Exhibit 10.25
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of August 18, 2000, between Exigent International,
Inc., a Delaware corporation (the "Company"), and the individual set forth on
Exhibit A hereto (the "Executive").
In consideration of the premises and the respective covenants and
agreements of the parties herein contained, and intending to be legally bound
hereby, the parties agree as follows:
1. Employment.The Executive and the Company hereby agree that, the Company
shall employ the Executive and the Executive shall serve the Company on
the terms set forth herein.
2. Term of Employment.
(a) Initial Term. The term of this Agreement (the "Employment Period"), and
they Executive's employment with the Company hereunder, shall commence on
the date set forth on Exhibit A (the "Commencement Date") and, unless
earlier terminated in accordance with the terms hereof, shall continue
until the third anniversary of the Commencement Date.
(b) Extended Term. This Agreement shall be renewed automatically for an
additional one-year period on the expiration of the initial three-year term
and on each subsequent one-year anniversary date unless the Company's Chief
Executive Officer notifies Executive in writing or Executive notifies the
Company's Chief Executive Officer or Board of Directors in writing that
such renewal shall not take place. Said notice shall be given not less than
ninety (90) days prior to any such anniversary date.
In the event of any extension of the Agreement for one or more consecutive
one-year terms, the terms of this Agreement shall be deemed to continue in
effect for the term of such extension. The initial three-year term and any
extended employment term will be collectively referred to as the "Employment
Period," unless otherwise specified by the Company's Chief Executive Officer.
3. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (a) the Executive shall serve in the position
set forth on Exhibit A, with the traditional duties, responsibilities and
authority of such office in companies similar in size to the Company; and (b)
the Executive's services shall be performed principally at the location set
forth on Exhibit A.
(ii) During the Employment Period, and excluding any periods of vacation and
sick leave to which the Executive is entitled, the Executive agrees to devote
full attention and time during normal business hours to the business and affairs
of the Company and, to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder, to use the Executive's reasonable best
efforts to perform faithfully and efficiently such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for the
Executive to (A) serve on corporate, civic or charitable boards or committees,
(B) deliver lectures or fulfill speaking engagements and (C) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and agreed that to
the extent that any such activities have been conducted by the Executive prior
to the Commencement Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Commencement Date shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive shall receive
an annual base salary, including any applicable car allowance ("Annual Base
Salary"), which shall be paid in accordance with the Company's regular
periodic payroll cycle, at the annual rate set forth on Exhibit A. During
the Employment Period, the Annual Base Salary shall be reviewed at least
annually. Annual Base Salary shall not be reduced after any such increase
and the term Annual Base Salary as utilized in this Agreement shall refer
to Annual Base Salary as so increased.
(ii) Incentive Compensation. For each fiscal year ending during the
EmploymentPeriod, the Executive shall be entitled to participate in the
Company's Annual Executive Incentive Plan (or any successor plan) based on
the percentage set forth on Exhibit A ("Incentive Compensation").
(iii) Savings and Retirement Plans. During the Employment Period, the
Executive shall be entitled to participate in all savings and retirement
plans, practices, policies and programs, if any, applicable generally to
other peer Executives of the Company.
(iv) Welfare Benefit Plans. During the Employment Period, the Executive
and/or the Executive's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit
plans, practices, policies and programs provided by the Company (including
without limitation, medical, prescription, dental, disability, employee
life, group life, split-dollar life, accidental death and travel accident
insurance plans and programs) to the extent applicable generally to other
peer executives of the Company; provided, however, that the Executive
acknowledges that he will not be entitled to receive benefits under any
severance plan, program or policy of the Company if the Executive is
entitled to and receives those benefits under this Agreement upon
termination of his employment hereunder.
(v) Expenses. During the Employment Period, the Executive shall be entitled
to receive prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the policies of the Company applicable to
other peer executives of the Company.
(vi) Fringe Benefits. During the Employment Period, the Executive shall be
entitled to fringe benefits, in accordance with the policies of the Company
applicable to other peer executives of the Company, plus those benefits set
forth on Exhibit A.
(vii) Office and Support Staff. During the Employment Period, the Executive
shall be entitled to an office or offices of a size and with furnishings
and other appointments, and to secretarial and other assistance, at least
equal to those generally provided to other peer executives of the Company.
(viii) Vacation. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the policies of the Company
with respect to other peer executives of the Company.
(c) Other Terms. Any other term or condition relating to Executive's
employment to be incorporated into this Agreement shall be as set forth on
Exhibit A.
