Exhibit 10(y)
EMPLOYMENT AGREEMENT
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Agreement made as of the 23rd day of October, 1995, by and
between MILTOPE GROUP INC., a Delaware corporation (the
"Company"), having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ residing at
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WITNESSETH
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WHEREAS, the Company desires to retain the services of the
Employee as Vice President, Finance, and Chief Financial Officer
of the Company and the Employee desires to render such services;
NOW, THEREFORE, in consideration of the representations,
warranties and mutual covenants set forth herein, the parties
agree as follows:
1. Employment.
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The Company hereby retains the Employee as Vice President,
Finance and Chief Financial Officer of the Company and the
Employee hereby accepts such employment, all upon and subject to
the terms and conditions hereinafter set forth.
2. Term.
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The term of employment under this Agreement shall be for a period
commencing on or about November 13, 1995, and terminating on
November 12, 1996, (the "Employment Term"), subject to the
termination provisions in Section five below.
3. Duties.
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(a) The Employee will render his services to the
Company as Vice President, Finance and Chief Financial Officer
and shall perform the duties and services incident to that
position and such other duties as may be assigned to him from
time to time by the President and Chief Executive Officer of the
Company. In addition, the Employee will hold, without additional
compensation therefor, such other offices and directorships in
the Company or any subsidiary of the Company to which, from time
to time, he may be appointed or elected.
(b) During the term of his employment hereunder, the
Employee will devote his full working time to the business of the
Company, and, without the prior written consent of the President
and Chief Executive Officer of the Company, will not (i) actively
engage in any other business or business activity or (ii)
directly or indirectly have any financial interest, as
shareholder, partner, or otherwise, in any proprietorship,
partnership, corporation or other entity in competition with the
Company or its affiliates, except for securities issued by a
publicly traded corporation to the extent that the Employee does
not own more than 5% of any class of voting securities of such
publicly traded corporation.
4. Compensation Benefits.
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(a) In consideration of the services to be rendered by
the Employee hereunder, including, without limitation, any
services rendered by him as an officer or director of the Company
or of any subsidiary of the Company, the Company agrees to pay to
the Employee, and the Employee agrees to accept as compensation
(which payments shall be made by Miltope Group) a salary at the
annual rate of $120,000.00 per annum (the "Salary"), payable in
accordance with the Company s normal payroll policies.
Additionally, the Employee will receive a monthly automobile
allowance of $575.00, a gasoline credit card and membership to
the Capital City Club. In the event that, for any reason, the
Company is unable to make the compensation payments set forth in
the Section 4(a), hereof Miltope Group Inc. shall be responsible
for making such payments to the Employee. In addition, the
Employee:
(i) Shall participate in the Company s Executive Bonus
Plan and the Executive Insurance Coverage Program, as currently
in effect, and as amended from time to time by the Board of
Directors of the Company; and
(ii) Shall receive a stock option on the date of
commencement of employment to purchase an aggregate of 20,000
shares of the Company s Common Stock, $0.1 par value, ("Common
Stock"), under the Company s 1995 Stock Option and Performance
Award Plan of the Company (the "Plan") at such price and upon
such conditions as are contained in a stock option agreement
prepared in accordance with the "Plan" and approved by the
committee of the Board of Directors of the Company, which
administers the "Plan" and;
(b) During the term of his employment hereunder, the
Employee shall be entitled to the following employment benefits:
(i) Vacations in accordance with the Company s
policies from time to time in effect for officers and employees
of the Company, to be taken on reasonable prior notice and at a
time and in a manner designed not to interfere with the proper
operation of the business of the Company. The Employee shall
begin employment with ten (10) days of vacation available for
use. Additional vacation shall accrue at the rate of 1.25 days
per month of employment, beginning January 13, 1995.
(ii) Sick leaves in accordance with the Company s
policies from time to time in effect for officers and employees
of the Company.
(iii) Participation, subject to qualification
requirements, in all medical and hospitalization plans, health
benefit and life insurance, pension, profit sharing, fringe
benefit and other employee benefit programs of whatever nature to
the extent that such programs are available generally to
executive officers of the Company.
