EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of December 21,
2005 between Elcom International, Inc. a Delaware corporation (the "Employer"),
and Xxxxxx X. Xxxxxxx (the "Executive").
RECITAL
A. The Executive and the Employer entered into an Amended and Restated
Employment Agreement dated as of June 22, 2002, as amended on March 8, 2004 (the
"Prior Agreement"); and
B. The Employer has determined that it is in its best interests of
U.K. and U.S. corporate governance and best practices to separate the offices of
Chairman and the Chief Executive Officer and to insure the continued employment
of the Executive as the Chairman of the Company by replacing the Prior Agreement
with the terms hereof.
AGREEMENT
In consideration of the foregoing and the mutual promises and
covenants set forth herein, the parties, intending to be legally bound, agree as
follows:
1. Definitions.
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1.
"AFFILIATE(S)" -- means a Person that, directly or indirectly through
one or more intermediaries, controls or is controlled by the Employer.
"AGREEMENT" -- this Employment Agreement.
"SALARY" -- as defined in Section 3.1.
"BENEFITS" -- as described in Section 3.2.
"BOARD OF DIRECTORS" -- means the board of directors of the Employer
unless otherwise stated.
"CAUSE" -- means the occurrence of any of the following events during
the Employment Period: (a) (if so determined by the Board of Directors) the
Executive's indictment for fraud or theft against the Employer or any Affiliate
or any third party; (b) the Executive's deliberate and continuing non-compliance
with written policies of the Employer, or a material breach of this Agreement;
provided the Board of Directors notifies the Executive of the acts deemed to
constitute such continued non-compliance or breach in writing and the Executive
fails to correct such acts (or begin such action necessary to correct such acts
and thereafter diligently pursues the completion thereof) within ten (10)
business days after written notice is given; (c) a conviction or plea of guilty
or nolo contendere to a felony (other than one arising from the operation of a
motor vehicle or resulting from actions taken (or not taken) by the Executive in
good faith in his capacity as an employee or officer of the Employer); or (d)
the Executive's failure to observe and comply with the requirements in Sections
7 or 8 hereof.
"COMPENSATION" -- Salary and Benefits as described in Section 3.
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"CONFIDENTIAL INFORMATION" -- any and all:
(a) trade secrets concerning the business and affairs of the
Employer or any Affiliate, product or service specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current, and planned research and
development, current and planned manufacturing, marketing or distribution
methods and processes, customer lists, prospective customer lists, current and
anticipated customer requirements, price lists, market studies, business plans,
computer software and programs (including object code and source code), computer
software and database technologies, systems, structures, and architectures (and
related formulae, compositions, processes, improvements, devices, know-how,
inventions, discoveries, concepts, ideas, designs, methods and information), and
any other information, however documented, that is a "trade secret" either under
common law or as such term is defined by statute under the laws of any
applicable jurisdiction;
(b) information concerning the business and affairs of the
Employer or any Affiliate (which includes historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer or any Affiliate, containing or based,
in whole or in part, on any information included in the foregoing.
As used herein, "Confidential Information" shall not include any
information that (i) is or becomes generally available to the public other than
as a result of a disclosure by the Executive, or (ii) becomes available to the
Executive on a non-confidential basis from a source other than the Employer
which is not prohibited from disclosing such information to the Executive by a
legal, contractual or fiduciary obligation to the Employer or any other Person.
"EFFECTIVE DATE" -- On the date of the completion of the Placing, (as
defined in the Subscription Letters).
"EMPLOYER" -- as defined on the first page of this Agreement and
itssuccessors and assigns.
"EMPLOYMENT PERIOD" -- that period of time commencing on the Effective
Date and ending on (a) the effective date of the Executive's termination of
employment with the Employer, or (b) the expiration of this Agreement.
"NONCOMPETITION AGREEMENT"-- the agreements and covenants of the
Executive found in Section 8.2.
"NONCOMPETITION PERIOD" -- means the Employment Period plus two (2)
years following the end of the Employment Period, unless this Agreement is
terminated by the Employer without Cause or by the Executive with Good Reason,
in which case the Noncompetition Period means the Employment Period plus one (1)
year following the end of the Employment Period.
"PERSON" -- any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
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"PLACING" -- the proposed placing of the Employer's common shares on
AIM, a market operated by the London Stock Exchange plc, on the terms and
subject to the conditions of the Subscription Letters.
"SUBSCRIPTION LETTERS" -- means the subscription letters relating to
the Placing.
