EMPLOYMENT AGREEMENT
AGREEMENT, made as of the 1st day of June, 1999 between Xxxx X.
Xxxxxxxxx ("Executive") and Detection Systems, Inc., a New York corporation
("Company").
WITNESSETH:
In consideration of the mutual covenants contained herein, the
parties agree as follows:
1. Offer of Employment and Term. The Company agrees to employ
Executive in the capacities of Chairman, President, and Chief Executive
Officer for the Term of Employment commencing as of the date of this
Agreement (the "Commencement Date"). The Company agrees to provide
Executive with such office and such operational and administrative support
as is consistent with his position. Executive's employment under this
Agreement will be in the vicinity of Rochester, New York. "Term of
Employment" as used herein shall mean the period commencing on the
Commencement Date and continuing thereafter for a period of five years,
unless the Company and Executive agree in writing to extend the Term of
Employment, in which case the Term of Employment shall have the meaning as
determined at that time; provided, however, that Executive's employment may
be earlier terminated as hereinafter set forth, in which event the Term of
Employment shall mean the period from the Commencement Date through the
date of such earlier termination. Except as provided in Section 4 below,
upon the end of the Term of Employment hereunder, the Non-Competition,
Disability, and Retirement Agreement attached as Exhibit A (hereinafter the
"N-CDR Agreement") shall become effective as provided in Sections 1 and 19
thereof. Whenever the N-CDR Agreement becomes effective, this Agreement
shall terminate, except for any accrued liabilities hereunder.
Notwithstanding any of the other provisions of this Agreement,
however, this Agreement will automatically terminate upon Executive's death
and thereupon all payments and non-vested benefits payable hereunder shall
cease, except for any death benefits and survivor benefits for his spouse
which are provided under the Company's employee plans or the N-CDR
Agreement, which shall upon the death become effective pursuant to Sections
1 and 19 thereof.
The Company may terminate this Agreement due to Executive's permanent
disability, as determined by the Board of Directors in good faith based on
the certification of an independent M.D., and in any such case the N-CDR
Agreement shall thereupon become effective pursuant to Sections 1 and 19
thereof.
2. Executive's Acceptance. Executive hereby accepts the executive
employment described in this Agreement. Executive further agrees that he
will devote himself during reasonable business hours to performance of the
duties and responsibilities of his office during the Term of Employment.
Executive also agrees not to disclose trade secrets of the Company, or to
engage in any other activity which is detrimental to the interests of the
Company, during the Term of Employment.
3. Compensation and Benefits. The compensation and benefits which
the Company shall provide Executive for his services during the Term of
Employment shall include but not be limited to:
(a) Base salary equal to or greater than $335,486 per year.
(b) Participation in all Company executive incentive compensation
plans. Such incentive compensation plans shall include an annual cash
bonus equal to an amount not less than 5% of the amount by which the
Company's pre-tax profits exceed 4% of net sales. If Executive is employed
by the Company for only part of a year or his employment is terminated
before year end, the bonus for that year will be pro rated based on the
portion of the year Executive was employed by the Company (except as
otherwise provided in Section 4 below).
(c) Grants of options under any Company employee stock option plan,
where permitted by the Plan, in such amounts as are determined by the Board
of Directors or the Committee of the Board administering such plan;
(d) Participation in all Company pension, deferred compensation,
insurance, health and welfare or other benefit plans in which the Company's
senior executives are entitled to participate; and
(e) Continuation of all plans in which the Executive participates,
including existing fringe benefits and executive perquisites to which
Executive is entitled as of the date of this Agreement.
4. Termination Without Cause. The Company may terminate
Executive's employment without Cause as hereinafter defined and for any
reason. If Executive is terminated without Cause, Company will continue to
compensate and provide benefits to Executive as if he had continued in the
Company's employment under this Agreement for the then remaining balance of
the Term of Employment or for a period of three (3) years from the date of
termination, whichever is longer. So long as Executive is being paid
currently under this Section 4, Executive shall comply with Section 2 of
the N-CDR Agreement. At the end of the period set forth above in this
Section 4 (during which period the Company shall continue to compensate
Executive pursuant to this Agreement), the N-CDR Agreement shall become
effective in accordance with Sections 1 and 19 thereof.