(c) The Employee shall be reimbursed for reasonable
and necessary expenses incurred by the Employee in performing his
employment hereunder, provided such expenses are adequately
documented in accordance with the Company s policies.
(d) The Employee shall receive a one-time sign-on
bonus (the "Bonus") in the amount of $15,000. The Bonus shall be
paid when requested by the Employee, but in any event no earlier
than November 13, 1995, and no later than May 30, 1996. If for
whatever reason, the Employee decides to leave the Company at his
own volition, prior to November, 1996, the Employee shall repay
in full the subject sign-on bonus.
5. Termination in Case of Disability, Death or for Cause
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(a) If the Employee, due to physical or mental injury,
illness, disability or incapacity, shall fail to render the
services provided for in this Agreement for a consecutive period
of three (3) months, or an aggregate of three (3) months in any
six (6) month period, the Company may, at its option, terminate
the Employee s employment hereunder upon fourteen (14) days
written notice to the Employee; provided, however, that if the
Employee has accrued sick time, as described in the Miltope
Corporation Employee Handbook, in excess of the respective
periods referred to above, the Company may not terminate the
Employee s employment pursuant to this Section 5(a) until the
completion of such sick time.
(b) If the Employee shall die during the term of this
Agreement, this Agreement and the Employee s employment hereunder
shall terminate immediately upon the Employee s death.
(c) Notwithstanding anything to the contrary in this
Agreement, the Company, upon notice to the Employee, may
terminate this Agreement and the employment of the Employee
hereunder for cause, which, for purposes of this agreement shall
mean (i) the continued and repeated failure or refusal by the
employee to perform specific directives of the Board of Directors
of the Company, which directives are consistent with the scope
and nature of the employee s duties and responsibilities, (ii)
embezzlement or any offense involving misuse or misappropriation
of money or other property of the Company, (iii) conviction of
any felony, (iv) any act of dishonesty, disloyalty or other
conduct that is materially injurious to the company, or (v)
material breach by the Employee of any of the terms of this
Agreement other than those contained in this Section 5.
6. Severance Compensation.
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In the event the Employee s employment hereunder is terminated by
the Company for any reason, including the expiration of the
Employment Term without renewal thereof, and other than for
cause, death or disability, the Company shall pay to the Employee
Severance Compensation (as defined below). For purposes of this
Agreement, the term "Severance Compensation" shall mean:
(a) In the event the Employee s employment hereunder
is terminated by the Company for any reason, other than for
cause, death or disability, and other than the expiration of the
Employment Term without renewal thereof, an amount equal to the
greater of six (6) months Salary or the balance of the Salary due
hereunder during the remainder of the Employment Term. Severance
Compensation shall also include a continuation of the benefits
described in Section 4(b) (iii) hereof, to which the Employee is
then entitled and participating, for a period equal to the longer
of six (6) months or the balance of the Employment Term hereunder
following the date of such termination.
(b) In the event that the Employee s employment
hereunder is terminated because of the expiration of the
Employment Term without renewal thereof, an amount equal to six
(6) months Salary. Severance Compensation shall also include a
continuation of the benefits described in Section 4(b) (iii)
hereof, to which the Employee is then entitled and participating,
for a period of six (6) months following the expiration of the
Employment Term.
In the event the Employee receives Severance
Compensation under this Section 6, the Employee shall not be
entitled to receive any other compensation or benefits under this
Agreement after the termination of the Employee s employment
hereunder and, as a condition to receiving such Severance
Compensation, the Employee hereby agrees that he shall have no
other claim against the Company by reason of this Agreement or
otherwise.
7. Disclosure and Assignment of Discoveries.
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(a) The Employee shall (without any additional
compensation) promptly disclose in writing to the Board of
Directors of the Company all ideas, processes, devices and
business concepts (hereinafter referred to collectively as
"discoveries"), whether or not patentable or copyrightable, which
he, while employed by the Company, conceives, develops, acquires
or reduces to practice, whether alone or with others and whether
during or after usual working hours, and which are related to the
Company s business or interests, or are used or usable by the
Company, or arise out of or in connection with the duties
performed by him hereunder; and the Employee hereby transfers and
assigns to the Company all rights, title and interest in and to
such discoveries. Upon the request of the Company, the Employee
shall (without any additional compensation), from time to time
during or after the expiration or termination of his employment,
execute such further instruments and do all such other acts and
things as may be deemed necessary or desirable by the Company to
protect and/or enforce its rights in respect of such discoveries.
