Exhibit 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement, entered into as of the 16th day of
October, 1995 by and between NAI Technologies, Inc., a New York corporation (the
'Company'), and Xxxxxxx X. Xxxxxxxxx (the 'Executive').
1. Termination of Prior Agreement. Upon the execution of this
Agreement, the prior agreement entered into by and between the Executive and the
Company, dated as of February 5, 1995, shall be terminated in all respects and
be superseded by this Agreement.
2. Employment and Duties.
2.1. Duties. Upon the terms and conditions herein set forth,
the Company employs the Executive, and the Executive hereby agrees to serve as
Executive Vice President, Chief Financial Officer, Secretary and Treasurer,
effective October 16, 1995 (the 'Effective Date'). The Executive shall devote
his best efforts to such duties with the Company as the Board of Directors may
direct.
2.2. Term. The term of the Executive's employment under this
Agreement (the 'Term') shall commence on the Effective Date and shall continue
until the second anniversary of such date. Thereafter, the Term may be extended
by mutual consent of the Company and the Executive. Nothing in this Section 2.2,
however, shall limit the right of the Company or the Executive to terminate the
Executive's employment hereunder on the terms and conditions set forth in
Section 5.
3. Compensation and Other Benefits. Subject to the provisions of
this Agreement, the Company shall pay and provide the following compensation and
other benefits for services rendered during the Term:
3.1. Salary. During the Term, the Executive shall be paid
salary at a rate of $135,000 per annum ('Salary'), payable in substantially
equal installments (not less frequently than monthly) in accordance with the
Company's regular payroll practices.
3.2. Incentive Compensation.
(a) In addition to Salary, and subject to attaining the
targets set forth annually by the Board of Directors, the Company shall
pay to Executive an annual bonus (the 'Bonus') equal to eighty-seven
percent (87%) of Salary in a lump sum not later than March 31 of the
year following the applicable year. This Bonus shall be paid in
accordance with the terms of the Company's short-term incentive bonus
program.
(b) Pursuant to the Agreement the Company will loan to
Executive the equivalent of the difference between his net Salary and
the net salary he was receiving immediately prior to the execution of
this Agreement ($550.00 per week). This loan shall be repayable out of
any Bonus paid to Executive on account of work performed during the
prior year; provided, however, that upon a resignation for Good Reason
or termination without Cause the full amount outstanding under such
loans shall be discharged in full.
3.3. Additional Benefits. At all times during the Term,
Executive shall be eligible and participate in all employee benefit programs or
plans now or hereafter provided for by the Company for its executive officers in
accordance with the provisions, terms and any limitations thereof, including,
without limitation, life insurance, health, disability and other fringe benefit
plans. Any benefits that are vested as of the Effective Date, including any
pension benefits described in Section 3.5, shall not be affected by this
Agreement.
3.4. Vacation. Executive shall be entitled to three (3) weeks
of paid vacation for each twelve-month period of employment during the Term.
3.5. Pension. The Executive shall continue to participate in
the Company's basic and supplemental retirement plans, and shall be credited
with all prior service for purposes of vesting and determining the Executive's
benefit under such plans.
3.6. Automobile Allowance. The Company shall provide Executive
with the use of a Company car and shall pay or reimburse Executive for all
reasonable expenses incurred in connection with such car for repairs, fuel,
maintenance and insurance, in accordance with the Company's automobile use
policy.
4. Stock Options. Effective October 16, 1995, the Executive
shall be granted options to purchase one hundred
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and twenty-five thousand (125,000) shares of Common Stock of the Company at a
per share exercise price of two dollars and fifty cents ($2.50) (the 'Stock
Options'). All prior options granted to the Executive by the Company are hereby
canceled and are no longer of any force or effect. The Stock Options shall vest
during the periods of the Executive's continued employment with the Company as
follows:
On or after twelve (12)
months from the Effective Date: 62,500 shares
On or after twenty (24)
months from the Effective Date: 62,500 shares
The right of exercise shall be cumulative. All such options, to the extent
exercisable, must be exercised within six (6) years of the date hereof, and
shall be in the form of the Company's standard stock option agreements.
Notwithstanding anything contained herein to the contrary, if: (a) the
Executive's employment is terminated by the Company without Cause or he resigns
for Good Reason, all Stock Options will be 100% vested and will extend for one
year after such termination or resignation; and (b) the Executive's employment
is terminated by the Company for Cause or he resigns his employment with the
Company without Good Reason, all Stock Options will terminate thirty (30) days
after such termination or resignation.
5. Termination of Employment.
5.1. Cause. 'Cause' shall mean fraud, negligence, conflict of
interest, willful malfeasance or willful misfeasance in office.
