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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
(XXXXX XXXXXX)
This Employment Agreement (the "Agreement") is made to be effective as
of the 1st day of May, 1997, by and between XXXXX XXXXXX, whose address is 0000
XX 000xx Xxxxxxx, Xxxxx, Xxxxxxx 00000 ("You" or the "Executive"), and
INTERNATIONAL SYSTEMS & ELECTRONICS CORPORATION, a Delaware corporation with its
principal office at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx (the "Company" or
"ISE"). Where appropriate in the context, the term "Company" shall also mean and
include the Company and its, parents, subsidiaries and affiliates.
In consideration of the mutual agreements and promises hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company agrees to employ You and You agree
to serve as an employee of the Company upon the following terms and conditions:
1. Condition Precedent.
This Agreement and the parties respective rights and
obligations set forth herein are conditioned in their entirety
on the filing of Certificates of Merger in the States of
Delaware and Florida by Bristol Technology Systems, Inc., a
Delaware corporation ("Bristol"), pursuant to which
International Systems & Electronics Corporation, a Florida
corporation ("ISE-FLA"), shall merge with and into Company,
formerly known as Bristol Merger Corporation, a Delaware
corporation ("BMC").
2. Term.
Subject to the other terms and conditions of this
Agreement, the initial term of Your employment hereunder (the
"Term") shall be for the five (5) year period commencing May
1, 1997 and ending April 30, 2002, unless earlier terminated
in accordance with this Agreement. Following the expiration of
the Term, this Agreement may be extended for an additional
period of time by the mutual agreement of the parties;
provided, however, You expressly acknowledge and agree that
all compensation and bonus provisions under any extension of
this Agreement shall be renegotiated by the parties.
Notwithstanding the foregoing, Your obligations under Sections
8(b) and 9, below, shall survive the expiration or termination
of this Agreement or any extension thereof.
3. Position; Duties; etc.
(a) Your title shall be President and it shall be Your
responsibility to perform all functions generally appropriate
to such position at all times in a lawful and professional
manner which reflects positively upon the Company and serves
its best interests, and such other reasonable duties as may be
assigned by the Company's Board of Directors (the "Board"). In
this capacity, You shall report to the Board. You shall
perform substantially all of Your duties, at the Company's
sole and exclusive discretion, at the Company's office located
at the address set forth above. The Company, however, reserves
the right from time to time to change the person(s) to whom
You report, as may be necessary or appropriate and in the best
interests of the Company.
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(b) You shall, to the best of Your abilities,
effectively, diligently, in good faith and with integrity,
devote Your full time, attention, energy and skill to the
fulfillment of Your duties hereunder and shall at all times be
promotive and supportive of the Company, its products,
services, management and other employees, at a level of
competence and effectiveness consistent with the position
occupied.
(c) You shall be subject to and will comply with such
policies and procedures as are from time to time established
for employees of the Company generally, except to the extent
that such policies or procedures are inconsistent with the
express terms of this Agreement, and in those instances, the
terms of this Agreement shall control.
(d) You shall carefully monitor all aspects of the
business, properties and affairs of the Company. Without
limiting the generality of the foregoing, it shall be Your
duty to notify the Board promptly upon becoming aware of any
matter which constitutes or which might constitute a breach of
any of Your representations, warranties or covenants under
that certain Agreement and Plan of Merger, dated March 26,
1997, by and among Bristol, BMC, ISE-FLA and You (the "Merger
Agreement"). Nothing herein shall in any manner be construed
to limit the duties and obligations that You have as an
officer of the Company under applicable State law or the
applicable articles of incorporation or bylaws of the Company.
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4. Compensation and Benefits
(a) Salary. As remuneration for Your services and
provided You remain employed and are fulfilling Your duties
hereunder, during the Term the Company will pay You, in
accordance with Company policies, an annual gross salary of
One Hundred Fifty Thousand Dollars ($150,000). Such salary
shall be payable in arrears in substantially equal
installments on the Company's regular pay days, less any
withholding of tax or any amounts required by law to be
withheld and less any payments for fringe benefits or payments
and contributions as may otherwise be authorized by You or
required under employee benefit plans maintained from time to
time by the Company.