(b) For purposes of this Section 7 and the following
Section 8, the term "Company" shall mean and include all
subsidiaries, parents and affiliated corporations of the Company
in existence from time to time.
8. Non-Disclosure of Confidential Information and
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Competition.
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(a) The Employee represents that he has been informed
that it is the policy of the Company to maintain as secret and
confidential all information (i) relating to the products,
processes and/or business concepts used by the Company and (ii)
relating to the customers and employees of the Company
("Confidential Information"), and the Employee further
acknowledges that such Confidential Information is of great value
to the Company and is the property of the Company. The parties
recognize that the services to be performed by the Employee are
special and unique, and that by reason of his employment by the
Company, he will acquire Confidential Information as aforesaid.
The parties confirm that it is reasonably necessary to protect
the Company s goodwill that the Employee agree, and accordingly
the Employee does hereby agree, that he will not directly or
indirectly (except where authorized by the Board of Directors of
the Company for the benefit of the Company):
A. at any time during his employment hereunder or after he
ceases to be employed by the Company, divulge to any persons,
firms or corporations, other than the Company (hereinafter
referred to collectively as "third parties") or use or cause to
authorize any third parties to use, any such Confidential
Information, or any other information regarded as confidential
and valuable by the Company which he knows or should know is
regarded as confidential and valuable by the Company (whether or
not any of the foregoing information is actually novel or unique
or is actually known to others); or
B. at any time during his employment hereunder and for a
period of one (1) year after he ceases to be employed by the
Company, solicit or cause or authorize, directly or indirectly,
to be solicited, for or on behalf of himself or third parties,
any business from third parties who were, at any time within one
year prior to the cessation of his employment hereunder,
customers of the Company with respect to computer peripheral
products or services for military, rugged or other specialized
applications; or
C. at any time during his employment hereunder and for a
period of one (1) year after he ceases to be employed by the
Company, accept or cause or authorize, directly or indirectly, to
be accepted, for or on behalf of himself or third parties, any
such business from any customers of the Company; or
D. at any time during his employment hereunder and for a
period of one (1) year after he ceases to be employed by the
Company, solicit or cause or authorize, directly or indirectly,
to be solicited for employment, for or on behalf of himself or
third parties, any persons who were at any time within one (1)
year prior to the cessation of his employment hereunder,
employees of the Company; or
E. at any time during his employment hereunder and for a
period of one (1) year after he ceases to be employed by the
Company, employ or cause or authorize, directly or indirectly, to
be employed, for or on behalf of himself or third parties, any
such employees of the Company; or
F. at any time during his employment hereunder and for any
period during which the Employee is receiving severance pay and
benefits after he ceases to be employed by the Company, unless
agreed to by the Company in writing, the Employee will not accept
employment with or participate, directly or indirectly, as owner,
stockholder, director, officer, manager, consultant or agent, or
otherwise use his special, unique or extraordinary skills or
knowledge with respect to the business of the Company or of any
affiliate of the Company in or with any business, firm,
corporation, partnership, association, venture or other entity or
person which is engaged in the business of designing, developing
and manufacturing computers, printers or computer peripheral
equipment for rugged or other specialized applications, except
that this paragraph F shall not be construed to prohibit the
Employee from owning up to 5% of the securities or a corporation
which are publicly traded on a national securities exchange or in
the over-the-counter market.
(b) The Employee agrees that he will not, at any time,
remove from the Company s premises any drawings, notebooks, data
and other documents and materials relating to the business and
procedures heretofore or hereafter acquired, developed and/or
used by the Company without prior written consent of the
President and Chief Executive Officer of the Company, except as
reasonably necessary to the discharge of his duties hereunder;
provided, however, that the removal of any such documents that
are deemed sensitive must be handled by the Employee in
accordance with the Company s United States Department of Defense
Security Manual.