(d) Prior Employment Agreement. The Executive acknowledges and agrees by
entering into this Agreement that effective as of the Commencement Date,
the employment agreement between the Executive and Company dated as of
December 17, 1998 shall automatically terminate without any further
obligations of the Company to the Executive thereunder.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If the Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 12(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
(b) Cause. The Company, acting through the reasonable good
faith determination of its Chief Executive Officer, may terminate the
Executive's employment during the Employment Period for Cause. For purposes of
this Agreement, "Cause" shall mean such a determination by the Chief Executive
Officer finding:
(i) the willful and continued failure of the Executive to perform substantially
the Executive's duties with the Company or one of its affiliates (other
than any such failure resulting form incapacity due to physical or mental
illness), after a written demand for substantial performance has been
delivered to the Executive by the Chief Executive Officer of the Company
which specifically identifies the manner in which the Chief Executive
Officer believes that the Executive has not substantially performed the
Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company.
For purposes of this provision, the good faith determination of the Chief
Executive Officer shall be conclusive.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason after a Change in Control.
(i) For purposes of this Agreement, during the period commencing on a Change in
Control and ending on the close of business on the first anniversary of a
Change in Control, "Good Reason" shall mean:
A. any failure by the Company to comply with any of the provisions of
Section 3(b) of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
B. the Company's requiring the Executive to be based at any office or
location other than as provided in Section 3(a)(I)(B) hereof;
C. any purported termination by the Company of the Executive's employment
otherwise than as expressly permitted by this Agreement; or
D. any failure by the Company to comply with and satisfy Section 10(c) of
this Agreement.
E. the assignment to the Executive of any duties inconsistent in any
respect with the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities with Company
immediately prior to the time at which a Change in Control occurred, or any
other action by the Company or its successor which results in a diminution of
such position, authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company or its successor promptly after receipt of
notice thereof given by the Executive.
(ii) Change in Control. For purposes of this Agreement, a "Change in Control"
shall mean the occurrence of any of the following events:
A. The acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (collectively, a "person") of Beneficial Ownership
(as such term is defined in Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of fifty (50%) percent or more of the then outstanding
shares of common stock of the Company (collectively, the "Outstanding Common
Stock"); provided, however, that the following shall not constitute a Change in
Control:
(1) Any acquisition of the Outstanding Common Stock directly from the Company;
(2) Any acquisition by the Underwriter (as such term is defined in Section
2(11) of the Securities Act of 1933, as amended) for the purpose of making
a public offering;
(3) Any acquisition by the Company, whether or not the fifty (50%) threshold
set forth above is exceeded in such acquisition; or
(4) Any acquisition by an employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company.
B. Approval by the shareholders of the Company of (x) a reorganization,
merger or consolidation with respect to which persons who were the shareholders
of the Company immediately prior to such reorganization, merger or consolidation
do not, immediately thereafter, own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated company's then outstanding voting securities, or (y) the
sale of all or substantially all of the assets of the Company, unless the
approved reorganization, merger, consolidation or sale is subsequently
abandoned;
C. A change in a majority of the Company's Board of Directors of the
Company during any 24-month period without the approval of a majority of
directors in office at the beginning of such period.
For purposes of this Section 4(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, form asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the case
may be.
5. Obligations of the Company upon Termination. (a) Good Reason: Other
Than for Cause, Death or Disability. If, during the Employment Period,
the Company shall terminate the Executive's employment other than for
Cause, death or Disability or the Executive shall terminate employment
for Good Reason:
(i) the Company shall pay to the Executive in cash the aggregate of the
following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid and (2) any
compensation previously deferred by the Executive (together with any
accrued interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore paid (the sum of the amounts
described in clauses (1) and (2) shall be hereinafter referred to as
the "Accrued Obligations"), and
B. the amount set forth on Exhibit A under the heading Severance Payment
(the "Severance Payment");
C. Such payments shall be, in the Company's sole discretion, either in a
lump sum within 30 days after the Date of Termination or pursuant to
approximately equal monthly installments commencing within 30 days
after the Date of Termination. (ii) at the end of the fiscal year in
which termination occurs, the Company shall pay to the Executive a pro
rata portion of Executive's Incentive Compensation, if any, for such
year, based on the number of days the Executive is employed in that
fiscal year (the "Termination Incentive Compensation");
(iii)for eighteen months after the Executive's Date of Termination, or
such longer period as may be provided by law or the terms of the
appropriate plan, program, practice or policy, the Company shall pay
the Executive monthly an amount in cash equivalent to the Company's
cost to provide benefits to the Executive and/or the Executive's
family equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies described
in Section 3(b)(iv) of this Agreement; provided, however, that if the
Executive becomes re-employed with another employer and is eligible to
receive medical or other welfare benefits under another
employer-provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other
plan during such applicable period of eligibility.
(iv) the Company shall, at its sole expense as incurred, provide the
Executive with out placement services, the scope and provider of which
shall be selected by the Executive and approved by the Company, which
approval shall not be unreasonably withheld; and
(v) to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or
agreement of the Company other than a severance plan or policy (such
other amounts and benefits shall be hereinafter referred to as the
"Other Benefits").
