EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), dated as of January
31, 2003 between TVI Corporation, a Maryland corporation (the "Employer"), and
Xxxxxxx X. Xxxxxx (the "Executive").
In consideration of the Executive's agreement to provide services under
this Agreement and the mutual agreements set forth below, the receipt and legal
sufficiency of which are hereby acknowledged, the Employer and the Executive
agree as follows:
SECTION 1. Employment Relationship.
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(a) Employment by Employer.
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(i) The Employer hereby employs the Executive, and the Executive
hereby agrees to be employed by the Employer, as President and Chief
Executive Officer of Employer. During the Executive's employment with the
Employer, the Executive shall report directly to the Board of Directors of
the Employer (the "Board"). The Executive agrees to abide by the rules,
regulations, instructions, personnel practices and policies of the Employer
and any changes therein which may be adopted from time to time by the
Employer. The Executive acknowledges receipt of copies of all such rules
and policies committed to writing as of the date of this Agreement.
(ii) The Executive shall do and perform all services and acts
necessary or advisable to fulfill the duties and responsibilities as are
commensurate and consistent with the Executive's position and such other
services as reasonably requested by the Board (the "Services"). The
Executive agrees to devote all of the Executive's working time, attention
and efforts to the Employer and to perform the duties of the Executive's
position in accordance with the Employer's policies as in effect from time
to time; provided that, the Executive shall be permitted to engage in such
limited and non-competitive outside business activities that do not
interfere with the performance of his duties hereunder only as may be
approved by the Board in advance in accordance with the business and
ethical standards of the Company adopted from time to time. The Executive's
principal place of employment shall be the Employer's offices located in
the Glenn Dale, Maryland area.
(b) Employment Period.
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(i) Subject to earlier termination as set forth herein, the period
commencing on January 1, 2003, and ending on December 31, 2005 (such
three-year term being referred to as the "Initial Term"). Notwithstanding
anything to the contrary contained in the preceding sentence, this
Agreement shall be automatically renewed for successive one-year terms
(each such one-year term a "Renewal Term"), unless sooner terminated in
accordance with the provisions hereof, or unless either party gives to the
other party written notice of intent not to renew the Agreement at least
ninety (90) days prior to the end of the Initial Term or any Renewal Term.
For the purposes of this Agreement, the Initial Term and each Renewal Term
shall collectively be referred to as the "Employment Period."
(ii) Executive agrees and acknowledges that the Employer has no
obligation to extend the Employment Period, and Executive expressly
acknowledges that no promises or understandings to the contrary have been
made or reached. Executive also agrees and acknowledges that, should the
Employer choose to continue Executive's employment for any period of time
after the expiration of the Employment Period, Executive's employment with
the Employer, unless otherwise agreed by the parties, will be "at will." In
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other words, during any time following the expiration of the Employment
Period, unless otherwise agreed by the parties, the Employer may terminate
Executive's employment at any time, with or without reason and with or
without notice, and Executive may resign at any time, with or without
reason and with or without notice. All references herein to the term of
this Agreement shall refer to the Initial Term, the Renewal Term and any
successive term as the context logically requires.
SECTION 2. Compensation and Benefits.
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During the Employment Period:
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(a) Annual Compensation. The Employer shall pay to the Executive an annual
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compensation, consisting of salary and bonus as set forth herein. Payment and
calculation shall be as follows:
(i) Annual Base Salary. For each fiscal year of the Employment Period
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the Employer shall pay the Executive an annual base salary of One Hundred
Fifty Thousand Dollars ($150,000.00), subject to annual increase, as
determined in the sole discretion of the Board; provided that, such annual
increase will be no less than five percent (5%) (the "Base Salary"). Base
Salary shall be payable in accordance with the Employer's payroll
practices, as in effect from time to time.
(ii) Annual Bonus. The Executive shall be eligible to receive an
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annual performance-based bonus to be calculated and awarded in accordance
with Schedule A, attached hereto (the "Annual Bonus").