(b) Bonus. With respect to each year of the Term, and
provided, in the sole discretion of the Board, You have been
employed and have satisfactorily performed Your duties during
the entire year, You shall be eligible to earn the following
annual bonus payments, determined as of the end of Company's
fiscal year and payable within thirty (30) days after then end
of such fiscal year:
First, to the extext that the Company's pre-tax
profits exceed Two Hundred Thousand Dollars ($200,000) (the
"Baseline"), then You shall earn a bonus (the "First Bonus")
equal to this excess up to a maximum total of $ 100,000;
provided, however, that the First Bonus is subject to
reduction in accordance with Section 1.5(b) of the Merger
Agreement; If pre-tax profits are not sufficient in a year to
yield the One Hundred Thousand sum, then this deficiency shall
be carried forward into subsequent years where it may be paid
provided that the Company's pre-tax profits are suffiently in
excess of Two Hundred thousand dollars to satisfy that year's
obligation and the prior year deficiency. If You do not
receive Five Hundred Thousand Dollars ($500,000) in bonus
payments under this First Bonus during the Term, then the
First Bonus shall continue under any agreed to extension of
the Term, provided that Company reserves the right to increase
the Baseline under such extension;
Second, if the Company's pre-tax profits exceed Two
Hundred Thousand Dollars ($200,000) (the "Baseline"), then You
shall earn a bonus equal to twenty-five percent (25%) of the
amount of pre-tax profits in excess of the Baseline (the
"Second Bonus");
Third, if, during the Term, pre-tax profits in excess
of the Baseline exceed, in the aggregate, Two Million Six
Hundred Sixty-Six Thousand Six Hundred Sixty-Six Dollars and
Sixty-Seven Cents ($2,666,666.67), then Your right to receive
payments under the Second Bonus shall terminate and You shall
thereafter be entitled to a bonus equal to One Hundred Percent
(100%) of pre-tax profits in excess of the Baseline (the
"Third Bonus"). If this Third Bonus is activated during the
Term but You do not receive Five Hundred Thousand Dollars
($500,000) in bonus payments under this Third Bonus during the
Term, then the Third Bonus shall continue under any agreed to
extension of the Term, provided that Company reserves the
right to increase the Baseline under such extension; and
Fourth, if, during the Term or any extension
thereof, You receive, in the aggregate, Five Hundred Thousand
Dollars ($500,000) in bonus payments under the First Bonus,
then Your right to receive payments under the First Bonus
shall terminate.
Fifth, if, during the Term or any extension thereof,
You receive, in the aggregate, Five Hundred Thousand Dollars
($500,000) in bonus payments under the Third Bonus, then Your
right to receive payments under the Third Bonus shall
terminate and Your right to receive payments under the Second
Bonus shall be reinstated.
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For purposes of this Section 4(b), the term "pre-tax profits"
shall mean earnings before income taxes, calculated in
accordance with generally accepted accounting principles and
specifically reduced by (i) any interest expense of Company,
whether external or inter-company; and (ii) with respect to
the Second and Third Bonus, the amount of the First Bonus.
(c) Partial Employment Period. The above salary and
bonus payments shall be pro rated for any partial employment
period.
(d) Resolution of Compensation Disputes. Any dispute
arising between the parties hereto in connection with the
compensation and bonus provisions of this Section 4, including
but not limited to the manner in which the bonus payments are
calculated, which dispute involves an amount less than
$10,000, shall be determined and resolved by the Vice
President of Finance of Bristol, and such determination and
resolution shall be binding on both parties. Any other dispute
in connection with the compensation and bonus provisions of
this Section 4, which cannot be resolved between the parties,
shall be resolved by binding arbitration.
5. Expenses.
The Company shall reimburse You for all reasonable,
ordinary and necessary travel (except normal travel between
home and office) and other out-of-pocket expenses incurred by
You for the purpose of and in connection with performing Your
duties, subject to proper submission of substantiating
documentation, and subject further to all Company policies
respecting expense reimbursement, as the same may vary from
time to time.
6. Employee Benefit Programs.
(a) Benefit Programs. You shall be entitled to
participate in or receive benefits under all benefit programs,
arrangements or perquisites which the Company maintains
generally from time to time for its executive employees.
(b) Vacation. You shall be entitled to four (4) weeks of
paid vacation per year during the Term.