(vi) the benefits set forth in Sections (i)(B), (ii), (iii), (iv) and (v)
above are in exchange for Employee's execution of a release of all
claims as of the termination date, in substantially the form attached
to this Agreement as Exhibit "B".
(b) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligation to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations, the Death/Disability Payment set forth on Exhibit A, the
Termination Incentive Compensation and the timely payment or provision of Other
Benefits. Accrued Obligations and the Death/Disability Payment shall be paid to
the Executive's estate or beneficiary, as applicable, in accordance with the
provisions of Section 5(a)(i)C. hereof. Payment of the Termination Incentive
Compensation, shall be made in accordance with the provisions of Section
5(a)(ii) hereof. With respect to the provision of Other Benefits, the term
"Other Benefits" as utilized in this Section 5(b) shall include, without
limitation, and the Executive's estate and/or beneficiaries shall be entitled to
receive, benefits at least equal to the most favorable benefits provided by the
Company and its affiliated companies to the estates and beneficiaries of peer
executives under such plans, programs, practices and policies relating to death
benefits, if any, as in effect with respect to other peer executives and their
beneficiaries.
(c) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligation to the Executive, other
than for payment of Accrued Obligations, the Death/Disability Payment, the
Termination Incentive Compensation and the timely payment or provision of Other
Benefits. Accrued Obligations and the Death/Disability Payment and shall be paid
to the Executive in accordance with the provisions of Section 5(a)(i)C. hereof.
Payment of the Termination Incentive Compensation shall be made in accordance
with the provisions of Section 5(a)(ii) hereof. With respect to the provision of
Other Benefits, the term "Other Benefits" as utilized in this Section 5(c) shall
include, and the Executive shall be entitled after the Disability Effective Date
to receive, disability and other benefits at least equal to the most favorable
of those generally provided by the Company and its affiliated companies to
disabled executives and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if any, as in effect
generally with respect to other peer executives and their families.
(d) Cause: Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Employment Period, this
Agreement shall terminate without further obligations to the Executive other
than the payment of Accrued Obligations and the provision of Other Benefits in
each case to the extent theretofore unpaid. If the Executive voluntarily
terminates employment during the Employment Period, excluding a termination for
Good Reason, this Agreement shall terminate without further obligations to the
Executive, other than for Accrued Obligations and the timely payment or
provision of Other Benefits. In such case, all Accrued Obligations shall be paid
to the Executive in a lump sum in cash within 30 days of the Date of
Termination.
6. Nonexclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company for which the Executive may qualify,
nor, subject to Section 12(f), shall anything herein limit or otherwise affect
such rights as the Executive may have under any contract or agreement with the
Company. Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
7. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the fullest extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(a) of the Internal Revenue code
of 1986, as amended (the "Code").
8. Certain Additional Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding and except as set forth below, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this agreement or otherwise, but
determined without regard to any additional payments required under this Section
8) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties are incurred by the Executive with respect
to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section 8(a), if it shall be determined that the Executive is entitled to a
Gross-Up Payment, but that the Executive, after taking into account the Payments
and the Gross-Up Payment, would not receive a net after-tax benefit of at least
$50,000 (taking into account both income taxes and any Excise Tax) as compared
to the net after-tax proceeds to the Executive resulting from an elimination of
the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an
amount (the "Reduced Amount") such that the receipt of Payments would not give
rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive
and the Payments, in the aggregate, shall be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including whether and
when a gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by Ernst & Young, LLP or such other certified public accounting firm as may be
designated by the Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change of Control, the Executive shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firms shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 8, shall be paid by the Company to the Executive within five days of the
receipt of the Accounting Firm's determination. Any determination by the
Accounting Firms shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 8(c) and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firms shall determine the
amount of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.
(c) the Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Executive
is informed in writing of such claim and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Executive gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall:
(i) give the Company any information reasonably requested by the Company
relating to such claim,
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing form time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(iii)cooperate with the Company in good faith in order effectively to
contest such claim, and
(iv) permit the Company to participate in any proceedings relating to such
claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and ▇▇▇ for a refund or to contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and ▇▇▇ for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any inputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by Executive of an amount advanced
by the Company pursuant to Section 8(c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Section 8(c)) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 8(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
9. Confidential Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). Executive acknowledges the critical importance of the confidential
information to the Company's business operations and plans. Executive
acknowledges that unauthorized disclosure or use of any the confidential
information (in particular trade secrets and technical proprietary information)
would cause significant and irreparable damage to the Company and would
jeopardize the Company's business and financial condition. After termination of
the Executive's employment with the Company, the Executive shall not, without
the prior written consent of the Company or as may otherwise be required by law
or legal process, communicate or divulge any such information, knowledge or data
to anyone other than the Company and those designated by it. In no event shall
an asserted violation of the provisions of this Section 9 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under
this Agreement.