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(b) Stock Options/Awards. Executive shall participate in all stock option
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plans and other equity programs maintained by Employer for which he is eligible,
including the Employer's Amended and Restated 1998 Incentive Stock Option Plan
(the "Plan") for Board members and key employees. Specifically, each year during
the term, Executive shall be entitled to participate and receive the maximum
number of incentive stock options granted to "key employees" under the Plan.
Additionally, for so long as the Executive remains a member of the Board, he
shall be entitled to receive the standard director compensation as in effect
from time to time for Board members including, without limitation, stock
options/awards and Board attendance fees. Additionally, the Board may, in the
exercise of its sole discretion, grant Executive additional stock options and
other equity awards from time to time.
(c) Benefits. During the Employment Period, the Executive shall be entitled
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to participate in any welfare, health and life insurance and pension benefit and
incentive programs as may be adopted from time to time by the Employer in
accordance with the plans, policies, programs and practices of the Employer
applicable to similarly situated employees of the Employer; provided that, such
benefits will include long term disability insurance covering 60% of Executive's
Base Salary up to age 65.
(d) Reimbursement for Business Expenses. The Employer shall reimburse the
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Executive for all reasonable and necessary business expenses incurred by the
Executive in performing the Executive's duties for the Employer, on the same
basis as similarly situated employees and in accordance with the Employer's
policies as in effect from time to time. At Executive's option, Executive shall
either receive a monthly automobile allowance of $350 or be reimbursed for
mileage driven in connection with his duties hereunder at the maximum rate then
established by the Internal Revenue Service (currently $0.36/mile).
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SECTION 3. Termination.
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(a) Death or Disability. If the Executive dies during the Employment
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Period, the Employment Period shall terminate as of the date of the Executive's
death. Similarly, the Employment Period shall terminate as of the date of the
Executive's Disability. For purposes of this Agreement, the term "Disability"
shall mean: (i) when Executive is determined to be totally disabled under the
terms of any disability income insurance policy maintained by the Employer for
the benefit of Executive; (ii) Executive's inability, because of mental or
physical impairment, to perform his duties under this Agreement for a period in
excess of ninety (90) consecutive days, or (iii) Executive's inability, because
of mental or physical impairment, to perform his duties under this Agreement for
a period in excess of one hundred eighty (180) days in any consecutive twelve
(12) month period, if, in the case of either (ii) or (iii), a duly licensed,
actively practicing physician reasonably acceptable to the Employer certifies in
a written medical opinion and with reasonable medical certainty that Executive
is and will continue to be unable to perform his regular full-time employment
duties with the Employer for a period of six (6) months after the commencement
date of such disability. During any period prior to such termination during
which the Executive is absent from the full-time performance of the Executive's
duties with the Employer due to Disability, the Employer shall continue to pay
the Executive's Base Salary at the rate in effect at the commencement of such
period of Disability, offset by any amounts payable to the Executive under any
disability insurance plan or policy provided by the Employer.
(b) Cause. The Employer, at its option, may terminate the Employment Period
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and all of the obligations of the Employer under this Agreement for Cause at
anytime. The Employer shall have "Cause" to terminate the Executive's employment
hereunder in the event of: (i) the Executive's conviction of, plea of guilty or
nolo contendere to, or admission that he has committed a felony, (ii) the
Executive's willful or gross neglect of the material duties required by this
Agreement, (iii) the Executive's failure to perform his duties ably and
competently; (iv) the Executive's willful misconduct in the performance of the
Services, or (v) Executive's breach of the provisions of Section 4 and/or 5 of
this Agreement; provided that, in the case of an event described in clause (ii)
or clause (iii) above, that (A) the Executive has received written notice of the
specific claimed deficiencies and has had an opportunity to discuss such matters
at a meeting of the Board, and (B) the Executive has not cured such action to
the satisfaction of the Board within thirty (30) days after meeting with the
Board.
