Proprietary Information as confidential or proprietary shall not
affect its status as Proprietary Information under the terms of this
Agreement.
5.2. All right, title and interest in and to Proprietary
Information shall be and remain the sole and exclusive property of the
respective Orbit Group entity. During the Term, Employee shall not remove from
the Company's offices or premises any documents, records, notebooks, files,
correspondence, reports, memoranda or similar materials of or containing
Proprietary Information, or other materials or property of any kind belonging
to the Company unless necessary or appropriate in accordance with the duties
and responsibilities required by or appropriate for the Position and, in the
event that such materials or property are removed, all of the foregoing shall
be returned to their proper files or places of safekeeping as promptly as
possible after the removal shall serve its specific purpose. Employee shall
not make, retain, remove and/or distribute any copies of any of the foregoing
for any reason whatsoever except as may be necessary in the discharge of the
assigned duties and shall not divulge to any third person the nature of and/or
contents of any of the foregoing or of any other oral or written information
to which he may have access or with which for any reason he may become
familiar, except as disclosure shall be necessary in the performance of the
duties; and upon the termination of his
-3-
employment with the Company, he shall return to the Company all originals and
copies of the foregoing then in the possession, whether prepared by Employee
or by others.
6. Assignment of Developments
6.1. If at any time or times during Employee's employment with
the Company, he shall (either alone or with others) make, discover or reduce
to practice any invention, modification, discovery, design, development,
improvement, process, software program, work of authorship, documentation,
formula, data, technique, know-how, secret or intellectual property right
whatsoever or any interest therein (whether or not patentable or registrable
under copyright or similar statutes or subject to analogous protection)
(herein called "Developments") that (i) relates to the then current business
of the Company or any then current customer of or supplier to the Company or
any of the products or services being developed, manufactured or sold by the
Company, (ii) results from tasks assigned me by the Company or (iii) results
from any use of premises or personal property (whether tangible or intangible)
owned, leased or contracted for by the Company, such Developments and the
benefits thereof shall immediately become the sole and absolute property of
the Company and its assigns, and Employee shall promptly disclose to the
Company (or any persons designated by it) each such Development and Employee
hereby assigns any rights he may have or acquire in the Developments, and
benefits and/or rights resulting therefrom, to the Company and its assigns
without further compensation and shall communicate, without cost or delay, and
without publishing the same, all available information relating thereto (with
all necessary plans and models) to the Company.
6.2. Upon disclosure of each Development to the Company, Employee
will, during his employment with the Company, and at any time thereafter, at
the request and cost of the Company, sign, execute, make and do all such
deeds, documents, acts and things as the Company and its duly authorized
agents may reasonably require (i) to apply for, obtain and vest in the name of
the Company alone (unless the Company otherwise directs) letters patent,
copyrights or other analogous protection in any country throughout the world
and when so obtained or vested to renew and restore the same; and (ii) to
defend any opposition proceedings in respect of such applications and any
opposition proceedings or petitions or applications for revocation of such
letters patent, copyright or other analogous protection.
6.3. In the event the Company is unable, after all diligent
effort, to secure Employee's signature on any letters patent, copyright or
other analogous protection relating to a Development, whether because of
Employee's physical or mental incapacity or for any other reason whatsoever,
Employee hereby irrevocably designate and appoint the Company through its duly
authorized president as his agent and attorney-in-fact, to act for and in his
behalf and stead solely to execute and file any such application or
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent, copyright or other analogous
intellectual property protection thereon with the same legal force and effect
as if executed by him.
