EXHIBIT 10.49
EMPLOYMENT AGREEMENT
This AGREEMENT is made and entered into as of the 15th day of
December, 1998, by and between PARAVANT COMPUTER SYSTEMS, INC., a Florida
corporation (the "Company") and XXXXXXX X. XXXXXX, (the "Employee").
WHEREAS, the Company desires to obtain the benefit of the services
of the Employee, and the Employee desires to render such services on the
terms and conditions hereinafter set forth, and,
WHEREAS, the Company and the Employee desire to provide limited
protection of the Employee's employment in the event of a change in
ownership of the Company by virtue of a sale, merger by the Company into,
or the combination with, another corporation or other form of takeover
wherein the new ownership may terminate the employee without cause.
NOW, THEREFORE, the Parties hereto, in consideration of the
premises and the mutual covenants herein contained, hereby agree as
follows:
1. Termination of Prior Agreement. Upon the execution of this Agreement, all
prior employment agreements between the Employee, and the Company or any of
its affiliates, subsidiaries, and predecessor constituent corporations are
terminated and of no further force and effect.
2. Term of Employment. Subject to the terms and conditions hereinafter set
forth, the Company hereby enters into the employment of the Employee, or
any of subsidiary or affiliate of the Company, as the Company shall, from
time to time, select, for an employment term commencing on the date of
execution of this Agreement and terminating on 31 December 2000. The period
during which the Employee is employed pursuant to this Agreement is
hereinafter called the "Term of Employment." The Term of Employment will
normally be submitted to the Board of Directors, at the first board meeting
each fiscal year, for the succeeding calendar year for review and updates
of terms and conditions.
3. Scope of Employment. During the Term of Employment, the Employee shall
be employed as an officer of the Company with duties and responsibilities
commensurate with the execution of the Paravant Computer Systems' core
business. In addition, thc Employee shall well and faithfully render and
perform such other executive and managerial services, as may be assigned to
him, from time to time, by or under the authority of the Board of Directors
of the Company or of any subsidiary or affiliate of the Company. The
Employee will devote his full time and efforts to the business and affairs
of thc Company, or such subsidiary, or affiliate as now or hereafter
conducted, and shall be at all times subject to the direction and control
of the Board of Directors of the Company or such subsidiary or affiliate.
The Employee shall render such services which are in accordance with his
utmost abilities and shall use his best efforts to promote the interests of
the Company and subsidiaries and affiliates. The Employee will not engage
in any capacity or activity which is, or may be, contrary to the welfare,
interest or benefit of the business now or hereafter conducted by the
Company and its subsidiaries and affiliates.
4. Compensation. As full compensation for all services provided for
herein, including without limiting the generality of the foregoing, all
services to be rendered by the Employee as an officer or director of the
Company or of any subsidiary or affiliate of the Company, the Company will
pay, cause to be paid, to the Employee, and the Employee will accept, a
salary, during the Term of Employment, at an annual rate of One Hundred and
Fifty-Seven Thousand and Four Hundred and Twenty Dollars ($157,420) to be
paid in regular installments in accordance with the Company's usual paying
practices. Such payments will be subjected to such deductions by the
Company as the Company is from time to time required to make pursuant to
law, government regulations or order or by agreement with, or consent of,
the Employee. The Board of Directors shall have the authority to increase
such compensation, at its discretion from time to time, with the award and
payment of bonuses and other forms of compensation to the Employee.
5. Expenses. The Employee shall be entitled to reimbursement by the Company
for reasonable expenses actually incurred by him on its behalf in the
course of his employment by the Company, upon the presentation by the
Employee, from time to time, of an itemized account of such expenditures,
together with such vouchers and other receipts as the Company may request.
6. Vacation. The Employee shall be entitled to vacations in accordance
with the Company's prevailing policy for its operating executives.
7. Benefits. The Employee shall be entitled to participate in all group life
insurance, medical and hospitalization plans, and pension, stock option and
profit sharing plans as are presently being offered by the Company or which
may hereafter during the Term of Employment be offered by the Company
generally to its operating executives.
