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Exhibit 10.43
EMPLOYMENT AGREEMENT
THIS AGREEMENT is by and between Simula, Inc., an Arizona corporation
(the "Company") and Xxx Xxxxxxx (the "Executive"), dated effective as of
February 1, 2000 (the "Effective Date").
BACKGROUND
The Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued employment and dedication of the
Executive.
The Board has further determined that it is desirable to provide the
Executive with compensation and benefits terms which adequately compensate the
executive for the services he renders to the Company, and, to ensure that such
compensation and benefits are consistent with those of like executives of other
public companies.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
AGREEMENT
1. EMPLOYMENT PERIOD. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the employ
of the Company subject to the terms and conditions of this Agreement, for the
period commencing on the Effective Date and ending on the third anniversary of
such date (the "Employment Period"). Unless terminated by the Company for Cause
(as defined in Section 3.2 below) or by the Executive for Good Reason (as
defined in Section 3.3 below), this Agreement shall be automatically renewed,
under the same terms and conditions, for continuous successive three year terms.
2. TERMS OF EMPLOYMENT.
2.1 Position and Duties.
(a) During the Employment Period, the Executive shall
be employed in an executive capacity in the positions of
Executive Vice-President - Technology of the Company at
Company headquarters in Phoenix, Arizona;
(b) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote full attention and
time during normal business hours to the
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business and affairs of the Company and to use the Executive's
best efforts to perform faithfully and efficiently such
responsibilities.
2.2 Compensation.
(a) Base Salary. The Executive shall receive an
initial annual base salary ("Initial Base Salary") of One
Hundred Sixty Five Thousand Dollars ($165,000). Thereafter,
the Executive's salary and total compensation shall be
reviewed on a periodic basis by the Compensation Committee of
the Board to determine what, if any, increases shall be made
thereto. The base salary payable to the Executive in any given
year, including the Initial Base Salary, is hereafter referred
to as the "Annual Base Salary." Any increase in Annual Base
Salary shall not serve to limit or reduce any other obligation
to the Executive under this Agreement. Annual Base Salary
shall not be reduced after any increase and the term Annual
Base Salary as utilized in this Agreement shall refer to
Annual Base Salary as increased. The Annual Base Salary shall
in all instances be payable in twenty-six (26) equal bi-weekly
installments.
(b) Annual Bonus or Option Plans. In addition to
Annual Base Salary, the Executive shall be eligible to
participate in any applicable Company bonus plan or program or
stock option plan or program in effect immediately prior to
the Effective Date, or put into effect by the Board at any
time thereafter.
(c) Incentive, Savings and Retirement Plans. During
the Employment Period, the Executive shall be entitled to
participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other
executives of the Company, but in no event shall such plans,
practices, policies and programs provide the Executive with
incentive opportunities, savings opportunities and retirement
benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the
Company to other executives of the Company; provided however,
the dollar value awarded Executive in the reasonable
discretion of management need not be equal to that awarded to
all other executives.
(d) 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 welfare benefit plans, practices,
policies and programs provided by the Company (including,
without limitation, medical, prescription, dental, disability,
salary continuance, tuition reimbursement, employee life,
group life, accidental death and travel accident insurance
plans and programs) to the extent applicable generally to
other executives of the Company, but in no event
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shall such plans, practices, policies and programs provide the
Executive with benefits which are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies and programs provided generally at any time after the
Effective Date to other executives of the Company.
(e) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by the Executive in the
conduct of Company business.
(f) Vacation. During the Employment Period, the
Executive shall be entitled to paid vacation in accordance
with the plans, policies, programs and practices of the
Company in all respects as in effect for the Executive during
the 120-day period immediately preceding the Effective Date
or, if more favorable to the Executive, as in effect generally
at any time thereafter with respect to other executives of the
Company.
(g) Tuition for Advanced Degree. Company agrees to
reimburse Employee for tuition and other appropriate costs incurred by
the Employee in pursuing an advanced degree as agreed between Company
and Employee. Reimbursement shall be pursuant to the Company's standard
policy. Employee agrees that in the event he terminates his employment
with the Company other than for Good Reason, or is terminated for
Cause, at any time during the period he is pursuing the advanced
degree, or within one year after receiving such advanced degree,
Employee will refund to the Company in full the amount reimbursed and
paid by the Company to date. Employee's obligation to refund tuition
and costs advanced shall not pertain if Employee's employment is
terminated pursuant to a change of control, as defined in the Change of
Control Agreement of even date herewith.