-4-
7. Covenant not to Compete.
7.1. Employee shall not, during the Term and for a period of two
(2) years after termination hereof for any reason whatsoever (the "Restricted
Period"), do any of the following directly or indirectly without the prior
written consent of the Company in its sole discretion:
7.1.1. engage or participate, directly or indirectly, in
any business activity competitive with the business of the Company or any
other Orbit Group entity (collectively the "Business") as conducted during the
Term;
7.1.2. become interested (as owner, stockholder, lender,
partner, co-venturer, director, officer, employee, agent, consultant or
otherwise) in any person, firm, corporation, association or other entity
engaged in any business that is competitive with the Business as conducted
during the Term, or become interested in (as owner, stockholder, lender,
partner, co-venturer, director, officer, employee, agent, consultant or
otherwise) any portion of the business of any person, firm, corporation,
association or other entity where such portion of such business is competitive
with the Business as conducted during the Term (notwithstanding the foregoing,
Employee may hold not more than one percent (1%) of the outstanding securities
of any class of any publicly-traded securities of a company that is engaged in
activities competitive with the Business as conducted during the Term);
7.1.3. solicit or call on, either directly or indirectly,
any (i) customer with whom the Company shall have dealt at any time during the
Term, or (ii) supplier with whom the Company shall have dealt at any time
during the one (1) year period immediately preceding the termination of
Employee's employment hereunder;
7.1.4. influence or attempt to influence any supplier,
customer or potential customer of the Company to terminate or modify any
written or oral agreement or course of dealing with the Company; or
7.1.5. influence or attempt to influence any person either
(i) to terminate or modify the employment, consulting, agency, distributorship
or other arrangement with the Company or the Orbit Group, or (ii) to employ or
retain, or arrange to have any other person or entity employ or retain, any
person who has been employed or retained by the Company or the Orbit Group as
an employee, consultant, agent or distributor of the Company or the Orbit
Group at any time during the one (1) year period immediately preceding the
termination of Employee's employment hereunder.
7.2. Employee acknowledges that he has carefully read and
considered the provisions of this Section 7. Employee acknowledges that the
foregoing restrictions may limit his ability to earn a livelihood in a
business similar to the Business, but he nevertheless believes that he has
received and will receive sufficient consideration and other benefits in
connection with the payment by the Company of the compensation set forth in
Section 4 to justify such restrictions, which restrictions Employee does not
believe would prevent him from earning a living in
-5-
businesses that are not competitive with the Business and without otherwise
violating the restrictions set forth herein.
7.3. Any reference to the "Company" in Section 7.1 above shall
mean the Company and its subsidiaries, individually and collectively, as
appropriate in context.
8. Early Termination. Employee's employment hereunder may be terminated
during the Term upon the occurrence of any one of the events described in this
Section 8. Upon termination, Employee shall be entitled only to such
compensation and benefits as described in this Section 8.
8.1. Termination for Disability.
8.1.1. In the event of the disability of Employee such
that Employee is unable to perform the duties and responsibilities hereunder
to the full extent required by this Agreement by reasons of illness, injury or
incapacity for a period of more than ninety (90) consecutive days or more than
one hundred eighty (180) days, in the aggregate, during any twenty four (24)
months period, Employee's employment hereunder may be terminated by the
Company by written notice to Employee.
8.1.2. In the event of a termination of Employee's
employment hereunder pursuant to Section 8.1.1, Employee shall be entitled to
receive all accrued but unpaid (as of the effective date of such termination)
Base Salary, Benefits and a pro-rata amount (as determined in good faith by
the Company's Board of Directors) of the Bonus applicable to the then calendar
year. Except as specifically set forth in this Section 8.1, the Company shall
have no liability or obligation to Employee hereunder by reason of such
termination, except that Employee shall be entitled to receive any payment
prescribed under any disability benefits plan in which he is a participant as
an employee of the Company, and to exercise any rights afforded under any
other benefit plan then in effect.
8.2. Termination by Death. In the event that Employee dies during
the Term, Employee's employment hereunder shall be terminated thereby and the
Company shall pay to Employee's executors, legal representatives or
administrators an amount equal to the accrued and unpaid (as of the effective
date of such termination) Base Salary, Benefits and a pro-rata amount (as
determined in good faith by the Company's Board of Directors) of the Bonus
applicable to the then calendar year. Except as specifically set forth in this
Section 8.2, the Company shall have no liability or obligation hereunder to
Employee's executors, legal representatives, administrators, heirs or assigns
(or any other person claiming under or through him by reason of Employee's
death), except that Employee's executors, legal representatives or
administrators will be entitled to receive the payment prescribed under any
death or disability benefits plan in which he is a participant as an employee
of the Company, and to exercise any rights afforded under any benefit plan
then in effect.
