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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Employment Agreement") is entered into
as of the 18th day of July, 1996 between XXXXXXX X. XXXXXX (the "Employee") and
TRANSCRYPT INTERNATIONAL, INC., a Delaware corporation (the "Company").
The Company wishes to employ the Employee as President and Chief
Operating Officer of the Company on the terms set forth in this Employment
Agreement, and the Employee wishes to accept such employment on such terms.
THEREFORE, in consideration of the mutual promises set forth herein,
it is mutually agreed between the parties as follows:
Section 1. EMPLOYMENT AND TERM. The Company hereby employs the
Employee and the Employee hereby accepts employment as President and Chief
Operating Officer of the Company on the terms of this Employment Agreement,
commencing as of the date hereof and continuing until the second anniversary of
such date unless terminated earlier in accordance with the provisions of
Section 5 hereof.
Section 2. DUTIES AND AUTHORITY. The Employee's duties shall be as
determined by the Board of Directors and Chairman of the Board of Directors.
Section 3. COMPENSATION.
(a) Base Salary. The Employee will receive a base salary
during the term of this Employment Agreement of $165,000 per year
("Base Salary"), which shall be payable in approximately equal
biweekly installments. Base salary will be subject to annual review
and can be increased with concurrence of the Board of Directors.
(b) Bonus. The Employee shall receive an annual bonus in
an amount to be determined by the Company's Board of Directors if the
Company meets or exceeds the projections of the Company's performance
set forth in the Strategic Plan distributed to the Board of Directors.
At a minimum, Employee shall receive a bonus equal to 20% of his
salary if the Company meets its annual sales goal and 20% of his
annual salary if the Company meets its profit goal. Such bonus shall
be due and payable on or after the 30th day following the close of the
Company's fiscal year.
(c) Additional Benefits. The Employee will also receive
such additional employee benefits as the Company may from time to time
make available to its executive officers, including paid vacations,
pension benefits, qualified profit-sharing plans, employee group
insurance and disability insurance. Benefits will be at least equal
to those received as of the date of this Employment Agreement.
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(d) Withholdings. All payments made to the Employee
pursuant to this Employment Agreement shall be reduced by all required
federal, state and local withholdings for taxes and similar charges
and by all contributions or payments required to be made by the
Employee in connection with any employee benefit plan maintained by
the Company.
Section 4. REIMBURSEMENT FOR EXPENSES. The Employee is expected to
incur certain expenses on behalf of the Company for travel, promotion,
telephone, entertainment and similar items. The Company will reimburse the
Employee for all ordinary, necessary and reasonable amounts of such expenses
incurred by the Employee, which amounts shall be payable promptly upon receipt
of reasonable written documentation signed by the Employee itemizing such
expenses.
Section 5. Early Termination of Term; Severance Payment. This
Employment Agreement shall terminate prior to the date of termination set forth
in Section I above upon the first to occur of:
(a) the determination by the Board of Directors that the
Employee has become disabled and shall not be able to continue his
service to the Company; or
(b) the Employee's death; or
(c) the Employment Agreement is terminated by the Company
by reason of the Employee's continuing willful neglect of his duties
under this Employment Agreement, the theft or misappropriation of the
Company's assets by the Employee or fraud of the Employee under the
Company.
Section 6. RESTRICTIVE COVENANT. The Employee shall execute,
concurrently with this Employment Agreement, a Noncompete Agreement in the form
attached hereto as Exhibit A.
Section 7. COMPANY OPTION PLAN. Within one year from the date of this
Agreement, the Company shall adopt a new Option Plan in which the Employee
shall participate on the terms and conditions approved by the Board of
Directors. The provisions of the old Option Plan dated December 1995 will
remain in effect.
Section 8. AMENDMENTS. No change, modification, waiver, discharge,
amendment or addition to this Employment Agreement shall be binding unless it
is in writing and signed by the Company and the Employee.
Section 9. ENTIRE AGREEMENT. This Employment Agreement contains the
entire understanding and agreement between the Company and the Employee and
supersedes any prior agreements between them pertaining to the Employee's
employment with the Company. There are no representations, warranties,
promises, covenants or understandings between the Company and the Employee with
respect to such employment other than those expressly set forth in this
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Employment Agreement. This Employment Agreement takes precedence over other
conflicting agreements with Employee.
Section 10. GOVERNING LAW. This Employment Agreement shall be
governed by the substantive laws of the State of Nebraska.
Section 11. NONASSIGNABILITY; SUCCESSORS. The obligations of the
Employee under this Employment Agreement are not assignable by him. Except as
provided in the immediately preceding sentence, this Employment Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
successors.