(c) Termination by Executive for Good Reason. The Executive may terminate
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this Agreement upon thirty (30) days prior written notice to the Employer that
Good Reason (as defined below) has occurred, with such notice setting forth the
basis therefor, if the basis for such Good Reason is not cured within such
30-day period after written notice. "Good Reason" means: (i) the failure of the
Employer to pay any amounts due under this Agreement, other than amounts
disputed in good faith with the basis for such dispute set forth by the Employer
in writing, (ii) a substantial diminution in the material status, title,
position or responsibilities of the Executive, other than for Cause, (iii) the
requirement that the Executive engage in any unlawful act or act of dishonesty,
fraud or deception in the course of his employment, or (iv) Executive's
relocation to a facility or location more than fifty (50) miles from the
Employer's current facility.
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(d) Payment in the Event of Termination.
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(i) Basic Termination Payment. Upon the termination of the Employment
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Period at any time for any reason, the Employer shall pay to the Executive
or his estate any accrued and unpaid compensation (together with any
interest or earnings thereon) that has not yet been paid; provided that, in
the event of termination of the Employment Period due to Executive's death,
Employer shall pay to Executive's surviving heirs a lump sum payment equal
to three (3) months of the then-current Base Salary within sixty (60) days
of the date of death, in addition to any other death-related benefits the
Employer may provide.
(ii) Standard Involuntary Termination Payment. Subject to Section
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3(d)(iii) hereof, following the termination of the Employment Period at any
time either by the Employer without Cause or by the Executive for Good
Reason, the Employer shall continue to provide to the Executive both: (A)
Executive's Base Salary, and (B) all benefits otherwise to be provided
under Section 2(c) hereof had employment not terminated for a period equal
to the remaining balance of the Employment Period.
(iii) Involuntary Termination Payment Following a Change of Control.
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Notwithstanding the foregoing, in the event of the termination of the
Employment Period within the one (1) year period following a Change of
Control (as hereinafter defined) either by the Employer without Cause or by
the Executive for Good Reason, the Employer shall continue to provide to
the Executive both: (A) the Executive's Base Salary and (B) continuation of
all benefits otherwise to be provided under Section 2(c) hereof had
employment not terminated for a period equal to the greater of: (1) the
Employment Period then remaining, or (2) a twelve (12) month period.
Additionally, in such an event, Executive shall be entitled to receive an
Annual Bonus for the year during which such termination occurred
notwithstanding that Executive is not employed by Employer on the Bonus
Payment Date. In such an event, the Annual Bonus shall be pro rated and
calculated based upon the number of full months actually worked by the
Executive.
(iv) "Change of Control" Defined. For purposes of this Agreement, a
"Change of Control" means: (a) the sale of all or substantially all of the
assets of the Employer, (b) the dissolution or liquidation of the Employer,
or (c) any merger, share exchange, consolidation or other reorganization or
business combination of the Employer if immediately after such transaction
either: (1) persons who were directors of the Employer immediately prior to
such transaction do not constitute at least a majority of the directors of
the surviving entity, or (2) persons who hold over fifty percent (50%) of
the voting capital stock of the surviving entity are not persons who held
voting capital stock of the Employer immediately prior to such transaction.
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SECTION 4. Confidentiality; Non-Disclosure.
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(a) Confidentiality.
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(i) Non-Disclosure Obligation. The Executive acknowledges that while
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employed by the Employer, the Executive will occupy a position of trust and
confidence. The Executive shall not disclose to others or use, whether
directly or indirectly, any Confidential Information regarding the Employer
or any of its subsidiaries; provided. However, that this Section 4(a)(i)
shall not apply to any disclosure: (A) required to perform the Executive's
duties hereunder; (B) required by applicable law; or (C) of information
that shall have become public other than by the Executive's authorized
disclosure. "Confidential Information" means all "Developments" (as defined
below) and all information about the Employer or any of its subsidiaries,
and their clients and customers that is not disclosed by the Employer or
any of its subsidiaries in the ordinary course of business and that was
learned by the Executive in the course of employment by the Employer or by
the Executive in the course of employment by any of its subsidiaries,
including (without limitation) any proprietary knowledge, trade secrets,
data, formulae, information and client and customer lists, prospects lists,
pricing information, quotations, budgets, proposals, existing or
contemplated services or products, research, financial, marketing and
operational plans, proposals and strategies and all papers, resumes, and
records (including computer records) of the documents containing such
Confidential Information. The Executive acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the
Employer and its subsidiaries, and that such information gives the Employer
and its subsidiaries a competitive advantage. The Executive agrees to
deliver or return to the Employer, at the Employer's request at any time or
upon termination or expiration of the Executive's employment or as soon
thereafter as possible, all documents, computer tapes and disks, records,
lists, data, drawings, prints, notes and written information (and all
copies thereof) furnished by the Employer and its subsidiaries or prepared
by the Executive in the course of the Executive's employment by the
Employer and its subsidiaries. As used in this Agreement, "subsidiaries"
means any company controlled by the Employer.