-6-
8.3. Termination for Cause.
8.3.1. The Company may terminate Employee's employment
hereunder at any time for "cause" upon written notice to Employee. For
purposes of this Agreement, "cause" shall mean:
8.3.1.1 any breach by Employee of any of the
covenants under Sections 5, 6 or 7 of this Agreement;
8.3.1.2 Employee has been grossly negligent or has
committed willful misconduct in carrying out his duties hereunder and either
continues to be grossly negligent or commit willful misconduct for a period
of, or fails to cure the results of his gross negligence or willful misconduct
within, 30 days after written notice from the Company to Employee thereof;
8.3.1.3 conduct of Employee involving any type of
insubordination, or disloyalty to the Company, or willful misconduct with
respect to the Company, including without limitation fraud, embezzlement,
theft or proven dishonesty in the course of the employment;
8.3.1.4 conviction of a felony or other criminal act
punishable by more than one (1) year in prison; and
8.3.1.5 commission by Employee of an intentional
tort or an act involving moral turpitude or constituting fraud.
8.3.2. In the event of a termination of Employee's
employment hereunder pursuant to Section 8.3 Employee shall be entitled to
receive all accrued but unpaid (as of the effective date of such termination)
Base Salary and Benefits. All Base Salary and Benefits shall cease at the time
of such termination. Employee shall not be entitled to receive any Bonus
(whether or not then earned) for (i) the then calendar year, and (ii) the
calendar year in which the event giving rise to the termination for "cause"
occurred. Except as specifically set forth in this Section 8.3, the Company
shall have no liability or obligation to Employee hereunder by reason of such
termination.
8.4. Termination Without Cause.
8.4.1. The Company may terminate Employee's employment
hereunder at any time, for any reason whatsoever, with or without cause,
effective upon the date designated by the Company upon ninety (90) days (the
"Notice Period") prior written notice to Employee.
8.4.2. In the event of a termination of Employee's
employment hereunder pursuant to Section 8.4, Employee shall be entitled to
receive all accrued but unpaid (as of the effective date of such termination)
Base Salary, Benefits and a pro-rata amount (as determined in good faith by
the Company's Board of Directors) of the Bonus applicable to the then calendar
year. Employee shall further be deemed to have a vested interest in such
portion of the Options
-7-
equal to the number of months from the date hereof until the effective date of
termination of his employment hereunder, divided by 36. Except as specifically
set forth in this Section 8.4, the Company shall have no liability or
obligation to Employee hereunder by reason of such termination.
8.4.3. During the Notice Period, Employee (i) shall not be
entitled to retain the Position, and (ii) shall cooperate in good faith with
the Company in transitioning the duties of the Position to one or more
successors as determined by the Board of Directors or the Chairman.
8.5. Termination By Employee.
8.5.1. Employee may terminate Employee's employment
hereunder at any time for any reason effective upon the date designated by
Employee in written notice of the termination of the employment hereunder
pursuant to this Section 8.5; provided that, such date shall be at least sixty
(60) days after the date of such notice.
8.5.2. In the event of a termination of Employee's
employment hereunder pursuant to Section 8.5 hereof, Employee shall be
entitled to receive all accrued but unpaid (as of the effective date of such
termination) Base Salary and Benefits. All Base Salary and Benefits shall
cease at the time of such termination, subject to the terms of any benefit
plan then in force and applicable to Employee. Employee shall not be entitled
to receive any Bonus on account of the then current year. Except as
specifically set forth in this Section 8.5, the Company shall have no
liability or obligation to Employee hereunder by reason of such termination.
9. Representations, Warranties and Covenants of Employee.
9.1. Employee represents and warrants to the Company that:
9.1.1. There are no restrictions, agreements or
understandings whatsoever to which Employee is a party which would prevent or
make unlawful Employee's execution of this Agreement or Employee's employment
hereunder, or which is or would be inconsistent or in conflict with this
Agreement or Employee's employment hereunder, or would prevent, limit or
impair in any way the performance by Employee of the obligations hereunder;
9.1.2. Employee has disclosed to the Company all
restraints, confidentiality commitments or other employment restrictions that
he has with any other employer, person or entity; and
10. Survival of Provisions. The provisions of this Agreement set forth
in Sections 5, 6, 7, 9, 10, 16 and 19 hereof shall survive the termination of
Employee's employment hereunder for any reason whatsoever.
11. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and Employee and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided that
neither Employee nor the Company may make any
-8-
assignments of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other parties hereto;
except that, without such consent, the Company may assign this Agreement to
any successor to all or substantially all of its assets and business by means
of liquidation, dissolution, merger, consolidation, transfer of assets, or
otherwise, provided that such successor assumes in writing all of the
obligations of the Company under this Agreement.
12. Notice. Any notice hereunder by either party shall be given by
personal delivery or by sending such notice by certified mail, return-receipt
requested, or telecopied, addressed or telecopied, as the case may be, to the
other party at its address set forth below or at such other address designated
by notice in the manner provided in this section. Such notice shall be deemed
to have been received upon the date of actual delivery if personally delivered
or, in the case of mailing, two (2) days after deposit with the U.S. mail, or,
in the case of facsimile transmission, when confirmed by the facsimile machine
report.
If to Employee:
Xxxxxx Xxxx
000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
If to the Company:
Orbit/FR, Inc.
Att: Chairman
000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
With a copy to:
Xxxxxxxx Xxxxxxx, Esquire
Xxxxxx Xxxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
13. Entire Agreement; Amendments. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the subject
matter hereof, and merges and supersedes all prior and contemporaneous
discussions, agreements and understandings of every nature between the parties
hereto relating to the employment of Employee with the Company. This Agreement
may not be changed or modified, except by an agreement in writing signed by
each of the parties hereto.
-9-
14. Waiver. The waiver of the breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
15. Governing Law. This Agreement shall be construed and enforced in
accordance with the substantive laws of the State of Delaware, without regard
to the principles of conflicts of laws of any jurisdiction.
16. Invalidity. If any provision of this Agreement shall be determined to
be void, invalid, unenforceable or illegal for any reason, the validity and
enforceability of all of the remaining provisions hereof shall not be affected
thereby. If any particular provision of this Agreement shall be adjudicated to
be invalid or unenforceable, such provision shall be deemed amended to delete
therefrom the portion thus adjudicated to be invalid or unenforceable, such
amendment to apply only to the operation of such provision in the particular
jurisdiction in which such adjudication is made; provided that, if any
provision contained in this Agreement shall be adjudicated to be invalid or
unenforceable because such provision is held to be excessively broad as to
duration, geographic scope, activity or subject, such provision shall be
deemed amended by limiting and reducing it so as to be valid and enforceable
to the maximum extent compatible with the applicable laws of such
jurisdiction, such amendment only to apply with respect to the operation of
such provision in the applicable jurisdiction in which the adjudication is
made.
17. Section Headings. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
18. Number of Days. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and legal
holidays; provided that, if the final day of any time period falls on a
Saturday, Sunday or day which is a legal holiday in the location of the
principal place of business of the Company, then such final day shall be
deemed to be the next day which is not a Saturday, Sunday or legal holiday.
19. Specific Enforcement; Extension of Period.
19.1. Employee acknowledges that the restrictions contained in
Sections 5, 6, and 7 hereof are reasonable and necessary to protect the
legitimate interests of the Company and its affiliates and that the Company
would not have entered into this Agreement in the absence of such
restrictions. Employee also acknowledges that any breach by him of Sections 5,
6, or 7 hereof will cause continuing and irreparable injury to the Company for
which monetary damages would not be an adequate remedy. Employee shall not, in
any action or proceeding to enforce any of the provisions of this Agreement,
assert the claim or defense that an adequate remedy at law exists. In the
event of such breach by Employee, the Company shall have the right to enforce
the provisions of Sections 5, 6, and 7 of this Agreement by seeking injunctive
or other relief in any court, and this Agreement shall not in any way limit
remedies of law or in equity otherwise available to the Company.
19.2. The periods of time set forth in Section 7 hereof shall not
include, and shall be deemed extended by, any time required for litigation to
enforce the relevant covenant periods,
-10-
provided that the Company is successful on the merits in any such litigation.
The "time required for litigation" is herein defined to mean the period of
time from the earlier of Employee's first breach of such covenants or service
of process upon Employee through the expiration of all appeals related to such
litigation.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed UNDER SEAL as of the day and year first written above.
Orbit/FR, Inc. Xxxxxx Xxxx
By: [SEAL] [SEAL]
---------------------- ----------------------
Xxxx Xxxxx, Chairman
-11-