5. Termination for Cause. The Company may terminate Executive's
employment immediately and without prior notice to the Executive for
"Cause" as defined below. The existence of Cause shall be determined by
the Company's Board of Directors (other than Executive) acting in good
faith. "Cause" is defined, and shall be limited to, a good faith
determination by the Board of Directors that any of the following has
occurred:
(a) Executive has knowingly misappropriated for his benefit a
material amount of funds or property of the Company;
(b) Executive has obtained a material personal profit from any
illegal Company transaction with a third party;
(c) Executive has obtained a material personal profit from the use
of the Company's trade secrets other than on its behalf;
(d) The Company has suffered material financial harm from knowingly
illegal action by Executive, other than on the Company's behalf or for its
benefit; or
(e) Willful and prolonged absence from work by Executive or willful
refusal by Executive to perform his duties and responsibilities under
circumstances which, in either case, constitute a substantial abdication of
Executive's duties and responsibilities of his office, provided that
Executive has been given written notice of that absence or refusal and
Executive has not substantially cured the stated Cause within 60 days
thereafter (but action taken by Executive in reliance upon Section 7 below
shall not be deemed an absence or refusal for purposes of this Section 5).
If Executive's employment is terminated by the Company for Cause, he
shall continue to be paid compensation and provided benefits in accordance
with the provisions of Section 4 above and the N-CDR Agreement, provided
that his cash compensation shall be reduced by the amount of any monetary
damage suffered by the Company due to the Cause, as determined by a court
of competent jurisdiction, prorated over the actuarially determined term of
such payments and based on a final court determination; and at the end of
the period specified in Section 4, the N-CDR Agreement shall become
effective in accordance with Sections 1 and 19 thereof.
6. Resignation. Executive may voluntarily resign from full time
employment with the Company, effective no earlier than 90 days after the
Executive has given written notice thereof to the Company's Secretary or
the Chairman of the Compensation Committee of the Board of Directors and
the Term of Employment shall terminate on the effective date set forth in
the notice. If Executive resigns or otherwise voluntarily leaves the
Company's employment prior to a Change in Control, he shall forfeit all
compensation and non-vested benefits, from and after the effective date of
such resignation, except that upon that effective date the N-CDR Agreement
shall become effective in accordance with Sections 1 and 19 thereof.
7. Change in Control.
(a) A "Change in Control" of the Company shall be deemed to have
occurred if:
(1) any "person," as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (other than the Company or any
corporation owned, directly or indirectly, by the shareholders
of the Company in substantially the same proportions as their
ownership of stock of the Company), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the
Company's then outstanding securities;
(2) there is elected 35% or more of the members of the
Board of Directors of the Company without the approval of the
nomination of such members by a majority of the Board serving
prior to such election;
(3) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than (i) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent more than 75% of the combined
voting power of the voting securities of the Company, or such
surviving entity, outstanding immediately after such merger or
consolidation; or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no "person" (as defined above) acquires
more than 25% of the combined voting power of the Company's
then-outstanding securities; or
(4) The shareholders of the Company approve an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets.
(b) If:
(i) any Change in Control of the Company occurs while
this Agreement is effective, and
(ii) Executive gives notice to the Company or the Company
(acting upon a determination of its Board of Directors)
gives notice to Executive, in either case to the effect that
the six month period called for by this Section 7(b) shall
begin to run, and
(iii) Executive's employment is terminated by Executive
or by the Company (other than for Executive's death or
disability) within six months after the date the notice
provided for in (ii) above is received (in Executive's case
the termination being effected by Executive giving notice
within that six month period, effective within 30 days
after the notice is given, that his employment is
terminated), regardless the reason, if any, and regardless
which party gave the notice provided for in (ii) above,
then the Company shall, upon receipt of said notice, immediately pay,
transfer, and provide to Executive the following amounts, benefits,
and assets:
(1) The Company shall pay to Executive the sum of
Executive's full base salary through the effective date of
termination of his employment at the rate in effect at the time
of termination or at the time the Change in Control occurs,
whichever is higher, and an amount equal to the amount of any
bonus which has been earned by him but not yet paid to him.