5.2. Good Reason. 'Good Reason' shall mean:
(a) without the express prior written consent of the
Executive, a material diminution or limitation of the Executive's
position, duties or responsibilities with the Company from those in
existence on the Effective Date (or, if greater, the highest
permanent-assignment level in effect thereafter) or the assignment to
the Executive of duties inconsistent with the position, duties,
responsibilities or status of the Executive as of the Effective Date
(or, if greater, the highest permanent-assignment level in effect
thereafter); or
(b) any failure by the Company to pay, or any reduction by the
Company of, the base Salary of the Executive as in effect on the
Effective
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Date or as the same may be increased from time to time thereafter; or
(c) the failure of the Company to provide the Executive with
the opportunity to participate, on terms no less favorable than those
existing on the Effective Date, in any incentive benefit, bonus or
compensation, insurance, pension or other employee benefit plan of the
Company in effect on the Effective Date (or plans and benefits which
are, in the aggregate, no less favorable to the Executive than those
the Executive enjoyed on the Effective Date) unless such failure
results from the Company's termination or amendment of any such plan in
response to a change in applicable statute or regulation, including any
termination or amendment resulting from a materially adverse alteration
of the tax treatment of any such plan to the Company or to plan
participants; provided, however, that Good Reason shall not include any
reduction in such benefit by the Company on a Company-wide basis.
5.3. Notice of Good Reason.
Unless the Executive provides written notification of his
intention to resign within twenty (20) business days after the Executive knows
or has reason to know of the occurrence of any such event constituting Good
Reason, the Executive shall be deemed to have consented thereto and such event
shall no longer constitute Good Reason for purposes of this Agreement. If the
Executive provides such written notice to the Company, the Company shall have
twenty (20) business days from the date of receipt of such notice to effect a
cure of the event described therein and, upon cure thereof by the Company to the
reasonable satisfaction of the Executive, such event shall no longer constitute
Good Reason for purposes of this Agreement.
5.4. Termination For Cause; Resignation
Without Good Reason.
(a) Rights on Termination. If, prior to the expiration of the
Term, the Executive's employment is terminated by the Company for Cause
or the Executive resigns from this employment without Good Reason, the
Executive shall be entitled to payment of his Salary accrued through
the date of such termination or resignation, plus any accrued but
unpaid vacation benefits. Except as may be provided by law or expressly
provided under the term of any plan or arrangement applicable to the
Executive, the Executive shall have no right under this Agreement or
otherwise
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to receive any other compensation or benefits, or to participate in any
other plan, arrangement or benefit, with respect to future periods
after such termination or resignation of Employment.
(b) Notice of Termination for Cause. Termination of the
Executive's employment for Cause shall be communicated by delivery to
the Executive of a copy of a resolution duly adopted by the Board
finding that in the good faith opinion of the Board an event
constituting Cause for termination in accordance with Section 5.1 has
occurred and specifying the particulars thereof (a 'Notice of
Termination'). In the event of termination for Cause as a consequence
of the events described in Section 5.1 or any other event described in
Section 5.1 that the Board determines in good faith is not susceptible
of cure, the effective date of termination shall be the date of the
Notice of Termination or such later date as may be specified in such
notice. In the event the Executive's employment is terminated for Cause
(unless the Board has determined in good faith that the relevant giving
rise to Cause is not susceptible of cure), the Executive shall have
twenty (20) business days from the date of receipt of such Notice of
Termination to effect a cure of the event described therein and, upon
cure thereof by the Executive to the reasonable satisfaction of the
Board, such event shall no longer constitute Cause for purposes of this
Agreement. The effective date of termination for Cause that has been
subject to a cure period as described in the immediately preceding
sentence which did not result in a cure to the reasonable satisfaction
of the Board shall be the date immediately succeeding the last date of
the twenty (20) business day cure period.
(c) Notice of Resignation Without Good Reason.
The date of resignation by the Executive without Good Reason
shall be the date specified in a written notice of resignation from the
Executive to the Company. The Executive shall provide at least sixty
(60) days' advance written notice of resignation.
5.5. Notice of Termination Without Cause.
The date of termination of employment without Cause shall be
the date specified in a written notice of termination to the Executive, provided
that the Company shall provide at least twenty (20) business days' written
notice of such termination.
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5.6. Notice of Resignation for Good Reason.
The date of resignation for Good Reason shall be the date
specified in a written notice of resignation from the Executive to the Company,
provided, however, that no such written notice shall be effective unless the
twenty (20) business day cure period specified in Section 5.3 has expired
without the Company having corrected, to the reasonable satisfaction of the
Executive, the event or events.
5.7. Termination Without Cause;
Resignation For Good Reason.
(a) Severance Amount. If, prior to the expiration of the Term,
the Executive's employment is terminated by the Company without Cause,
or the Executive resigns from his employment for Good Reason, the
Company shall pay to the Executive his Salary accrued up to and
including the effective date of such termination or resignation, plus a
pro rata share of unused vacation for the full year plus a pro rata
bonus under the Company Bonus Plan, if the Board in its sole discretion
so determines. In addition, the Company shall pay to the Executive a
severance payment equal to the greater of (A) his salary, at the rate
in effect at time of such termination or resignation, for the remainder
of the Term and (B) one year's salary, at the rate in effect at the
time of such termination or resignation, in a lump sum ('Severance
Amount').
