EMPLOYMENT AGREEMENT
Exhibit 10.2
This Employment Agreement (“Agreement”) is made this 22nd of November, 2008, by and
between Sparton Corporation, an Ohio corporation (“Company”), and Xxxxxxx Xxxxxxx (“Executive” or
“Xxxxxxx”). Any reference to the Company shall be deemed to include any subsidiary or parent of
the Company.
WHEREAS, Xxxxxxx Xxxxxxx has had a long, distinguished career with the Company, holding such
positions as Chief Financial Officer, Director, and Interim Chief Executive Officer (“CEO”);
WHEREAS, it is in the best interests of the Company that Xxxxxxx remain with the Company and
that he assist the new CEO with various duties during the transition period so that the CEO can
devote the bulk of his time to returning the Company to profitability;
WHEREAS, Executive agrees to retire as a member of the Board of Directors at the December 19,
2008 Board Meeting in order to create a vacancy for the new CEO, and intends on retiring from his
position as President at the end of the Term of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Company and
Executive agree as follows:
1. Employment. The Company employs the Executive as its President, and the Executive
accepts such employment, upon the terms and conditions set forth in this Agreement.
2. Duties. The Executive shall perform and discharge well and faithfully such duties
for the Company as may be reasonably assigned to the Executive from time to time by the CEO. The
Executive shall devote his full business time, attention and energies to the business of the
Company, and shall not during the employment Term (as defined below) engage in any other business
activity, whether or not such activity is pursued for gain, profit or other pecuniary advantage,
without the prior written approval of the Board of Directors.
3. Term. The term of employment under this Agreement shall commence on November 24,
2008, and shall expire on July 1, 2010 (“Term”). Neither the Company nor the Executive is under
any obligation to renew or extend Executive’s employment beyond the Term of this Agreement.
4. Compensation.
(a) Salary. The Company shall pay the Executive a salary during the Term at the rate
of $265,000 per year, payable on the same payroll schedule as other Executives of the Company,
minus normal payroll deductions required by law.
(b) Benefits. The Company will provide the Executive with fringe benefits no less
favorable than those provided to other Executives of the Company during the Term, including, but
not limited to, vacation, personal, and sick days (which may be increased from time to time),
health, disability, life insurance, pension and 401(k) Savings Plan. During the
Term, Executive will receive a car allowance of $5,850 annually, payable periodically on the
Company’s customary payroll schedule, to cover the purchase/lease, fuel, and maintenance costs of
an automobile.
(c) Reimbursement of Expenses. During the Term, the Executive shall be reimbursed for
all travel, meals, entertainment, and other out-of-pocket expenses reasonably incurred by him on
behalf of or in connection with the performance of his duties and the business of the Company,
pursuant to the normal standards and guidelines followed from time to time by the Company; provided
that an expense reimbursement shall under no circumstances occur later than 90 days after the date
on which an expense is incurred.
(d) Bonus. The Company and Executive shall agree upon a written bonus/incentive plan
consistent with the same bonus plan provided to other senior executives of the Company for fiscal
years 2009 and 2010. The bonuses will be paid no later than the September 15th
following the end of the fiscal year to which such bonuses relate.
5. Disability; Death.
(a) In the event Executive shall be unable to perform his duties under this Agreement by
virtue of illness or physical or mental capacity or disability in substantially the manner and to
the extent required under this Agreement prior to the commencement of such disability, and the
Executive shall fail to perform such duties for periods aggregating 120 days, whether or not
continuous, in any continuous period of 180 days, the Company shall have the right to terminate the
Executive’s employment under this Agreement at the end of any calendar month during the continuance
of such disability upon at least 30 days’ prior written notice to Executive. In the event of the
Executive’s death, the date of termination shall be the date of such death.