These two amounts shall be paid to Executive in a lump sum
within five days following the effective date of termination,
or in the case of a bonus which is not readily calculable at
that time, within five days after the bonus can be calculated.
(2) The Company shall pay to Executive an amount equal
to three times the highest total cash compensation (including
base salary and bonuses) paid Executive in any of the Company's
last three fiscal years completed prior to such termination.
This amount shall be paid to Executive as provided in the last
sentence of subsection (1) above.
(3) The Company shall pay to Executive an amount equal
to the total amounts that would be expended for the benefits to
be provided Executive under Section 3 above if Executive had
continued to be an employee of the Company for three (3) years
after the termination (such as, but not limited to, the life,
accident, disability, health and travel insurance, and other
benefits in effect for Executive at the time notice of
termination is given or at the time the Change in Control
occurs, whichever may be higher in the case of each benefit).
This amount shall be paid to Executive as provided in the last
sentence of subsection (1) above either in cash or in the form
of an annuity contract issued by an independent insurance
company licensed to do business in New York that will provide
payment of all such total amounts.
(4) All options and other rights that Executive may
hold to purchase or otherwise acquire Common Stock of the
Company shall immediately become exercisable in full for the
total number of shares that are or might become purchasable
thereunder, in each case without further condition or
limitation except the giving of notice of exercise and the
payment of the purchase price thereunder (but without amendment
of the plan under which they were issued). At his discretion,
Executive may elect to surrender to the Company his rights in
any such options and rights held by him and, upon that
surrender, the Company shall pay him an amount in cash equal to
the aggregate spread between the exercise prices of all those
options and rights and the value of the Common Stock
purchasable thereunder (or of any other security into which the
Common Stock has been exchanged or converted) as of the date of
the termination of employment, the value to be determined by
the reported last sale price of the Common Stock or that other
security (or the mean between the reported last bid and asked
prices) on that date on NASDAQ (or, if it is not NASDAQ, on
whatever may then be the principal exchange or quotation system
on which the Company's Common Stock or that other security is
traded at that time).
(5) The Company shall repay any policy loans previously
taken on the Company's insurance policies on Executive's life
(provided that the directors of the Company were given written
notice promptly after the making of any such loans which were
made while Executive was the chief executive officer of the
Company), and then shall transfer to Executive any and all of
its right, title, and interest in and to all Company life
insurance policies on Executive's life (and upon that transfer,
Executive shall be deemed to have released the Company from any
and all obligations it then owes to him to maintain and pay
premiums on those policies, all other provisions of any
agreements under which those policies were agreed to be
maintained, however, to remain in effect).
(6) In addition to the amounts specified in clauses (1)
through (5) of this paragraph (b), the Company shall pay to
Executive, at the same time as those amounts are paid, an
additional amount which, after taking into account all federal,
state, and local income and excise taxes that Executive is
required to pay with respect to receipt of the additional
amount under this clause (6), will render the net after-tax
payment to Executive under this clause (6) equal to the sum of:
(A) all federal, state, and local excise taxes
that Executive is required to pay with respect to the
payments made pursuant to clauses (1) through (5) above;
and
(B) all federal, state, and local income and
excise taxes that Executive is required to pay with
respect to the payment made pursuant to this clause (6).