8. Payments on Death or Disability. In the event that the Employee shall die
or become disabled during the Term of Employment or any renewal thereof,
the Company shall pay to his heirs in the case of his death, or to him or
his guardian, in case of his disability, a lump sum payment equal to 6
months of compensation due to him at that time hereunder or equal monthly
installments covering such 6 months compensation at the discretion of the
Employee, his or her guardian, whatever the case may be. For purposes of
this Agreement, disability of the Employee shall have occurred if (a) the
Employee shall become physically or mentally incapable of properly
performing his services to the Company as provided hereunder excluding
infrequent and temporary absences due to ordinary illnesses, (b) such
incapacity shall exist or be reasonably expected to exist for more than 90
days in the aggregate during any 12 consecutive months covered hereunder or
in any renewals hereof' and (c) either the Employee or the Company shall
have given the other 30 days written notice of his or its intention to
terminate the Employee's active employment by the Company due to such
disability. For purposes of this Agreement, the Employee shall on or
immediately after executing this Agreement provide the Company with a
written list of his heirs in order of preference regarding death payment
benefits hereunder. This list may be altered and changed from time to time
by the Employee by giving written notice of such changes or new list
thereof to the Company as provided herein.
9. Severance. In the event that the Employee's employment with the Company is
terminated thereby 'without cause' during the Term thereof, the Employee
shall be entitled to, as severance hereunder, one year's full compensation
and 6 months benefits as provided for and paid out in the manner specified
herein. Termination for cause shall include Employee's failure to perfon1
his duties hereunder, his conviction of felony, alcoholism, illegal drug
abuse, violations of corporate or securities laws or similar infractions.
10. Vesting of Benefits, etc. Upon the effective termination date of the
Executive's employment (a) by the Company without Cause (Paragraph 9), (b)
due to Disability (Paragraph 8), or (c) in the case of Change of Control
(Paragraph 15);
(1) The Executive shall become vested immediately in any unvested stock
options (other than incentive stock options under a "qualified" plan)
that the Executive may have at the time of his termination; and must
exercise all stock options within 90 days of termination or forfeit
either all unexercised options,
(2) To the extent, and only to the extent, that the same is permitted by
law without thereby disqualifying any plan of the Company or an
affiliate that is a "qualified" plan under the Internal Revenue Code or
that otherwise enjoys or provides tax benefits to employees under the
Internal Revenue Code, the Executive shall become vested immediately in
any and all other benefits under each and every benefit plan of the
Company or any affiliate and in which the Executive, at the time of his
termination, had unvested benefits.
(3) The company will indemnify and defend the Executive in the same manner
and to the same degree as if he was an employee, executive, officer and
director of the Company, for all litigation or other actions brought
against the Executive originating as a result of association of the
Executive with the Company, including but not limited to all claims,
liability, damage, loss, expense, attorneys' fees, court costs,
judgements, settlements, fines, etc.
11. Covenant not to Compete. During the Term of Employment and for a period
of one (1) year after the Term of Employment, the Employee shall not
engage, directly or indirectly, within the United States in any business
engaged in the design, development, manufacture and sale of rugged
computers. For the purpose of this paragraph, the Employee will be deemed,
directly or indirectly, engaged in a business if he participates in such
business as proprietor, partner, joint venturer, stockholder, director,
officer, lender, manager, employee, consultant, advisor or agent or if he
otherwise controls such business. The Employee shall not, for purposes of
this paragraph, be deemed stockholder if he holds less than one (1%)
percent of the outstanding shares of any publicly owned corporation engaged
in the same or similar business to that of the Company or ally of its
divisions, subsidiaries or affiliates; provided, however, that the Employee
shall not be in a control position with regard to such corporation. In
addition, the Employee shall not be in a control position with regard to
such corporation. In addition, the Employee shall not at any time, during
or after the termination of this Agreement, engage in any business which
uses as its name, in whole or in part, "Paravant Computer Systems, Inc.,"
"PCS" or any other name then used by the Company or any of its affiliates
or subsidiaries.