2. Employment Term and Duties.
2.1 Employment. The Employer shall employ the Executive, effective as
of the Effective Date, and the Executive shall accept employment by the
Employer, effective as of the Effective Date, upon the terms and conditions set
forth in this Agreement. The Executive shall report to the Board of Directors.
2.2 Term. Subject to earlier termination pursuant to the provisions of
Section 6, the term of the Executive's employment under this Agreement shall
commence on the Effective Date and continue for one (1) year (the "Initial
Term") and shall automatically renew thereafter for successive one-year periods
(each a "Renewal Term" and, together with the Initial Term, collectively
referred to as the "Term"), unless either party provides the other party with
sixty (60) days advance written notice prior to the expiration of the Initial
Term or a Renewal Term, as the case may be, that either the Employer or the
Executive desires to terminate this Agreement and Executive's employment
hereunder at the conclusion of such Initial Term or a Renewal Term.
2.3 Title. The Executive will serve as Chairman of the Board. -----
3. Compensation.
3.1 Salary. The Employer shall pay to the Executive a base salary at
the rate of Seventy-Two Thousand Dollars ($72,000.00) per year (the "Salary") in
compensation for committing to spending a minimum of one day (or 8 hours over
multiple days) per week on the Company's business. Any time spent in excess of
this must be approved by the Board of Directors. The Executive's Salary will be
paid in periodic installments in accordance with the Employer's customary
payroll practices.
3.2 Benefits. The Executive will, during the Employment Period, be
entitled to participate in such life insurance, hospitalization and medical
plans or insurance coverage, profit sharing, stock options, bonus, vacations and
holidays, disability and other employee benefit plans, programs and policies of
the Employer that may be put into effect from time to time (collectively, the
"Plans"). All of the plans, agreements, and undertakings of the Employer set
forth above shall be called, collectively, the "Benefits." Any Benefits
hereunder shall be subject to such local, state or federal tax reporting
requirements and withholding as may be in effect at any time during the
Employment Period.
4. Facilities and Expenses.
Adequate facilities and equipment shall be supplied to the Executive
as the Employer deems necessary or appropriate for the performance of the
Executive's duties under this Agreement. The Employer will reimburse the
Executive for reasonable business expenses incurred by him on behalf of the
Employer in the performance of his duties; provided, that Executive furnishes to
Employer documentation of such expenses as is required by the Internal Revenue
Service, as well as such other documentation as the Employer may reasonably
request. In addition, the Employer shall reimburse the Executive or otherwise
provide and pay for all approved professional affiliation expenses incurred by
the Executive. The Executive must file authorization requests, to the extent
required by the Employer's employment policies and, in all instances, expense
reports with respect to such expenses in accordance with the Employer's
policies.
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5. Vacations and Holidays.
The Executive will be entitled to four (4) weeks (or otherwise as in
accordance with the Employer's vacation policies) of paid vacation each year
during the Employment Period. Such vacations shall be taken in accordance with
the vacation policies of the Employer in effect for its senior executives from
time to time. Vacations must be taken by the Executive at such time or times as
mutually agreed by the Executive and the Employer. The Executive will also be
entitled to the paid holidays as set forth in the Employer's policies.
6. Termination.
6.1 Events of Termination.
(a) Death. In the event of the Executive's death, his employment
with the Employer shall be deemed terminated as of the end of the month in which
such death occurs.
(b) Termination for Cause. The Executive's employment with the
Employer may be terminated for Cause, as defined herein, at the option of and by
written notice from the Board of Directors.
(c) Termination Without Cause. If the Executive's employment with
the Company terminates for any reason other than for Cause, then the Executive
shall be entitled to a severance payment as defined in 6.2(b). For the avoidance
of doubt, severance payment as defined in 6.2(b) shall be the only remedy
available to the Executive.
(d) Termination for Disability. If the Executive terminates due
to Disability, then the Executive shall continue to receive his salary and all
other benefits for a period of six (6) months.
6.2 Consequences of Termination.
(a) Termination for Cause. If the Executive's employment is
terminated for Cause, the Employer's obligation to pay Executive the
Compensation shall immediately cease upon the effective date of such termination
for Cause. Upon any such termination, all rights, duties and obligations of the
parties hereunder shall thereupon cease, except that the provisions of Sections
7, 8 and 9 hereof shall survive any such termination in their entirety and
continue to be binding upon the parties.