The foregoing amounts of federal, state, and local income and
excise taxes shall be determined initially by a nationally
recognized firm of independent public accountants retained by
Executive at his expense or, at Executive's option, by
independent public accountants at the Company's expense, and
such determination and the basis therefor shall be furnished in
writing to Executive and the Company. Payment shall be made by
the Company in accordance with that initial determination
regardless whether there is a dispute over the accuracy
thereof. If either party disputes that initial determination
the matter shall promptly be referred to a nationally
recognized firm of independent public accountants selected by
the Executive (which firm shall not have been involved in the
initial determination), and Executive and the Company shall
promptly furnish to that firm such information as it reasonably
requests. The Company shall make such additional payment to
Executive or Executive shall refund to the Company, as the case
may be, in accordance with the latter firm's determination.
The fees and expenses of that firm shall be borne by the
Company.
(c) The Company may withhold from any payments due to Executive
under paragraph (b) such amounts as its independent public accountants may
determine are required to be withheld under applicable federal, state, and
local tax laws.
(d) If applicable, the provisions of Section 7(b) shall control
over the provisions of Sections 4 and/or 5. In the event that Executive's
employment is not terminated by the Company or the Executive within the six
month period specified in Section 7(b), the provisions of Sections 4 and 5
once again shall be applicable thereafter.
(e) In addition, if any Change in Control of the Company occurs
while this Agreement is effective, the Company shall purchase and fully pay
for an annuity policy sufficient to pay the retirement benefits called for
by Section 9 of the N-CDR Agreement and shall transfer ownership thereof to
a "rabbi" trust for the benefit of Executive (but subject to the claims of
Company creditors to the extent required under applicable tax laws so that
the transfer to the trust will not itself be an event upon which Executive
recognizes income for federal or state income tax purposes). In lieu of
purchasing the annuity policy, the Company may deposit cash into such a
trust sufficient to provide, based on assumptions believed reasonable in
the written opinion of a nationally recognized employee benefits
organization, for assuring payment of those retirement benefits to
Executive and his spouse.
(f) In addition to payment of the amounts set forth in Section 7(b)
above and the funding of the "rabbi" trust as provided in Section 7(e)
above, beginning on the effectiveness of any termination of employment to
which Section 7(b) applies, the Company shall compensate and pay benefits
to and may retain the consulting services of Executive in accordance with
the N-CDR Agreement, which shall become effective in accordance with
Sections 1 and 19 thereof.
8. Retirement. The Company and Executive hereby agree that
Executive shall retire from full-time employment with the Company effective
with the close of business on December 31 of the year in which Executive
attains the age of 69, and beginning on January 1 of the next year, the
Company will pay Executive retirement benefits for his lifetime and for his
spouse's lifetime, if his spouse survives him, in accordance with the
applicable provisions of the N-CDR Agreement, which shall become effective
in accordance with Sections 1 and 19 thereof.
9. Change in Employment Status. If approved by the Executive and
the Board of Directors during the Term of Employment, Executive may become
an independent consultant with terms and conditions of that relationship
substantially equal in all respects to those set forth in the N-CDR
Agreement, which in that event shall become effective in accordance with
Sections 1 and 19 thereof.
.
10. Expenses and Interest. If the Company is found by a court of
competent jurisdiction to have breached this Agreement, the Company shall
pay the costs and expenses (including reasonable attorneys fees and related
expenses) incurred by Executive in any litigation seeking damages in
respect of such breach or to enforce the performance of this Agreement by
the Company, together with interest on each installment of wages or
benefits paid late by the Company calculated to the date of actual payment
at an annual rate equal to 3% over the highest rate then paid by the
Company under its short term borrowing arrangements with an independent
institutional lender (and if there is no such lender, then 4% above the
prevailing prime rate as reported in the Wall Street Journal).
.
11. Notices. Any notice required or permitted to be given
hereunder shall be in writing and may be delivered personally or given by
prepaid, certified, return receipt requested, first class mail addressed:
(a) if to the Company, to at least two members of the Board of
Directors at the addresses to which the Company then sends correspondence
to them;
(b) if to Executive, at his home mailing address on file with the
Company; and
(c) to such other address as the party to which such notice is to
be given shall have notified (in accordance with the provisions of this
Section 11) as its substitute address for the purpose of this Agreement.