(c) The Employee agrees that upon the expiration of his
employment by the Company for any reason, he shall forthwith
deliver up to the Company any and all order-books, customer
lists, logs, drawings, notebooks and other documents and
material, and all copies thereof, in his possession or under his
control relating to any Confidential Information or any
discoveries or which is otherwise the property of the Company.
(d) The Employee agrees that any breach or threatened
breach or alleged breach or alleged threatened breach by him of
any provision of this Section 8 shall entitle the Company, in
addition to any other legal remedies available to it, to apply to
any court of competent jurisdiction to enjoin such breach or
threatened breach or alleged breach or alleged threatened breach.
The parties understand and intend that each restriction agreed to
by the Employee herein shall be construed as separable and
divisible from every other restriction, and that the
unenforceability, in whole or in part, of any other restriction,
will not affect the enforceability of the remaining restrictions
that one or more of all of such restrictions may be enforced in
whole or in part as the circumstances warrant. No waiver of any
one breach of the restrictions contained in this Section 8 shall
be deemed a waiver of any future breach.
(e) The Employee hereby acknowledges that he is fully
cognizant of the restrictions put upon him by this Section 8.
9. Relocation Expenses
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a) Subject to this Agreement, the Company shall pay
the following actual expenses of the Employee incurred in
connection with, or incidental to, the relocation of the Employee
(the "Relocation"): (i) all taxes, title and closing costs
including up to two "points" in origination fees and prepaid
interest expenses; (ii) reasonable legal and lenders fees; (iii)
travel expenses including food and lodging, directly incurred in
connection with the search for and purchase of a new primary
residence in the Montgomery, Alabama, region which is within
commuting distance to the Company s facilities; (iv) closing
costs on the sale of the Employee s primary residence in Vestal,
New York; (v) expenses for the movement of household goods from
the Employee s primary residence in the Vestal, New York area, to
a new permanent residence in the Montgomery, Alabama, area; and
(vi) two trips (Employee & Spouse), to Montgomery, Alabama and
return to current residence in New York by air for the purpose of
looking for a primary residence. All relocation expenses will be
grossed up to cover applicable federal, state and local taxes.
10. Temporary Living Expenses.
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During the employment term and prior to the relocation of the
Employee, but in no event to exceed a period of 180 days, the
Employee shall be reimbursed for temporary living expenses
incurred by the Employee in an amount not to exceed $2,000 per
month, provided such expenses are adequately documented in
accordance with the Company s policies.
11. Life Insurance.
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The Employee agrees that the Company may apply for and purchase
one or more life insurance policies on the life of the Employee,
and the Employee acknowledges that the Company has an insurable
interest in the life of the Employee. The Employee agrees to
take all actions reasonably necessary for the Company to procure
such policies, including, without limitation, the execution of
any consents or applications and the undergoing of one or more
physical examinations.
12. Notices.
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All notices, requests, demands or other communications hereunder
shall be deemed to have been given if delivered in writing
personally or by certified mail to each party at the address set
forth below, or at such other address as each party may designate
in writing to the other:
If to the Company:
Miltope Group Inc.
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with a copy to:
▇▇▇▇ & Priest LLP
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
If to the Employee:
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13. Entire Agreement
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This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof, supersedes any prior
agreement between the parties, and may not be changed or
terminated orally. No change, termination or attempted waiver of
any of the provisions hereof shall be binding unless in writing
and signed by the party against whom the same is sought to be
enforced.
14. Successors and Assigns.
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This Agreement shall be binding upon and shall inure to the
benefit of the respective heirs, legal representatives,
successors and assigns of the parties hereto.
15. Severability.
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In the event that any one or more of the provisions of this
Agreement shall be declared to be illegal or unenforceable under
any law, rule or regulation of any government having jurisdiction
over the parties hereto, such illegality or unenforceability
shall not affect the validity and enforceability of the other
provisions of this Agreement.
16. Counterparts.
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This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
17. Governing Law.
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All matters concerning the validity and interpretation of and
performance under this Agreement shall be governed by the laws of
the State of Alabama.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
MILTOPE GROUP INC.,
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ by: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and CEO