7. Consequences of Termination of Employment.
(a) Death/Disability. In the event of Your death during
the Term, Your employment hereunder shall be terminated as of
the date of Your death and Your designated beneficiary, or, in
the absence of such designation, Your estate or other legal
representative (collectively, the "Estate") shall be paid Your
unpaid salary through the date occurring on the earlier of
three (3) months from the date of death or the expiration of
the Term. Other death benefits that do not overlap the
foregoing will be determined in accordance with the terms of
the Company's benefits programs and plans maintained from time
to time by the Company for its executive employees. In the
event You are mentally or physically disabled for a period of
four or more consecutive months ("disability" being defined as
a mental or physical impairment or condition which
substantially and effectively prevents You from performing
Your duties hereunder), or for any 120 days during any twelve
month period during the Term, Your employment may be
terminated on written notice to You. In such event, Your
salary shall be continued for a period of two (2) months
following the effective date of termination. Other than the
salary set forth in this Section 7(a), You or Your estate
shall not be entitled to any other payment or benefit by
reason of Your death or disability.
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(b) Termination of Employment by the Company for Cause.
The Company shall have the right to terminate Your employment
and this Agreement for "Cause" and nothing herein, or in any
other agreement between You and the Company shall prevent the
Company from terminating Your employment for "Cause." In the
event You are terminated for "Cause," You shall be paid Your
salary through the date of termination and You shall be
entitled to those rights and benefits You may have earned
through the date of termination in respect of benefits under
any employee benefit plans or programs of the Company
maintained from time to time by the Company for its executive
employees as determined in accordance with the terms of such
plans or programs, as the case may be.
(c) Cause Defined. The Company shall have "Cause" to
terminate Your employment hereunder prior to the end of the
Term (or any extension thereof) for:
(i) Gross negligence, willful misconduct, or breach
of fiduciary duty to the Company;
(ii) If the Company fails to achieve for any (2)
consecutive quarters certain quarterly performance
criteria (A) reasonably set by the Board of Directors
of the Company at the beginning of each fiscal year,
and (B) based upon the Company's performance in the
prior fiscal year, which failure is not cured within
the four (4) month period immediately following the
second consecutive quarter;
(iii) Drug or alcohol use or addiction which
materially interferes with the performance of Your
duties at any time;
(iv) Illegal, immoral or dishonest conduct;
(v) Your breach or failure to perform any of the
provisions of this Agreement, the Merger Agreement,
ancillary or related agreements thereto, or any
present or future agreement between You and the
Company respecting non-competition or the ownership
or protection of confidential information,
inventions, patents, trademarks, copy-rights or other
intellectual properties; and
(vi) Your voluntary termination of employment prior
to expiration of the Term.
8. Covenants Regarding Confidential Information and Proprietary
Rights.
(a) Confidential Information Defined. As used herein,
"Confidential Information" means all proprietary information,
trade secrets and any non-public information, oral and
written, and any document or media containing such
information, concerning the Company or used by the Company in
the operation of its business, including, without limitation,
any of the Company's actual or prospective customers,
suppliers, contractors and co-venturers or concerning any
actual or planned discoveries, inventions, developments,
improvements, technology, know-how, processes, products,
services, businesses, business opportunities, operations,
activities or plans of or belonging to the Company (including,
without limitation, technical formulae and designs, computer
hardware and software, databases, original works of
authorship, customer lists, bills of material, business plans,
financial information, trade secrets and other proprietary
information); provided, however, that Confidential Information
shall not include such portion of the aforesaid information
which has become of hereafter becomes public knowledge within
the business equipment industry through no fault of Your own.
(b) Confidentiality. It is understood and agreed that
prior to and during the Term You have, and will become aware
of, Confidential Information, the unauthorized disclosure of
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which may harm the Company. Accordingly, You agree that,
except as expressly authorized by the Company or as reasonably
necessary in order to fulfill Your duties under this
Agreement, both during and after the Term, You will never
communicate, divulge or use for the benefit of Yourself or any
other person or entity, directly or indirectly, any
Confidential Information discovered, conceived of, or
disclosed, communicated or in any manner obtained by You or
coming into Your possession prior to or during the Term. Upon
termination of this Agreement for whatever reason or whenever
requested by the Company, You will promptly deliver to the
Company, and shall retain no copies of, all documents, media,
records or other materials containing Confidential Information
which are in Your possession or under Your control. Further,
You agree that You will not, during Your employment with the
Company, improperly use or disclose any proprietary
information or trade secret of any former or concurrent
employer, and that You will not bring onto the premises of the
Company any unpublished document or any property belonging to
any such former or concurrent employer unless consented to in
writing by such former or concurrent employer.
(c) The Company. For purposes of this Section 8, the
term "Company" shall include any parent, subsidiary,
affiliated company or business predecessor to the Company.