(b) Termination without Cause. If the Executive's employment is
terminated for any reason other than for Cause, upon receipt by the Company of a
release agreement which is duly executed by the Executive and in a form
reasonably acceptable to the Employer, the Executive shall receive an amount
equal to one year's Salary and any accrued Benefits as severance. In addition,
the Executive shall receive health benefits for a period of six (6) months or
until he accepts other full-time employment where he receives equal or better
benefits.
6.3 Definition of Disability. For purposes of this Agreement, the
Executive will be deemed to have a "disability" if (a) the Executive is unable
to perform the essential duties of the Executive's employment, with or without
reasonable accommodation, due to physical incapacity or illness, where such
inability is reasonably expected to be of significant duration (i.e., for at
least one (1) month). In the event of a dispute as to the disability, the
determination of a Disability shall be made reasonably by the Board of Directors
and shall be supported by advice of a physician competent in the area to which
such Disability relates. The Executive must submit to all examinations
determined necessary by the physician making the determination of disability
under this Section 6.3, and the Executive hereby authorizes the disclosure and
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release to the Employer of such determination and all supporting medical
records. If the Executive is not legally competent, the Executive's legal
guardian or duly authorized attorney-in-fact will act in the Executive's stead
for the purposes of submitting the Executive to the examinations, and providing
the authorization of disclosure as required under this Section 6.3.
7. Non-Disclosure Covenant.
7.1 Acknowledgments by the Executive. The Executive acknowledges that
(a) during the Employment Period and as a part of his employment, the Executive
will be afforded access to Confidential Information; (b) public disclosure of
such Confidential Information could have an adverse effect on the Employer and
its business; (c) since the Executive possesses substantial expertise and skill
with respect to the Employer's business, the Compensation provided to Executive
hereunder constitutes good and sufficient consideration for the Executive's
agreements and covenants regarding confidentiality in this Section 7; and (e)
the provisions of this Section 7 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information.
7.2 Confidentiality Covenant. In consideration of the Compensation to
be paid or provided to the Executive by the Employer under this Agreement, the
Executive covenants as follows:
(a) During and at all times following the Employment Period, the
Executive will hold in confidence the Confidential Information and will not
disclose it to any Person except with the specific prior written consent of the
Employer or except as otherwise expressly permitted by the terms of this
Agreement.
(b) Any trade secrets of the Employer will be entitled to all of
the protections and benefits under applicable trade secret laws. If any
information that the Employer deems to be a trade secret is found by a court of
competent jurisdiction not to be a trade secret for purposes of this Agreement,
such information will, nevertheless, be considered Confidential Information for
purposes of this Agreement. The Executive hereby waives any requirement that the
Employer submit proof of the economic value of any trade secret or post a bond
or other security.
8. Non-Competition and Non-Interference.
8.1 Acknowledgments by the Executive. The Executive acknowledges that:
the services to be performed by him under this Agreement are of a special,
unique and unusual character; and (b) the Compensation provided to the Executive
hereunder constitutes good and sufficient consideration for the Executive's
agreements and covenants in this Section 8; and (c) the provisions of this
Section 8 are reasonable and necessary to protect the Employer's business.
8.2 Covenants of the Executive. In consideration of the
acknowledgments by the Executive, and in consideration of the Compensation to be
paid or provided to the Executive by the Employer, the Executive covenants that
he will not, directly or indirectly:
(a) during the Noncompetition Period, (i) engage in competition
with the Employer or any of its Affiliates in the same or similar line of
business as the business conducted by the Employer or any of its Affiliates;
(ii) solicit, divert, take away or attempt to solicit, divert or take away the
business from any customer to whom the Employer or any of its Affiliates has
sold or provided its products or services during the twelve (12) month period
prior to the end of the Employment Period; or (iii) own, operate, control,
finance, manage, advise, be employed or engaged by, perform any services for,
invest in or otherwise become associated in any capacity with, any business,
company, partnership, organization, proprietorship, or other entity, whose
activities compete in whole or in part with the activities of the
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Employer or any of its Affiliates in any geographical area in which the Employer
or any of its Affiliates conducted or conducts its business (a "Competitive
Business") or
(b) engage in any practice the purpose or effect of which is to
intentionally evade the provisions of this covenant; provided, however, that the
Executive may purchase or otherwise acquire up to (but not more than) three
percent (3%) of any class of securities of any Competitive Business (but without
otherwise participating in the activities of such Competitive Business) if such
securities are listed on any national or regional securities exchange or have
been registered under Section 12(g) of the Securities Exchange Act of 1934.