Any notice given as aforesaid shall be deemed conclusively to have
been received on the fifth business day after such mailing.
12. Amendment. It is agreed that no change or modification of this
Agreement shall be made except in a writing signed by both parties.
13. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of
the remaining provisions shall not be affected thereby.
14. Law Governing. The validity, interpretation, and effect of
this Agreement shall be governed by the laws of the State of New York.
15. Entire Agreement. This Agreement, including the N-CDR
Agreement, which is being executed simultaneously herewith, contains the
entire understanding of the parties with respect to the employment of
Executive by the Company. There are no restrictions, agreements, promises,
warranties, covenants, or undertakings other than those expressly set forth
herein. This Agreement supersedes all prior agreements, arrangements, and
understandings between the parties, whether oral or written, with respect
to the employment of Executive.
16. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the heirs, legatees, administrators,
successors, and assigns of the respective parties.
IN WITNESS WHEREOF, Executive, for himself, and the undersigned
director of the Company, acting on behalf of the Company by authority of
its Board of Directors, have executed this Agreement as of the day and year
first above written.
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Executive
DETECTION SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Chairman of the
Compensation Committee of the
Board of Directors
Attachment:
Exhibit A - Non-Competition, Disability, and Retirement
Agreement
EXHIBIT A
NON-COMPETITION, DISABILITY, AND RETIREMENT AGREEMENT
AGREEMENT made as of the 1st day of June, 1999 between Xxxx X.
Xxxxxxxxx ("Executive") and Detection Systems, Inc., a New York corporation
("Company"). It is the intent that this Agreement will supersede the
Employment Agreement, dated concurrently herewith, upon the occurrence of
one of the contingencies set forth in Section 19 below.
WITNESSETH:
In consideration of the mutual covenants contained herein, the
parties agree as follows:
1. Effectiveness and Terms. This Agreement shall be binding on
the parties upon its execution, which is concurrent with execution of an
Employment Agreement between the parties bearing the same date as this
Agreement (the "Employment Agreement"), and this Agreement shall become
effective when any one of the contingencies set forth in Section 19 occurs
(the "Commencement Date" herein). "Term of Consulting Service" as used
herein shall mean the period commencing on the Commencement Date and
continuing thereafter through December 31 of the year in which Executive's
69th birthday occurs, unless the Company and Executive agree in writing to
extend the Term of Consulting Service, in which case the Term of Consulting
Service shall have the meaning as determined at that time; provided,
however, that Executive's consulting services may be earlier terminated as
hereinafter expressly set forth, in which event the Term of Consulting
Service shall mean the period from the Commencement Date through the date
of such earlier termination. Except as expressly provided in this
Agreement, terms defined in that Employment Agreement are used herein with
the same meanings.
2. Non-Competition. During any period (a) in which Executive is
being paid currently the compensation called for by Section 3 below, (b) in
which Executive is being paid currently for disability benefits as provided
under Section 11 below, or (c) in which Executive is being paid currently
for retirement benefits as provided under Section 9 or 10 below, Executive
shall not, without the prior written consent of the Board of Directors of
the Company, engage, as an employee, partner, consultant, venturer,
entrepreneur, or otherwise, in the development or sale of any product or
service which is competitive with any product or service sold or under
active development by the Company during the Term of Consulting Service.
3. Compensation for Non-Competition. In consideration for
Executive's non-competition as provided in Section 2 above, the Company
shall pay and provide to Executive the following compensation and benefits
through December 31 of the year in which Executive attains the age of 69:
(a) An annual non-competition fee equal to or greater than
$154,500, that fee to be increased each year if and to the extent the CPI
(defined below) has increased during the preceding year (and any fees
earned as a director of the Company shall be credited to that fee), which
fee shall be paid in full on January 2 of each year;
(b) The Executive will not participate in any of the Company's
executive incentive compensation plans except for any such plan or plans
which expressly refer to this Agreement;
(c) Grants of options under any Company stock option plan that
permits such options, in such amounts as are determined by the Board of
Directors or the Committee of the Board administering the plan;
(d) Participation in Company pension, deferred compensation,
insurance, health and welfare and other benefit plans in effect on the date
of this Agreement; and
(e) Continuation of all plans in which the Executive participates,
including existing fringe benefits and executive perquisites to which
Executive is entitled as of the date immediately prior to the Commencement
Date under this Agreement.