3. TERMINATION OF EMPLOYMENT.
3.1 Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the
Employment Period. If the Company determines in good faith that any
Disability of the Executive has occurred during the Employment Period
(pursuant to the definition of Disability set forth below), it may give
to the Executive written notice of its intention to terminate the
Executive's employment. In such event, the Executive's employment with
the Company shall terminate effective on the 30th day after receipt of
such notice by the Executive (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's
duties. For purposes of this Agreement, "Disability" shall mean the
absence of the Executive from the Executive's duties with the Company
on a full-time basis for 180 consecutive business days as a result of
incapacity due to mental or physical illness certified by a physician
selected by the Company or its insurers and acceptable to the
Executive.
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3.2 Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean: (i) the willful and continued failure of
the Executive to perform substantially the Executive's duties with the
Company or its affiliates (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand
for substantial performance is delivered to the Executive by the Board
which specifically identifies the manner in which the Board believes
that the Executive has not substantially performed the Executive's
duties, or (ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and demonstrably
injurious to the Company. For purposes of this provision, no act or
failure to act, on the part of the Executive, shall be considered
"willful" unless it is done by the Executive in bad faith.
3.3 Good Reason. The Executive's employment may be terminated
by the Executive for Good Reason at any time within 90 days after the
Executive first has actual knowledge of the occurrence of such Good
Reason. For purposes of this Agreement, "Good Reason" shall mean:
(a) the assignment to the Executive of any duties
that are not of an executive nature, or any other action by
the Company which results in a material diminution in the
Executive's position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(b) any failure by the Company to comply with any of
the provisions of Section 2.2 of this Agreement, other than an
isolated, insubstantial and inadvertent failure not occurring
in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Executive;
(c) the Company's requiring the Executive, without
the Executive's consent and full agreement, to be based at any
office or position other than as provided in Section 2.1(a)
hereof;
(d) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted
by this Agreement; or
(e) any failure by the Company to comply with and
satisfy Section 9.3 of this Agreement.
3.4 Notice of Termination. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by
Notice of Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" means a written notice which:
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(a) indicates the specific termination provision in
this Agreement relied upon;
(b) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment
under the provision so indicated; and
(c) if the Date of Termination (as defined below) is
other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
3.5 Date of Termination. "Date of Termination" means:
(a) if the Executive's employment is terminated by
the Company for Cause, or by the Executive for Good Reason,
the date of receipt of the Notice of Termination or any later
date specified therein, as the case may be;
(b) if the Executive's employment is terminated by
the Company other than for Cause, the date on which the
Company notifies the Executive of such termination; and
(c) if the Executive's employment is terminated by
reason of death or Disability, the date of death of the
Executive or the Disability Effective Date, as the case may
be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
4.1 Good Reason; Other Than for Cause, Death or Disability.
If, during the Employment Period, the Company shall terminate the
Executive's employment other than for Cause or the death or Disability
of the Executive or the Executive shall terminate employment for Good
Reason, the Company shall pay to the Executive in a lump sum in cash
within thirty (30) days after the Date of Termination the aggregate of
the following amounts:
(a) The amount of Annual Base Salary compensation
which would have been payable to the Executive over the period
then remaining under
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this Agreement, as it may have been renewed as provided for in
Section 1 hereof;
(b) Any declared and accrued, but as of then unpaid,
bonus or stock options grant (whether or not vested) to which
the Execute would have received but for such termination.
Additionally, any stock options owned or granted shall be
deemed immediately vested, not forfeitable, and shall be the
property of Executive, exercisable according to their terms
for the balance of the term of years of the options;
(c) Any accrued vacation pay;
(d) Any amounts payable pursuant to the Company's
Defined Benefit Pension Plan, 401(k) plan, including such
amounts which would have accrued (whether or not vested) if
the Executive's employment had continued after the Date of
Termination for the period then remaining under this
Agreement, as it may have been renewed as provided for in
Section 1 hereof;
(e) Any other amounts or benefits required to be paid
or provided or which the Executive is eligible to receive
under any plan, program, policy or practice or contract or
agreement of the Company (such other amounts and benefits
shall be hereinafter referred to as the "Other Benefits");
(f) For the remaining term of this Agreement, as it
may have been renewed pursuant to Section 1 hereof, or such
longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company
shall continue benefits to the Executive and/or the
Executive's family at least equal to those which would have
been provided to them in accordance with the plans, programs,
practices and policies described in Section 2.2(d) of this
Agreement if the Executive's employment had not been
terminated or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other
executives of the Company and their families, provided,
however, that if the Executive becomes re-employed with
another employer and is eligible to receive medical or other
welfare benefits under another employer-provided plan, the
medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during such
applicable period of eligibility, and for purposes of
determining eligibility (but not the time of commencement of
benefits) of the Executive for retiree benefits pursuant to
such plans, practices, programs and policies, the Executive
shall be considered to have remained employed for the
remaining term of this Agreement, as it may have been renewed
pursuant to Section 1 hereof, and to have retired on the last
day of such period; and
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(g) The Company shall, at its sole expense as
incurred, provide the Executive with out-placement services,
the scope and provider of which shall be selected by the
Executive in the Executive's sole discretion (but the total
cost thereof shall not exceed $50,000).