9. Covenant Not to Compete.
For a period of three (3) years from and after the expiration
or earlier termination of this Agreement, within the state of
Florida (the "Territory"), You shall not: (i) directly or
indirectly enter into the employ of, or render any service to,
or act in concert with, any person, partnership, corporation
or other business entity (other than the Company or its
Affiliates) engaged in any business or in the rendering of any
service of the type being conducted or rendered by the Company
at any time during the Term (a "Competitive Business"); or
(ii) directly or indirectly engage in any such Competitive
Business on Your own account; or (iii) become interested in
any such Competitive Business, directly or indirectly, as an
individual, partner, shareholder, director, officer,
principal, agent, employee or in any other relationship or
capacity; provided, that the purchase of a publicly traded
security of a corporation, partnership or other entity
engaged, or which becomes engaged, in such business or service
shall not in itself be deemed violative of this Agreement so
long as You do not own, directly or indirectly, more than 1%
of the securities of such corporation, partnership or other
entity. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this
Section 9 is invalid or unenforceable, the parties agree that
the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific
words or phrases, or to place any invalid or unenforceable
term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this
Agreement shall be enforceable as so modified after the
expiration of the time within which the judgment may be
appealed. You expressly agree that the running of the
restricted period of competition shall be tolled for any
period during which You are in breach of the covenants set
forth in this Section 9.
10. Equitable Relief.
You expressly agree that the Company may not be
adequately compensated by damages for a breach by You of any
of the covenants contained in Sections 8 and 9, above, and
further agree that, in the event of a breach or threatened
breach by You of any provision of Section 8 or 9, above, the
Company shall be entitled to enforce the covenants contained
in Section 8 or 9, above, by specific performance and to
enjoin or restrain any such breach or threatened breach
(without the necessity of posting a bond or other security in
any action
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initiated for such relief), but nothing herein shall be
construed as prohibiting the Company from pursuing any remedy
available to the Company for such breach or threatened breach.
11. Notices.
Any notice to be given under this Agreement by either
party shall be in writing and hand delivered (by courier or
otherwise) or mailed via first class mail and by certified or
registered mail with return receipt requested, and addressed
to the other party at its address at the head of this
Agreement or at such other address as such other party shall
have given notice to the first party in accordance with the
provisions of this Section.
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12. Non-Waiver of Rights.
The failure to enforce, at any time, any of the
provisions of this Agreement or to require, at any time,
performance by the other party of any of the provisions hereof
shall in no way be construed to be a waiver of such provisions
or to affect either the validity of this Agreement, or any
part hereof, or the right of either party thereafter to
enforce each and every provision in accordance with the terms
of this Agreement. Any waiver of any provision of this
Agreement shall be valid only if in writing signed by the
party so waiving, and no waiver of a provision hereof in any
given instance shall operate as a waiver of such provision in
any other instance or the waiver of any other provision of
this Agreement.
13. Severability.
The invalidity or inability to enforce any particular
provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in
all respects as if such invalid or unenforceable provision
were omitted.
14. Assignment.
This Agreement shall be binding upon, and shall inure
to the benefit of, You and the Company and their respective
executors, administrators, heirs, successors and permitted
assigns. This Agreement shall not be assignable by You, in
whole, or in part, without the written consent of the Company.
15. Governing Law.
The validity, interpretation and construction hereof
shall be governed by and construed and enforced in accordance
with the laws of the State of Florida, excepting any rule
thereof which would refer such matters to the law of any other
jurisdiction.
16. Miscellaneous.
This Agreement embodies the entire agreement of the
parties with respect to the matters within its scope and
supersedes any prior oral or written agreements and
understandings of the parties respecting same. This Agreement
shall not be modifiable except in writing signed by both
parties hereto, and the provisions hereof shall override any
contrary or conflicting provisions in any acknowledgment,
invoice or other document unilaterally issued by either party.
The headings contained in this Agreement have been inserted
solely for convenience of reference and shall be of no force
or effect in the construction or interpretation of the
provisions of this Agreement. This Agreement may be executed
in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument. The remedies available to the Company for
breach of this Agreement shall be cumulative, and nothing
herein shall prevent the Company from pursuing any such
remedies, whether inconsistent or otherwise.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized representative, and You have
signed this Agreement, to be effective as of the day and year first above
written.
____________________________________________
Xxxxx Xxxxxx
INTERNATIONAL SYSTEMS &
ELECTRONICS CORPORATION, a Delaware
corporation
By:_________________________________________
Its:________________________________________
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