(ii) Compulsory Disclosures. If the Executive is requested or (in the
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opinion of his counsel) required by law or judicial order to disclose any
Confidential Information, the Executive shall provide the Employer with
prompt notice of any such request or requirement so that the Employer may
seek an appropriate protective order or waiver of the Executive's
compliance with the provisions of this Section 4(a).
(b) Intellectual Property. Executive agrees that all innovations,
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inventions, discoveries, developments, improvements, works of authorship and
computer programs and related documentation that are made, conceived of or first
reduced to practice by him/her, either solely or jointly with others while
employed by the Employer as a result of tasks assigned to Executive by the
Employer, or from the use of premises or property owned, leased or contracted
for by the Employer (collectively, the "Developments"), and any and all
intellectual property and other proprietary rights relating thereto whatsoever,
whether patented, copyrighted, maintained as a trade secret, registered,
recorded or otherwise protected (collectively, the "Intellectual Property"),
will be the sole and exclusive property of the Employer. Executive shall
promptly disclose to the Employer all Developments, and Executive shall have no
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claim for additional compensation for the Developments or Intellectual Property.
Executive shall execute such instruments as may be requested by the Employer to
confirm the Employer's ownership of all Intellectual Property described, and
shall, at the Employer's expense, provide all reasonable assistance in the
application, preparation, filing, prosecution and maintenance of any protections
relating to such property, or such other actions as may be required to perfect
the Employer's interest in such property.
SECTION 5. Non-Competition; Non-Solicitation.
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(a) Executive acknowledges and recognizes his possession of Confidential
Information and acknowledges the highly competitive nature of the business of
the Employer and accordingly agrees that, in consideration of the premises
contained herein, he will not, during the Employment Period and for one (1) year
after the date of termination of his employment for any reason, either
individually or as an officer, director, stockholder, member, employee, partner,
agent, consultant or principal of another business firm (other than as a passive
shareholder of a company in which the Executive owns less than five percent
(5%)): (i) engage in any business which competes directly with Employer with
respect to the Employer's services and products, (ii) solicit to perform for any
Customer or Prospective Customer, or (iii) perform for any Customer or
Prospective Customer, for the purpose of providing services or products of a
nature or kind similar to those provided by the Employer, or proposed to be
provided by the Employer, to any Customer or Prospective Customer. "Customer"
means any entity that has purchased products or services from the Employer at
any time within two (2) years prior to the termination of Executive's
employment, and "Prospective Customer" means any entity either identified by the
Employer for solicitation for products or services, or solicited by the
Employer, any time within one (1) year prior to the Executive's termination.
(b) The Executive recognizes that he will possess confidential information
about other employees of the Employer and its subsidiaries relating to their
education, experience, skills, abilities, compensation and benefits, and
inter-personal relationships with suppliers to and customers of the Employer and
its subsidiaries. The Executive recognizes that the information he will possess
about these other employees is not generally known, is of substantial value to
the Employer and its subsidiaries in developing their respective businesses and
in securing and retaining customers, and will be acquired by Executive because
of Executive's business position with the Employer. Executive agrees that during
the Employment Period or for one (1) year after the date of termination of his
employment, Executive will not, directly or indirectly, hire, recruit, solicit
or induce, or attempt to hire, recruit solicit or induce, any employee of the
Employer for the purpose of being employed or otherwise engaged by Executive or
by any business, individual, partnership, firm, corporation or other entity on
whose behalf Executive is acting as an employee, agent or other representative
and that Executive will not convey any Confidential Information or trade secrets
about other employees of the Employer or any of its subsidiaries to any other
person except within the scope of Executive's duties hereunder.