4.2 Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this
Agreement shall terminate without further obligations to the
Executive's legal representatives under this Agreement, other than full
vesting and non-forfeiture of stock options granted to Executive, and
the timely payment or provision of Other Benefits. Such amounts shall
be paid to the Executive's estate or beneficiary, as applicable, in a
lump sum in cash within 30 days of the Date of Termination. With
respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 4.2 shall include, without limitation, and the
Executive's estate and/or beneficiaries shall be entitled to receive,
benefits at least equal to the most favorable benefits provided by the
Company to the estates and beneficiaries of other executives of the
Company under such plans, programs, practices and policies relating to
death benefits, if any, as in effect with respect to other executives
and their beneficiaries at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive's estate and/or the Executive's beneficiaries, as in effect
on the date of the Executive's death with respect to other executives
of the Company and their beneficiaries.
4.3 Disability. If the Executive's employment is terminated by
reason of the Executive's Disability under Section 3.1 during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive, other than for the timely payment or
provision of (i) Base Salary and, (ii) accrued bonus through the
Termination Date, (iii) payment of pension, 401(k), and Other Benefits,
(iv) full vesting and non-forfeiture of stock options, and, (v) the
receipt of fully-paid Welfare Benefit Plans under Section 2.2(d) for
the balance of the term of this Agreement. In addition, Executive shall
be paid for the term of this Agreement at regular pay periods that
equal the difference between his Annual Base Salary and the disability
insurance payment received by the disabled Executive under the
Company's disability insurance program. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section
4.3 shall include, and the Executive shall be entitled after the
Disability Effective Date to receive, disability and other benefits at
least equal to the most favorable of those generally provided by the
Company to disabled executives and/or their families in accordance with
such plans, programs, practices and policies relating to disability, if
any, as in effect generally with respect to other executives and their
families at any time during the 120-day period immediately preceding
the Effective Date or, if more favorable to the Executive and/or the
Executive's family, as in effect at any time thereafter generally with
respect to other executives of the Company and their families.
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4.4 Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Employment Period,
this Agreement shall terminate without further obligations to the
Executive other than the obligation to pay to the Executive: (x) the
Annual Base Salary through the Date of Termination, (y) the amount of
any compensation previously deferred by the Executive, and (z) Other
Benefits, in each case to the extent therefore unpaid. If the Executive
voluntarily terminates employment during the Employment Period,
excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for items (x),
(y) and (z) of this paragraph. In such case, all Accrued Obligations
shall be paid to the Executive in a lump sum in cash within 30 days of
the Date of Termination.
5. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company and for which the Executive
may qualify, nor, subject to Section 10.6, shall anything herein limit or
otherwise affect such rights as the Executive may have under any other contract
or agreement with the Company. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company at or subsequent to the
Date of Termination shall be payable in accordance with such plan, policy,
practice, program, contract or agreement except as explicitly modified by this
Agreement. Executive is currently a party to, and in the future may be a party
to other, employment arrangements, agreements, and incentive plans, including
but not limited to, stock option agreements and a change of control agreement.
This Agreement shall not supersede any of the terms or conditions of such other
agreements. To the extent of any inconsistency in these agreements, the
agreements shall be interpreted and applied in the way to confer upon the
employee the greatest benefits. The agreements shall be read and applied
consistent with each other, but in the event of a conflict, the terms most
favorable to the employee will be applied from the various provisions of the
agreements in the aggregate.
6. FULL SETTLEMENT; LEGAL FEES. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and, except as
specifically provided in Section 4.1(f), such amounts shall not be reduced
whether or not the Executive obtains other employment. The Company agrees to pay
promptly as incurred, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability or entitlement under, any
provision of this Agreement or any guarantee of performance thereof (whether
such contest is between the Company and the
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Executive or between either of them and any third party, and including as a
result of any contest by the Executive about the amount of any payment pursuant
to this Agreement), plus in each case interest on any delayed payment at the
applicable Federal rate ("Applicable Federal Rate") provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
7. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
7.1 Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Executive
(whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard
to any additional payments required under this Section 7) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code
or any corresponding provisions of state or local tax laws, or any
interest or penalties are incurred by the Executive with respect to
such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise
Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by
the Executive of all taxes (including any interest or penalties imposed
with respect to such taxes), including, without limitation, any income
or employment taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
7.2 Subject to the provisions of Section 7.3, all
determinations required to be made under this Section 7, including
whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by Deloitte & Touche LLP or such other
certified public accounting firm as may be designated by the Executive
(the "Accounting Firm"), which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a
Payment, or such earlier time as is requested by the Company.
7.3 The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than
ten business days after the Executive is informed in writing of such
claim.