Beginning on the January 1 after the year in which Executive attains
the age of 69, the retirement benefits set forth in Sections 9 and 10 below
shall be the full consideration to be paid to Executive for his
non-competition.
4. Consulting Services. If this Agreement becomes effective upon
the occurrence of any contingency set forth in Section 19 other than
subsection 19(b) or (c), beginning upon the date of that occurrence
Executive shall hold himself available to the Company for providing
consulting services to it as an independent contractor at mutually
agreeable times and places; and the Company shall have the right to call
upon Executive, so long as Executive is able, for up to 8 days of
consulting services per year to provide information concerning matters that
occurred, were developed, or were determined while Executive was a
full-time or part-time employee of the Company. Unless otherwise agreed,
those consulting services shall be rendered at a place and time mutually
agreed (but within 25 miles of Executive's residence at the time) and shall
be paid at the rate of $1,500 per day (or up to 100 hours of consulting
services per year at an hourly rate to be agreed upon). Any other
consulting services shall be provided if, as, and when the parties may
agree.
Notwithstanding any of the other provisions of this Agreement, the
Term of Consulting Services will automatically terminate upon Executive's
death and thereupon all payments and non-vested benefits payable hereunder
and under Section 3 above shall cease, except for any death benefits and
any survivor benefits for his spouse which are provided under the Company's
employee plans and except for the retirement benefits set forth in Section
9 for any surviving spouse. Those retirement benefits shall be paid
pursuant to Section 9 commencing after Executive's 69th birthday would have
occurred, except that the surviving spouse may elect, by written notice
given to the Company's President or Secretary, to receive early retirement
benefits as provided in Section 10 below, in which case the provisions of
Section 9 below shall apply, except that the initial retirement wage
benefit shall be calculated as provided in Section 10.
The Company may terminate Executive's consulting services due to
Executive's permanent disability, as determined by the Board of Directors
in good faith based on the certification of an independent M.D., and
thereupon all payments and non-vested benefits under this Section 4 and
under Section 3 shall cease except that the disability and retirement
benefits shall be paid in accordance with the provisions of Sections 9, 10,
and 11 below.
5. Executive's Acceptance. Executive agrees to provide the
consulting services described in this Agreement. Executive further agrees
that he will devote his reasonable efforts during reasonable business hours
to performance of the consulting services set forth herein during the Term
of Consulting Service.
6. [Intentionally left blank]
7. Termination for Cause. The Company may terminate Executive's
consulting services immediately and without prior notice to Executive for
"Cause" as defined below. The existence of Cause shall be determined by
the Company's Board of Directors (other than Executive) acting in good
faith. "Cause" is defined, and shall be limited to, a good faith
determination by the Board of Directors that any of the following has
occurred:
(a) Executive has knowingly misappropriated for his benefit a
material amount of funds or property of the Company;
(b) Executive has obtained a material personal profit from any
illegal Company transaction with a third party;
(c) Executive has obtained a material personal profit from the use
of the Company's trade secrets other than on its behalf; or
(d) The Company has suffered material financial harm from knowingly
illegal action by Executive other than on the Company's behalf or for its
benefit.
If Executive's consulting services are terminated by the Company for
Cause, he shall continue to be paid compensation and benefits for his
non-competition in accordance with the provisions of Section 3 above and
retirement benefits in accordance with Section 9 and, if elected, Section
10 below, provided that his cash compensation (including retirement benefit
payments to be provided under this Agreement) shall be reduced by the
amount of any monetary damage suffered by the Company due to the Cause, as
determined by a court of competent jurisdiction, prorated over the
actuarially determined term of all such payments beginning on such
determination.