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SECTION 6. General Provisions.
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(a) Enforceability. It is the desire and intent of the parties hereto that
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the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, although the Executive and the
Employer consider the restrictions contained in this Agreement to be reasonable
for the express purpose of preserving the Employer's goodwill and proprietary
rights, 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
deletion to apply only with respect to the operation of such provision in the
particular jurisdiction in which such adjudication is made. It is expressly
understood and agreed that although the Employer and the Executive consider the
restrictions contained in Section 5 to be reasonable and necessary to protect
the Employer's legitimate business interests, if a final determination is made
by a court of competent jurisdiction that the time or territory or any other
restriction contained in this Agreement is unenforceable against the Executive,
the provisions of this Agreement shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable.
(b) Remedies; Survival. The parties acknowledge that the Employer's damages
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at law may be an inadequate remedy for the breach by the Executive of any
provision of Section 4 or Section 5, and agree in the event of such breach that
the Employer may obtain temporary and permanent injunctive relief restraining
the Executive from such breach, and, to the extent permissible under the
applicable statutes and rules of procedure, a temporary injunction may be
granted immediately upon the commencement of any such suit. Nothing contained
herein shall be construed as prohibiting the Employer from pursuing any other
remedies available at law or equity for such breach or threatened breach of
Section 4 or Section 5 or for any breach or threatened breach of any other
provision of this Agreement. The obligations contained in Sections 4 and 5
shall, to the extent provided in Sections 4 and 5, survive the termination or
expiration of the Executive's employment with the Employer and, as applicable,
shall be fully enforceable thereafter in accordance with the terms of this
Agreement. In the event of termination of the Employment Period in accordance
with Section 3, the Executive agrees to cooperate with the Employer in order to
ensure an orderly transfer of the Executive's duties and responsibilities.
Executive shall pay all costs incurred by the Employer, including reasonable
attorneys fees, in the enforcement of this Agreement.
(c) Withholding. The Employer shall withhold such amounts from any
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compensation or other benefits payable to the Executive under this Agreement on
account of payroll and other taxes as may be required by applicable law or
regulation of any governmental authority.
(d) Assignment; Successors. This Agreement shall be binding upon and inure
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to the benefit of both parties and their respective successors and assigns,
including any corporation with which or into which the Employer may be merged or
which may otherwise succeed to its assets or business. Consequently, this
Agreement shall, subject to the provisions hereof, be binding upon and inure to
the benefit of such successor and such successor shall discharge and perform all
the promises, covenants, duties and obligations of the Employer hereunder, and
all references herein to the "Employer" shall thereafter refer to such
successor. Notwithstanding the foregoing, the obligations of the Executive are
personal and shall not be assigned by him.
(e) Key Man Insurance. The Employer shall have the right to obtain key man
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life insurance, for the benefit of the Employer, with respect to the Executive,
and the Executive shall undergo such physical examinations and provide such
other cooperation as may reasonably be requested by the Employer in order to
obtain and maintain such insurance.
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(f) Indemnity. The Employer hereby agrees to indemnify and hold the
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Executive harmless to the maximum degree allowed by law against any and all
liabilities, expenses (including attorneys' fees and costs), claims, judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any proceeding arising out of the Executive's employment with
the Employer (whether civil, criminal, administrative or investigative, other
than proceedings by or in the right of the Employer), if with respect to the
actions at issue in the proceeding the Executive acted in good faith and in a
manner Executive reasonably believed to be in, or not opposed to, the best
interests of the Employer, and (with respect to any criminal action) Executive
had no reason to believe Executive's conduct was unlawful.