Section 12. NOTICES. Any notice required to be given in writing by
any party to this Employment Agreement may be personally delivered or mailed by
registered or certified mail to the last known address of the party to be
notified. Any such notice personally delivered shall be effective upon
delivery and any such notice mailed shall be effective four business days after
the date of mailing, by registered or certified mail with postage prepaid to
the last known address of the party to be notified.
Section 13. SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Employment Agreement shall not affect the other
provisions of this Employment Agreement, and this Employment Agreement shall be
construed in all respects as if such invalid or unenforceable provision were
omitted.
Section 14. HEADINGS. The section and other headings contained in
this Employment Agreement are for reference purposes only and shall not affect
the interpretation of this Employment Agreement.
Section 15. CONSTRUCTION. Whenever required by the context,
references to the singular shall include the plural, and the masculine gender
shall include the feminine gender.
IN WITNESS WHEREOF, the Company has caused this Employment Agreement
to be executed on its behalf and the Employee has signed his name hereto,
effective as of the date first written above.
TRANSCRYPT INTERNATIONAL, INC.,
a Delaware corporation
By s/s Xxxx X. Xxxxxx
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Printed Name Xxxx X. Xxxxxx
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Its Chief Executive Officer
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Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX, Employee
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EXHIBIT A
NONCOMPETE AGREEMENT
TRANSCRYPT INTERNATIONAL, INC., a Delaware corporation (the "Company")
(for the purposes of this Noncompete Agreement, the term "Company" shall
include affiliates of Transcrypt International, Inc.) and XXXXXXX X. XXXXXX
("Employee") agree as follows:
1. In consideration of the Company employing Employee as set
forth in that certain Employment Agreement (the "Agreement") of even date
hereto executed by and among the Company and Employee, Employee hereby agrees
to adhere to the following terms and conditions:
Employee expressly covenants and agrees that at no time during the
effective time of the Agreement will it for itself or on behalf
of any other person, partnership, firm, association or corporation in
any territory in which the Employee is acting pursuant to the
Agreement (1) open or operate a business which would be a competitor
of the Company, (2) act as an employee, agent, advisor or consultant
of any then existing competitor of the Company, (3) solicit or accept
business from any of the Company's competitors, unless authorized by
the Company, (4) divert any business from the Company by influencing
or attempting to influence any present customers or the Company or (5)
attempt to attract any supplier away from the Company or use its
information regarding the Company's suppliers in any way which would
detrimentally affect the Company. Employee further covenants and
agrees that for two years following the termination of the Agreement,
whether such termination is voluntary or involuntary, he will not for
himself or on behalf of any other person, partnership, firm,
association or corporation in any territory in which the Company has
done business during the 12 months immediately prior to the
Agreement's termination (1) directly or indirectly solicit or accept
business from any of the Company's present customers or customers it
serviced in said territory within the last 12 months of the effective
term of the Agreement, (2) divert any business from the Company by
influencing or attempting to influence any present customers of the
Company or (3) attempt to attract any supplier away from the Company
or use its information regarding the Company's suppliers in any way
which would detrimentally affect the Company.
2. By signing this agreement, Employee expressly acknowledges
that the territorial limitations, duration and scope of this agreement are fair
and reasonable. This Noncompete Agreement shall survive the termination of the
Agreement.
3. Employee further agrees that the Company shall be entitled to
maintain proceedings in any court of competent jurisdiction, either at law or
in equity, for any breach of this agreement by Employee to enforce the specific
performance of this agreement and/or to obtain damages for any breach thereof,
and without regard to any or all remedies sought by the
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Company, the Company shall be entitled to recover reasonable attorneys' fees
incurred in enforcing this agreement.
4. This agreement supersedes any prior agreement between the
Employee and the Company pertaining to the subject hereof. In the event that
any portion of this agreement is declared invalid or illegal by final judgment
of any court of competent jurisdiction, the remainder of this agreement shall
remain in full force and effect, notwithstanding the invalidity or illegality
of the other portion.
5. This agreement shall be governed by the laws of the State of
Nebraska.
6. This agreement may be executed in duplicate counterparts, each
of which shall be deemed to be an original, and all of which shall constitute
one in the same agreement.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed as of the 18th day of July, 1996.
TRANSCRYPT INTERNATIONAL, INC.,
a Delaware corporation
By /s/ Xxxx X. Xxxxxx
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Printed Name Xxxx X. Xxxxxx
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Its Chief Executive Officer
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Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
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