10. Successors.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of the Company to assume expressly
and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
11. Non-Competition.
(a) For all periods beginning on the date hereof and ending one year from
the date of termination of his or her employment with the Company and
its affiliated companies, Executive shall not directly or indirectly
as owner, partner, joint venturer, stockholder, employee, broker,
agent, principal, trustee, corporate officer, director, licenser, or
in any capacity whatsoever engage in, become financially interested
in, be employed by or have any connection with, any business in direct
competition with the Company which supplies substantially the same
services or products as the Company to similar customers in any state
or country (other than the United States) where the Company or any of
its affiliated companies is then engaged in such sales or services and
has a legitimate business interest in justifying this restriction;
provided, however, that the Executive may own any securities of any
corporation which is engaged in such business and is publicly owned
and traded but in an amount not to exceed at any one time five percent
of any class of stock or securities of such corporation.
(b) The Executive agrees that for a period of two years following
termination of employment with the Company and its affiliated
companies, he or she will not solicit or in any manner encourage
employees of the Company and its affiliated companies to leave its
employ. The Executive further agrees that during such period he or she
will not offer or cause to be offered employment to any person who is
employed by the Company and its affiliated companies at any time
during the six months prior to the termination of his or her
employment with the Company and its affiliated companies.
(c) The Executive agrees that for a period of two years following
termination of employment with the Company and its affiliated
companies, he or she will not directly or indirectly induce, or
attempt to induce, any of the customers or suppliers of the Company to
terminate their relationship with the Company.
(d) The parties agree that failure to comply with subparagraphs (a), (b)
and (c) of this Section 11 cannot be reasonably or adequately
compensated in damages in an action at law and breach of these
provisions will cause the Company irreparable damage. Therefore, in
addition to the other remedies which may be available to it, in law or
in equity, the Company shall be entitled to injunctive relief without
bond or other security with respect to the breach of this Section 11.
(e) If, in any judicial proceedings a court shall refuse to enforce any of
the other separate covenants set forth in this Section 11, then such
unenforceable covenant shall be amended to relate to such lesser
period or geographical areas as shall be enforceable or, if deemed
appropriate by such court, deemed eliminated from these provisions for
the purpose of those proceedings to the extent necessary to permit the
remaining separate covenants to be enforced.
(f) The Company and Executive acknowledge and agree that by entering into
this Agreement that effective as of the Commencement Date, the
non-compete agreement between the Company and Executive dated as of
December 17, 1998 shall automatically terminate without any further
action by either party.
As used in this Agreement, the term "affiliated companies" shall include any
company controlled by, controlling or under common control with the Company.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, without reference to principals of
conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement
may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and
legal representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed
as follows:
If to the Executive:
The address set forth on Exhibit A.
If to the Company:
Exigent International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. In addition, if any one or more terms of Section 11
of this Agreement shall for any reason be held to be excessively broad with
regard to time, duration, geographic scope or activity that term shall be
construed in a manner to enable it to be enforced to the extent compatible with
applicable law.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitations the right of the Executive to terminate employment for Good Reason
pursuant to Section 4 (c) (i) - (v) of this Agreement, shall not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its Board of Directors,
the Company has caused these present to be executed in its name on its behalf,
all as of the day and year first above written.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
EXIGENT INTERNATIONAL, INC.
By: /s/ B.R. ▇▇▇▇▇▇▇
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Its: Chairman & CEO
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EXHIBIT A
1. Executive: ▇▇▇▇▇ ▇. ▇▇▇▇
2. Commencement Date: August 18, 2000
3. Position: Executive Vice President and Chief Financial Officer
4. Principal Location of Employment*: Melbourne, FL
5. Annual Base Salary: $125,000
6. Incentive Compensation: 30%
7. Fringe Benefits: N/A
8. Other Terms and Conditions: Concurrent with the execution of this
Agreement by the Executive and the Company, the Company shall grant the
Executive 120,000 stock options vesting equally over three years
beginning on the first anniversary of the Grant Date with an exercise
price of the fair market value on the Grant Date. The Terms of
Expiration for said options are detailed in the Option Agreement, but
shall not exceed 10 years from the grant date.
9. Severance Payment**: See Below
10. Death/Disability Payment***: See Below
11. Executive's Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
EXIGENT INTERNATIONAL, INC.
By: /s/ B.R. ▇▇▇▇▇▇▇
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Its: Chairman & CEO
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* Shall mean the Executive's current location of employment unless otherwise
agreed to by the Executive.
** In the case of a Tier II Executive, 1.5x the sum of (a) the Executive's Base
Salary and (b) the cash equivalent portion of highest annual incentive bonus
earned by the Executive during the five full fiscal years preceding the date
hereof ((a) and (b) together, the "Payment").
*** An amount equivalent to the Payment.