(b) In the event the Executive’s employment is terminated pursuant to this section, the
Executive, or in the case of his death, the Executive’s estate, shall be entitled to receive when
otherwise payable, but no later than sixty (60) days after the date of termination, subject to any
offsets (i) all salary compensation earned but unpaid as of the date of termination, and (ii) any
unpaid reimbursable expenses outstanding, and any unused accrued vacation, as of such date. Any
benefits to which the Executive or his beneficiaries may be entitled under the plans and programs
described above as of his date of termination shall be determined in accordance with the terms of
such plans and programs. Except as stated in this paragraph, the Company shall have no further
liability to the Executive or the Executive’s heirs, beneficiaries or estate for damages,
compensation, benefits, severance, indemnities or other amounts of whatever nature.
6. Termination.
(a) With Cause. The Company, by direction of the Board of Directors of the Company,
shall be entitled to terminate the Term and to discharge the Executive at any time for Cause upon
written notice. The term “Cause” shall be limited to the following grounds:
(i) The Executive’s failure or refusal to materially perform his duties and responsibilities,
or the failure of the Executive to devote substantially all of his business time and attention
exclusively to the business and affairs of the Company in accordance with the terms of this
Agreement;
(ii) The willful misappropriation of the funds or property of the Company;
(iii) Use of alcohol, to the extent that such use interferes with the performance of the
Executive’s obligations under this Agreement, continuing after written warning, or use of illegal
drugs, with or without previous warning;
(iv) Conviction of a felony or of any crime involving moral turpitude, dishonesty, theft,
unethical or unlawful conduct; or
(v) The commission by the Executive of any willful or intentional act which could reasonably
be expected to injure the reputation, business or business relationships of the Company or which
may tend to bring the Executive or the Company into disrepute, or the commission of any act which
is a breach of the Executive’s fiduciary duties to the Company.
Upon termination for Cause or by the Executive without Good Reason, the Company shall pay the
Executive, when otherwise payable (but no later than sixty (60) days after the date of
termination), subject to offsets, his salary compensation, his unused accrued vacation and any
unpaid reimbursable expenses as of the date of termination. Any benefits to which the Executive or
his beneficiaries may be entitled to under the plans and programs described above as of the date of
his termination shall be determined in accordance with the terms of such plans and programs. The
Company shall have no further liability to the Executive or the Executive’s heirs, beneficiaries or
estate for damages, compensation, benefits, severance, indemnities or other amount of whatever
nature.
(b) Without Cause. At any time during the term of this Agreement, the Company shall
be entitled to terminate the Term and discharge the Executive Without Cause, upon delivery of
written notice to the Executive. Upon termination Without Cause, the Company shall pay the
Executive, subject to offset, the unpaid portions of his salary through the Term, as if Executive
had not been terminated. In all other respects, Executive shall receive the same compensation and
benefits as set forth above in paragraph 6(a) for termination for Cause. This Paragraph 10(b) is
intended to satisfy the requirements of the exemption from the application of Section 409A of the
Internal Revenue Code of 1986, as amended (“Code”), for separation pay plans under Treasury
Regulation Section 1.409A-1(b)(9). To the extent the aggregate payments due hereunder exceed two
(2) times the lesser of (i) the Executive’s compensation for the Executive’s taxable year preceding
the taxable year of his termination of employment, or (ii) the Code Section 401(a)(17) limit for
the taxable year of the Executive’s termination of employment, such excess payments shall be
subject to the provisions of Paragraph 18 below. For purposes of the preceding sentence, the
calculation of “aggregate payments” shall exclude any bonus payment due under a bonus arrangement
that satisfies the requirements of the exemption from the application of Code Section 409A for
short-term deferrals under Treasury Regulation Section 1.409A-1(b)(4). The Executive shall be
entitled to the salary payments set forth in this paragraph only so long as he is in compliance
with the noncompetition provisions set
forth below, and only after Executive has executed an appropriate legal release of all claims
against the Company, except those claims brought to enforce the provisions of this Agreement.