8.3 Enforceability; Notice. If any covenant in Section 8.2 is held to
be unreasonable, arbitrary, or against public policy, such covenant will be
considered to be divisible with respect to scope, time, and geographic area, and
such lesser scope, time, or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding, and enforceable against the
Executive. The period of time applicable to any covenant in Section 8.2 will be
extended by the duration of any violation by the Executive of such covenant. The
Executive will, while the covenant under Section 8.2 is in effect, give notice
to the Employer, within ten (10) days after accepting any other employment, of
the identity of the Executive's employer. The Employer may notify such employer
that the Executive is bound by this Agreement and, at the Employer's election,
furnish such employer with a copy of this Agreement or relevant portions
thereof.
9. General Provisions.
9.1 Injunctive Relief and Additional Remedy. The Executive
acknowledges that the injury that would be suffered by the Employer as a result
of a breach of the provisions of this Agreement (including any provision of
Section 7 and Section 8) would be irreparable and that an award of monetary
damages to the Employer for such a breach would be an inadequate remedy.
Consequently, the Employer will have the right, in addition to any other rights
it may have, at Employer's cost, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief.
9.2 Covenants of Sections 7 and 8 are Essential and Independent. The
covenants by the Executive in Section 7 and Section 8 are essential elements of
this Agreement, and without the Executive's agreement to comply with such
covenants, the Employer would not have entered into this Agreement, offered
employment to the Executive or offered the Executive the Salary and Benefits and
other consideration provided hereunder. The Executive's covenants in Section 7
and Section 8 are independent covenants and the existence of any claim by the
Executive against the Employer under this Agreement or otherwise, or against any
Affiliate of Employer, will not excuse the Executive's breach of any covenant in
Section 7 or Section 8. If the Executive's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
necessary or appropriate to enforce the covenants and agreements of the
Executive in Section 7 and Section 8.
9.3 Representations and Warranties by the Executive. The Executive
represents and warrants to the Employer that the execution and delivery by the
Executive of this Agreement do not, and the performance by the Executive of the
Executive's obligations hereunder will not, with or without the giving of notice
or the passage of time, violate any judgment, writ, injunction, or order of any
court, arbitrator, or governmental agency applicable to the Executive.
9.4 Waiver. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or
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partial exercise of any such right, power, or privilege will preclude any other
or further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement can be discharged by
one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement.
9.5 Binding Effect; Delegation of Executive's Duties Prohibited. This
Agreement shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors, assigns, heirs, and legal
representatives, including any Affiliate to which Employer may assign this
Agreement or any entity with which the Employer may merge or consolidate or to
which all or substantially all of its assets may be transferred. The duties and
covenants of the Executive under this Agreement, being personal, may not be
delegated or assigned.
9.6 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered to the address(es) below, or (b) one business day after
deposit with a nationally recognized overnight delivery service (receipt and
next day delivery requested), in each case to the appropriate addresses set
forth below (or to such other addresses as a party may designate by notice to
the other parties):
If to Employer: Elcom International, Inc.
00 Xxxxxx Xxx
Xxxxxxx, XX 00000
If to Executive: to his address as set forth in the payroll
records of the Employer
9.7 Entire Agreement; Amendments. This Agreement, as it may be amended
from time to time, contains the entire agreement between the parties with
respect to the subject matter hereof and replaces or supersedes any previous
agreements (written or oral), letters, offers, term sheets or other
communication between the Employer and the Executive on such subject matter.
This Agreement may not be amended orally, but only by an agreement in writing
signed by the parties hereto.
9.8 Governing Law; Venue and Jurisdiction. This Agreement shall be
governed by and construed under Massachusetts law, without regard to conflict of
laws principles. The parties agree that any lawsuit between them arising under
this Agreement shall be filed in any state court located in Norfolk County,
Massachusetts, and each of the parties hereby agrees, acknowledges, waiving any
and all objections, and submits itself to the exclusive jurisdiction and venue
of such courts for the purposes of such lawsuit and agrees to accept service of
process in accordance with the provisions for delivery of notice set forth in
Section 9.6 hereof.
9.9 Section Headings; Construction. The section headings in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement unless otherwise specified.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
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9.10 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Employment Agreement as of the date first written above.
ELCOM INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Its: Vice Chairman and Director
("Employer")
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
XXXXXX X. XXXXXXX
("Executive")
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