8. Resignation. Executive may voluntarily resign from his
consulting services with the Company by giving written notice thereof to
the Company's President or Secretary, but no resignation shall affect
Executive's obligation to provide the minimum consulting services provided
for in the second sentence of Section 4 above.
9. Retirement. The Company hereby agrees that, if not ended
sooner, the Term of Service as used in the Employment Agreement shall end
at the close of business on December 31 of the year in which Executive
attains the age of 69, and beginning on the opening of business on January
1 of the next year (and regardless whether the Term of Service ended prior
to that December 31), the Company will pay Executive retirement benefits
for his lifetime and for his spouse's lifetime, if his spouse survives him,
as follows:
(a) a retirement wage benefit initially equal to 30% of the base
salary rate being paid to Executive at the end of his full time employment
with the Company, increased for each year after the end of his full time
employment by any increase in the CPI (as defined below), except that the
retirement wage benefit shall be equal to 60% of that base salary rate at
the end of Executive's full time employment with the Company, plus CPI
increases, effective for any retirement year after a Change in Control and
after either Executive is no longer a full time employee of the Company or
Executive or the Company has given the notice provided for in Section
20(b)(ii) below, and except that the retirement wage benefit for his spouse
shall be 75% of the amount thus calculated for each year after the year of
Executive's death;
(b) continuation of Executive's participation (for himself and his
spouse) in the health program in effect on the date of this Agreement
(including for dental and eye care coverage, an annual physical
examination, and similar benefits); and
(c) continuation of all other benefits provided at time of
retirement, such continuation limited in individual benefit cost to 60% of
the maximum annual cost of such benefit in any year prior to retirement,
plus CPI increases,
For these purposes:
(1) unless otherwise agreed or directed by law or a court,
"spouse" shall mean the person to whom Executive is married at the time any
benefit is to be paid, or, after Executive's death, the person to whom
Executive was married at the time of his death;
(2) "CPI" shall mean the Consumer Price Index, all Urban Wage
Earners as determined by the United States Department of Labor, Bureau of
Labor Statistics, or any successor governmental agency or, lacking any such
successor, any other authoritative source designated in good faith by the
Board of Directors; and the wage benefit shall be increased as of January 1
each year by multiplying the wage benefit paid during the previous year by
any fraction greater than one calculated by dividing the CPI most recently
computed and available at the end of that previous year by the CPI most
recently computed and available at the end of the year previous to that;
the CPI shall not be used to decrease the wage benefit.
The parties agree: (x) that the foregoing retirement benefits are in
addition to any other retirement benefits that may be available to
Executive (such as the Company's 401(k) savings plan), (y) that payment of
these retirement benefits may be terminated if a court of law determines
that Executive has violated the provisions of Section 2 above, and (z) that
the Company will purchase and maintain life insurance sufficient to fund
the estimated benefits for Executive's spouse (estimated no later than
Executive's retirement date; any excess policy proceeds to be available, if
agreed, to purchase shares of the Company's Common Stock held in
Executive's estate) and the policy or policies of such insurance shall be
held in trust designated for this purpose.
(d) The retirement benefits provided under this Section 9 (and, if
applicable, Section 10) shall be paid as provided herein regardless whether
the Company has any claims against Executive for default under this
Agreement or for any other breach of duty or otherwise, and, except as
otherwise provided in Section 7 above, the Company shall pay those
retirement benefits as provided and must pursue remedies for any such
default or other breach of duty or other claim separately and independently.