(c) Executive Termination—For Good Reason. The Executive shall be entitled to
terminate this Agreement for Good Reason. Good Reason is defined as the occurrence of any of the
following: (1) a material change by the Company in the Executive’s authority, duties or
responsibilities which would cause the Executive’s position with the Company to become of
materially less responsibility and importance; or, (2) the Company otherwise materially breaches
this Agreement; provided that (a) the Executive shall provide written notice to the Company of the
Good Reason no more than ninety (90) days after the initial existence of the Good Reason, and (b)
the Company is afforded thirty (30) days to remedy the material change or breach, and (c) the
Executive terminates within 150 days following the initial existence of any Good Reason. In those
circumstances where the Executive terminates this Agreement for a Good Reason, Executive shall be
entitled to the compensation set forth in paragraph 6(b)(Termination Without Cause), so long as he
is in compliance with the noncompetition provisions set forth below, and only after he has executed
an appropriate legal release of all claims against the Company.
7. Confidentiality. The Executive agrees to at all times (during the Term and
thereafter without limitation) hold in confidence and keep secret and inviolate all of the
confidential information of the Company and its Subsidiaries, including, without limitation, all
unpublished matters relating to the business, property, accounts, books, records, customers and
contracts of the Company which he may or hereafter come to know; provided, however, the Executive
may (i) disclose any such information which has otherwise entered the public domain (other than
through a breach of this Agreement) or which he is required to disclose to any governmental
authority by law or subpoena or judicial process, and (ii) disclose so much of such information to
personal tax or financial advisors as may be required to enable such advisors to render appropriate
advice to the Executive.
8. Non-Competition and Non-Solicitation.
(a) Executive hereby acknowledges that he is familiar with the Company’s trade secrets and
other confidential information. Therefore, Executive agrees that while employed and for six months
thereafter, he shall not, directly or indirectly, either for himself or for any other Person own
any interest in, manage, control, consult with, render services for or participate in (whether as
an officer, director, employee, partner, agent, representative or otherwise) or in any other manner
engage anywhere in Michigan (the “Restricted
Territories”)___ in any business engaged in
Electronic Manufacturing Services (the “Restricted Business”) ___; provided that nothing herein
shall prohibit passive ownership of not more than 2% of the stock of a publicly-held corporation
whose stock is traded on a national securities exchange or in the over-the-counter market so long
as Executive does not have any active participation in the business of the corporation. Executive
agrees that the Company’s business has been conducted or is presently proposed to be conducted
throughout the Restricted Territories (including as the same relates to the development, marketing,
licensing and sale of its products and services) and that the geographic restrictions set forth
above are reasonable and necessary to protect the goodwill of the Company’s business.
(b) Executive shall not directly, or indirectly through another person or entity, (i) induce
or attempt to induce any employee of the Company to leave the employ of the Company, or in any way
interfere with the relationship between the Company and any employee thereof; (ii) hire any person
who was an employee of the Company at any time during the six month period immediately prior to the
date on which such hiring would take place (it being conclusively presumed by the parties so as to
avoid any disputes under this Paragraph that any such hiring within such six month period is in
violation of clause (i) above), or (iii) for a period of six months after termination of
Executive’s employment with the Company, call on, solicit, or service any customer, supplier,
licensee, licensor or other business relation of the Company in order to induce or attempt to
induce such Person to cease doing business with the Company, or in any way interfere with the
relationship between any such customer, supplier, licensee, or business relation and the Company
(including making any negative statements or communications about the Company or any of its
Subsidiaries).
9. Enforcement.
(a) If, at the time of enforcement of the covenants contained in paragraph 7 and/or 8 above
(“Protective Covenants”), a court shall hold that the duration, scope or area restrictions stated
are unreasonable under circumstances then existing, the parties agree that the maximum duration,
scope or area reasonable under such circumstances shall be substituted for the stated duration,
scope or area and that the court shall be allowed to revise the Protective Covenants to cover the
maximum duration, scope and area permitted by law. Executive has consulted with legal counsel
regarding the Protective Covenants and based on such consultation has determined and agrees that
the Protective Covenants are reasonable in terms of duration, scope and area restrictions and are
necessary to protect the goodwill of the Company’s businesses and agrees not to challenge the
validity or enforceability of the Protective Covenants.