(b) Other Benefits. In the event of the Executive's
termination without Cause or his resignation for Good Reason, the
Executive shall continue to participate on the same terms and
conditions as in effect immediately prior to such termination or
resignation in each pension, life insurance, health, disability and
other fringe benefit plan or program provided to the Executive pursuant
to Sections 3.3, 3.5 and 3.6 at the time of such termination or
resignation until the earlier of (A) six (6) months following the date
of such termination or resignation or, if the Executive is required to
elect such benefits immediately following such termination or
resignation, twelve (12) months following the date of such termination
or resignation, and (B) such time as the Executive is eligible to be
covered by a comparable program of a subsequent employer. The Executive
agrees to notify the Company promptly if he becomes eligible to
participate in any pension or other benefit plans, programs or
arrangements of another employer. Notwithstanding anything contained
herein to the contrary, the Company shall have no obligation to
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continue to maintain any plan or program solely as a result of the
provisions of this Agreement nor provide any level of benefits if
applicable law either prevents the Executive from participating in any
such plan or program or would cause the Company to suffer any loss of
tax benefits as a consequence of the Executive's continued
participation during the Term.
(c) Automobile: If the Company has provided the Executive with
the use of an automobile on a continuous basis prior to the termination
without Cause or resignation for Good Reason, the Executive shall be
given the option to purchase such automobile on the terms outlined in
the Company policy with respect thereto at the value in effect two
years after the date of the termination without Cause or resignation
for Good Reason.
5.8. Termination Due to Death or Disability.
(a) In the event of the Executive's disability, as hereinafter
defined, or death, the Company shall be entitled to terminate his
employment. If the Executive's employment shall terminate due to
disability or death, any Salary earned by the Executive up to the date
of such termination and any pro rata bonus to that date shall be paid
to the Executive or his estate, as appropriate.
(b) As used herein, the term 'disability' shall mean physical
or mental disability as a result of which the Executive is unable to
perform his duties hereunder on substantially a full-time basis for any
period of four (4) consecutive months. Any dispute as to whether or not
the Executive is so disabled shall be resolved by a physician,
reasonably acceptable to the Executive and the Board, whose
determination shall be final and binding upon both the Executive and
the Company.
6. Nondisclosure of Confidential Information. The Executive
shall be bound by the confidentiality policy of the Company. The Executive shall
not, except as may be necessary in the discharge of duties with the Company or
as may be required by applicable law or regulations, disclose any confidential
information, knowledge or data obtained by the Executive prior to the date of
this Agreement or during the Executive's employment concerning the Company or
the business of the Company so long as such information is not publicly
available.
7. Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the breach
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of this Agreement that cannot be resolved by the Executive and the Company
shall, at the instance of either the Executive or the Company, be submitted to
arbitration in accordance with New York law and the procedures of the American
Arbitration Association, with all hearings to be conducted in Colorado. The
determination of the arbitrator shall be conclusive and binding on the Company
and the Executive and judgment may be entered on the arbitrator's award in any
court having jurisdiction.
8. Legal Expenses. The Company shall pay all reasonable costs
and expenses, including attorneys' fees and disbursements, of the Company and,
at least monthly, the Executive in connection with any legal proceedings (in the
case of the Executive any legal proceedings brought or maintained in good faith)
(including, but not limited to, arbitration), whether or not instituted by the
Company or the Executive, relating to the interpretation or enforcement of any
provision of this Agreement.
9. Assignability. The respective rights and obligations of the
Executive and the Company under this Agreement shall inure to the benefit of and
be binding upon the heirs and legal representatives of the Executive and the
successors and assigns of the Company. The Executive's rights and obligations
under this Agreement may not be assigned or alienated and any attempt to do so
by the Executive shall be void. Any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company, shall assume 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. The provisions of
this Section 9 shall continue to apply to each subsequent employer of the
Executive hereunder in the event of any subsequent merger, consolidation or
transfer of assets of such subsequent employer.
10. Severability. If any provision of this Agreement is deemed
to be invalid or unenforceable or is prohibited by the laws of the state or
place where it is to be performed, this Agreement shall be considered to be
divisible as to such provision and such provision shall be inoperative in such
state or place and shall not be part of the consideration moving from either of
the parties to the other. The remaining provisions of the Agreement, however,
shall be valid and binding and of like effect as though such provision were not
included.
11. Miscellaneous. This Agreement is to be construed and
enforced in accordance with the internal substantive laws of the State of New
York, irrespective of
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the principles of conflicts of law. The waiver of any breach of this Agreement
by any party shall not be construed as a waiver of any subsequent breach by any
party. This Agreement may not be changed orally, but only by an agreement in
writing signed by the parties to this Agreement.
IN WITNESS WHEREOF, the Company and the Executive have
executed this Agreement as of the day and year first above written.
NAI TECHNOLOGIES, INC. XXXXXXX X. XXXXXXXXX
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
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Title: President
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