7.4 If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 7.3, the Executive becomes
entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company's
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complying with the requirements of Section 7.3) promptly pay to the
Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto).
8. CONFIDENTIAL INFORMATION; NONCOMPETITION.
8.1 Nondisclosure. The Executive shall hold in fiduciary
capacity for the benefit of the Company all secret, proprietary or
confidential information, knowledge or data relating to the Company and
its businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company. During the period the
Executive is employed with the Company, and after termination of the
Executive's employment with the Company, the Executive shall not,
without the prior written consent of the Company or as may otherwise be
required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and
those designated by it. The restrictions set forth in this Section 8
will not apply to information which is generally known to the public or
in the trade, unless such knowledge results from an unauthorized
disclosure by the Executive or representatives of the Executive in
violation of this Agreement. This exception will not affect the
application of any other provisions of this Agreement to such
information in accordance with the terms of such provision. All
documents and tangible things embodying or containing confidential
information are the Company's exclusive property. The Executive will
protect the confidentiality of their content and will return all
copies, facsimiles and specimens of them and any other form of
confidential information in the Executive's possession, custody or
control to the Company before leaving the employment with the Company.
8.2 Competition. During the term of the Executive's employment
with the Company, and for a period of eighteen (18) months thereafter
(equal to one-half of the total months of the term of this Agreement),
the Executive will not, directly or indirectly, engage, participate or
invest in or be employed by any business anywhere in the world which:
(a) Develops or manufactures products which are
competitive with or similar to products developed or
manufactured by the Company;
(b) Distributes, markets or otherwise sells products
manufactured by others which are competitive with or similar
to products distributed, marketed or sold by the Company; or
(c) Provides services which are competitive with or
similar to services provided by the Company, including, in
each case, any products or services the Company has under
development or which are the subject of active planning at any
time during the term of the Executive's employment.
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The foregoing restriction shall apply regardless of the
capacity in which the Executive engages or engaged,
participates or participated, or invests or invested in or is
employed by a given business, whether as owner, partner,
shareholder, consultant, agent, employee, co-venturer or
otherwise. In addition, during the term of the Executive's
employment with the Company, and for a period of eighteen (18)
months thereafter, the Executive will not, directly or
indirectly, without the prior written consent of the Company,
hire or solicit for hire with any business any person who is
employed by the Company at such time or was employed by the
Company within the preceding eighteen (18) months. The
provisions of this Section 8 shall not prevent the Executive
from acquiring or holding publicly traded stock or other
publicly traded securities of a business, so long as the
Executive's ownership does not exceed ten percent (10%) of the
outstanding securities of such company of the same class as
those held by the Executive or from engaging in any activity
or having an ownership interest in any business that is
reviewed by the Board of Directors. The Executive understands
that the restrictions set out in this Section 8 are intended
to protect the Company's interest in its secret, proprietary
or confidential information and established customer
relationships and goodwill, and agrees that such restrictions
are reasonable and appropriate for this purpose.
8.3 Damages. The Executive agrees that it would be difficult
to measure any damages caused to the Company which might result from
any breach by the Executive of the promises set forth in this
Agreement, and that in any event money damages would be an inadequate
remedy for any such breach. Accordingly, the Executive agrees that in
the case of breach, or proposed breach, of any portion of this
Agreement, the Company shall be entitled, in addition to all other
remedies that it may have, to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving
any actual damage to the Company. However, in no event shall an
asserted violation of the provisions of this Section 8 constitute a
basis for deferring or withholding any amounts otherwise payable to the
Executive under this Agreement.
9. SUCCESSORS.
9.1 This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assigned by the
Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives.
9.2 This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
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9.3 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
assume expressly 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. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
10. MISCELLANEOUS.
10.1 This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona, without reference to
principles of conflict of laws. The captions of this Agreement are set
forth for convenience only and shall have no separate force or effect.
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.
10.2 All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive: Xxx Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
If to the Company: Simula, Inc.
ATTN: Corporate Secretary
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
10.3 The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement.
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10.4 The Company may withhold from any amounts payable under
this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
10.5 The Executive's or the Company's failure to insist upon
strict compliance with any provision hereof or any other provision of
this Agreement or the failure to assert any right the Executive or the
Company may have hereunder, including, without limitation, the right of
the Executive to terminate employment for Good Reason pursuant to
Section 3.3 of this Agreement, shall not be deemed to be a waiver of
such provision or right or any other provision or right of this
Agreement.
IN WITNESS WHEREOF, pursuant to the authorization from its Compensation
Committee and Board of Directors, the Company has caused this Agreement to be
executed in its name on its behalf, as of the day and year first above written.
SIMULA, INC.
By
Title
/S/ Xxx Xxxxxxx
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Xxx Xxxxxxx
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