12. Non-Disclosure. Except as may be required by law or with the express
permission of the Company's Board of Directors, the Employee will not at
any time, directly or indirectly, disclose or furnish to any other person,
firm or corporation: (a) the methods of conducting the business of the
Company or its subsidiaries or affiliates, (b) a description of any of the
methods of obtaining business, or manufacturing or advertising products, or
of obtaining customers thereof, and/or (c) any confidential information
acquired by him during the course of his employment by the Company, its
predecessors, subsidiaries or affiliates,
including, without limiting the generality of the foregoing, the names of
any new customers or prospective customers of, or any person, firm or
corporation, who or which have, or shall have, traded or dealt with
(whether such customers have been obtained by the Employee or otherwise)
the Company, its predecessors, subsidiaries or affiliates.
13. Inventions. As between the Employee and the Company, all products, designs,
styles, processes, discoveries, materials, ideas, creations, inventions and
properties, whether or not furnished by the Employee, created, developed,
invented or used in connection with the Employee's employment hereunder or
prior to this Agreement, will be the sole and absolute property of the
Company for any and all purposes whatever in perpetuity, whether or not
conceived, discovered and/or developed during regular working hours. The
Employee will not have, and will not claim to have, under this Agreement or
otherwise, any right, title or interest of any kind or nature whatsoever in
or to any such products, processes, discoveries, materials ideals,
creations, inventions and properties.
14. Arbitration. Any controversy arising out of or relating to this Agreement
shall be resolved by arbitration in the State of Florida pursuant to the
rules of the American Arbitration Association then in effect.
15. Change of Control. In the event of a change in the control of the Company
by virtue of a sale, merger by the Company into, or the combination with,
another corporation or other form of takeover wherein the resulting entity
controls thirty-three percent (33%) or more of the voting stock, and there
is more than a 50% change in the composition of the Board, then if the
Employee is terminated without cause during the first six months following
the change of control, the Employee's severance benefits under Section 9
will be increased by 12 months.
16. Further Instruments. The Employee will execute and deliver all such other
further instruments and documents as may be necessary, in the opinion of
the Company, to carry out the purposes of this Agreement, or to confirm,
assign, or convey to the Company any products, processes, discoveries,
materials, ideas, creations, inventions or properties referred to in
Paragraph 12 hereof, including the execution of all patent applications.
17. Notice. Any written notices required hereunder shall be deemed sufficient
if delivered personally or by certified mail to the Employer at its regular
business office and to the Employee at his home address on file with the
Company.
18. Assignment. A party hereto may not assign this Agreement or any rights or
obligations hereunder, without the consent of the other party hereto.
Provided, however, that upon the sale or transfer of all or substantially
all of the assets of the Company or upon the sale, merger by the Company
into, or the combination with, another corporation or other form of
takeover, this Agreement will (subject to the provisions of Paragraph 2
hereof) inure to the benefits of and be binding upon the person, firm or
corporation purchasing such assets, or the corporation surviving such
merger or consolidation or takeover, as the case may be. The provisions of
the Agreement are binding, upon the heirs of the Employee and upon the
successors and assigns of the Company hereto.
19. Waiver of Breach. Waiver by either party of a breach of any provision of
this Agreement by the other shall not operate or be constructed as a waiver
of any subsequent breach by such other party.
20. Entire Agreement. This instrument contains the entire agreement of the
parties as to the subject matter hereof. It may not be changed orally, but
only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
21. Applicable Law. This Agreement shall be constructed in accordance with the
laws of the State of Florida.
22. Severability. If any provision of this Agreement is held to be invalid or
unenforceable by any court or tribunal of competent jurisdiction, the
remainder of this Agreement shall not be affected by such judgement, and
such provision shall be earned out as nearly as possible according to its
original terms and intent to eliminate such invalidity or unenforceability.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, as of the day and year first above written.
PARAVANT COMPUTER SYSTEMS, INC.
BY:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Chairman
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Employee