(b) If Executive breaches, or threatens to commit a breach of any of the Protective Covenants,
the Company and its Subsidiaries shall have the following rights and remedies, each of which rights
and remedies shall be independent of the others and severally enforceable, and each of which is in
addition to, and not in lieu of, any other rights and remedies available to the Company or its
Subsidiaries at law or in equity:
(i) the right and remedy to have the Protective Covenants specifically enforced by any court
of competent jurisdiction, it being agree that any breach or threatened breach of the Protective
Covenants would cause irreparable injury to the Company and its Subsidiaries and that money damages
would not provide an adequate remedy to the Company or its Subsidiaries; and
(ii) the right and remedy to require Executive to account for and pay over to the Company or
its Subsidiaries any profits, monies or other benefits derived or received by Executive as the
result of any transactions constituting a breach of the Protective Covenants.
10. Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when delivered personally to the recipient, one day after being sent to the
recipient by reputable overnight courier service (charges prepaid), upon machine-generated
acknowledgment of receipt by certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications shall be sent to Executive and the
Company at the addresses indicated below or to such other address or to the attention of such
other persons as the recipient party has specified by prior written notice to the sending party.
Notice to Executive
Xx. Xxxxxxx X. Xxxxxxx
President
Sparton Corporation
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxxx
President
Sparton Corporation
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Notice to Company
Chief Executive Officer
Sparton Corporation
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Chief Executive Officer
Sparton Corporation
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
11. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid or illegal provision had never been
contained herein.
12. Complete Agreement. This Agreement, except for the Nondisclosure and Patent
Assignment Agreement (attached), the employee handbook in effect now and through Executive’s date
of termination, and the Code of Business Conduct Policy in effect now and through Executive’s date
of termination, contains the complete agreement and understanding among the parties and supersedes
and preempts any prior understandings, agreements, or representations by or among the parties,
written or oral, which may have related to the subject matter herein in any way.
13. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
14. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.
15. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by the Company, the Executive and each of their respective heirs,
successors and assigns, except that Executive shall not assign Executive’s rights or delegate
Executive’s obligations without the prior written consent of the Company.
16. Choice of Law. All issues concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed in accordance with the laws of
the State of Michigan, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Michigan or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Michigan.
17. Amendments and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Company and Executive, and no course of conduct or
failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding
effect or enforceability of this Agreement.
18. Code Section 409A. To the extent a payment hereunder is, or shall become, subject
to the application of Code Section 409A, the following shall apply:
(a) Specified Employee. If, as of the date of the Executive’s termination of
employment the Executive is determined to be a “specified employee” (as determined under Treasury
Regulation Section 1.409A-1(i)), then the payment shall be delayed until a date that is six (6)
months after the date of the Executive’s termination of employment to the extent necessary to
comply with the requirements of Code Section 409A and related Treasury Regulations; provided,
however, that the payments to which the Executive would have been entitled during such 6-month
period, but for this subparagraph, shall be accumulated and paid to the Executive on the first
(1st) day of the seventh (7th) month following the Executive’s termination of
employment.
(b) Code Section 409A Compliance. This Agreement is intended to comply with the
requirements of Code Section 409A and the Treasury Regulations and other guidance issued
thereunder, as in effect from time to time. To the extent a provision of this Agreement is
contrary to or fails to address the requirements of Code Section 409A and related Treasury
Regulations, this Agreement shall be construed and administered as necessary to comply with such
requirements to the extent allowed under applicable Treasury Regulations until this Agreement is
appropriately amended to comply with such requirements.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first
above written.
| Sparton Corporation | Executive | |||||
By:
|
\s\ Xxxxx X. Xxxxxxxxx | \s\ Xxxxxxx X. Xxxxxxx | ||||
| Its: Chairman of the Board | ||||||