(g) Acknowledgment. The parties hereto acknowledge that Employer's general
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counsel, Xxxxxxxxx, Xxxxxx & Xxxxxxx L.L.P., has prepared this Agreement on
behalf of the Employer and not the Executive. The Executive acknowledges that he
has been advised by the Employer to seek the advice of independent counsel prior
to reaching agreement with the Employer on any of the terms of this Agreement
and that he has carefully read this Agreement, understands its terms, consulted
with an attorney of its choice, and voluntarily executes the same as its own
free act with the intent to be legally bound thereby. The parties agree that no
rule of construction shall apply to this Agreement which construes ambiguous
language in favor of or against any party by reason of that party's role in
drafting this Agreement.
(h) Waivers; Modification. Failure to insist upon strict compliance with
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any of the terms, covenants, or conditions hereof shall not be deemed a waiver
of such term, covenant, or condition, nor shall any waiver or relinquishment of,
or failure to insist upon strict compliance with, any right or power hereunder
at any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times. This Agreement shall not be modified in any
respect except by a writing executed by each party hereto.
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(i) Notices. All notices or other communications which are required or
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permitted hereunder shall be in writing and sufficient if delivered personally
or sent by registered or certified mail, postage prepaid, return receipt
requested, sent by overnight courier, or sent by facsimile (with confirmation of
receipt), addressed as follows:
If to the Employer: With a copy to:
TVI Corporation Xxxxx X. Xxxxx, Xx.
7100 Xxxxxxxx Xxxxx Road, Suite 300 Xxxxxxxxx, Xxxxxx & Preston L.L.P.
Glenn Dale, MD 20769 Seven Saint Xxxx Street
Attn: Board of Directors Xxxxxxxxx, Xxxxxxxx 00000
If to the Executive: With a copy to:
Xxxxxxx X. Xxxxxx Xxxx X. Xxxx, Xx.
Foard, Gisriel, O'Brien & Xxxx, LLC
00 X. Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
or at such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. If such notice
or communication is mailed, such communication shall be deemed to have been
given on the fifth business day following the date on which such communication
is posted.
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(j) Descriptive Headings; Certain Interpretations. Descriptive headings are
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for convenience only and shall not control or affect the meaning or construction
of any provision of this Agreement. Except as otherwise expressly provided in
this Agreement: (i) any reference in this Agreement to any agreement, document
or instrument includes all permitted supplements and amendments; (ii) a
reference to a law includes any amendment or modification to such law and any
rules or regulations issued thereunder; (iii) the words "include," "included"
and "including" are not limiting; and (iv) a reference to a person or entity
includes its permitted successors and assigns.
(k) Counterparts; Entire Agreement. This Agreement may be executed in any
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number of counterparts, and each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts together shall constitute one
agreement. This Agreement contains the entire agreement among the parties with
respect to the transactions contemplated by this Agreement and terminates and
supersedes all other or prior written or oral agreements or understandings among
the parties with respect to the Executive's employment by the Employer. The
Executive hereby represents and warrants that by entering into this Agreement
and performing his services hereunder, the Executive will not breach or violate
the terms of any employment agreement, non-competition agreement, or similar
agreement to which the Executive is a party or by which he may be bound.
(l) Governing Law; Jurisdiction. This Agreement and the legal relations
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thus created between the parties hereto shall be governed by and construed under
and in accordance with the internal laws of the State of Maryland without
reference to the principles of conflicts of laws. Any and all disputes between
the parties which may arise pursuant to this Agreement will be heard and
determined before an appropriate federal court in Maryland, or, if not
maintainable herein, then in an appropriate Maryland state court. The parties
acknowledge that such courts have jurisdiction to interpret and enforce the
provisions of this Agreement, and the parties consent to, and waive any and all
objections that they may have as to, personal jurisdiction and/or venue in such
courts.
(m) Expenses. Any cost, expense, tax or any other charges incurred by
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either of the parties hereto shall be borne by the party incurring such cost,
expense, tax or charge; provided that, upon submission of an itemized statement
and such other supporting documentation as the Employer may reasonably request,
the Employer shall reimburse Employee up to $3,500 for legal fees (not to exceed
$175 per hour) and disbursements actually incurred in connection with the
execution of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
EMPLOYER:
TVI CORPORATION
/s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
EXECUTIVE:
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
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