10. Early Retirement Benefits. The parties agree that, in the
circumstances expressly provided in this Agreement, Executive and/or
Executive's spouse shall be paid early retirement benefits in accordance
with the following:
(a) The provisions of Section 9 shall apply to Executive's and the
spouse's retirement benefits as provided therein, except as expressly
modified by this Section 10, and shall be paid beginning at the time
payment of the early retirement benefits actually commences as provided in
this Agreement;
(b) The initial retirement wage benefit shall not be the amount set
forth in Section 9(a) above, but shall be calculated as follows: multiply
the initial retirement wage benefit (calculated in accordance with Section
9(a) above) by the actuarially determined number of years it would be paid
during Executive's then actuarially determined remaining lifespan as if
Executive's 69th birthday had just occurred; then divide that amount by the
number of years then actuarially determined to be Executive's actual
expected remaining lifespan based on his actual age at that time. The
amount thus calculated shall be the initial annual retirement wage benefit
for purposes of Section 9(a) above.
11. Disability. If Executive is determined to be permanently
disabled in accordance with the provisions of Section 4 above or the
provisions of Section 1 of the Employment Agreement, Executive shall be
paid disability benefits from that date through December 31 of the year in
which Executive attains the age of 69, which disability benefits shall be
equal to the non-competition compensation and benefits and the minimum
consulting fees that would have been paid to Executive pursuant to Sections
3 and 4 above if he had not become disabled, provided that, to the extent
the disability wage benefits are not taxable income to Executive under the
U.S. Internal Revenue Code of 1986, as amended, the disability benefit
amount shall equal 60% of the compensation and fees that would have been
paid pursuant to Sections 3 and 4 above.
12. Stock Transfers by Executive and Executive's Estate and Heirs.
So long as this Agreement is in effect, Executive shall not sell any shares
of Company Common Stock except (a) in transactions approved in advance by
the Company's Board of Directors or (b) pursuant to all the conditions of
Rule 144 promulgated by the Securities and Exchange Commission under the
Securities Act of 1933, as amended (or any rule thus promulgated which is a
successor to Rule 144); provided, however, that no such sales shall be made
in any block trade or when there is any tender offer pending with respect
to any securities issued by the Company or there is any program announced
by any person other than the Company to acquire shares of the Company's
Common Stock. Executive agrees that restrictive legends referring to the
provisions of this Section 12 shall be placed upon all certificates
representing shares to which this Section 12 applies. The provisions of
this Section 12 shall terminate upon any Change in Control or Executive's
death, whichever may first occur and shall not apply thereafter.
13. Expenses and Interest. If the Company is found by a court of
competent jurisdiction to have breached this Agreement, the Company shall
pay the costs and expenses (including reasonable attorneys fees and related
expenses) incurred by Executive in any litigation seeking damages in
respect of such breach or to enforce the performance of this Agreement by
Company, together with interest on each installment of wages or benefits
paid late by the Company calculated to the date of actual payment at an
annual rate equal to 3% over the highest rate then paid by the Company
under its short term borrowing arrangements with an independent
institutional lender (and if there is no such lender, then 4% above the
prevailing prime rate as reported in the Wall Street Journal).
14. Notices. Any notice required or permitted to be given
hereunder shall be in writing and may be delivered personally or given by
prepaid, certified, return receipt requested, first class mail addressed:
(a) if to the Company, to at least two members of the Board of
Directors, c/o the Company's Secretary at the address of the Company's
principal office;
(b) if to Executive, at his home mailing address on file with the
Company; and
(c) to such other address as the party to which such notice is to
be given shall have notified (in accordance with the provisions of this
Section 14) as its substitute address for the purpose of this Agreement.
Any notice given as aforesaid shall be deemed conclusively to have
been received on the fifth business day after such mailing.
15. Amendment. It is agreed that no change or modification of this
Agreement shall be made except in a writing signed by both parties.
16. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of
the remaining provisions shall not be affected thereby.
17. Law Governing. The validity, interpretation, and effect of
this Agreement shall be governed by the laws of the State of New York.
18. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the consulting services of
Executive by the Company during the Term of Consulting Service and with
respect to non-competition and disability and retirement benefits (but does
not affect pension and other benefit plans and arrangements in which
Executive participates). There are no restrictions, agreements, promises,
warranties, covenants, or undertakings other than those expressly set forth
herein with respect to the Term of Consulting Service. Upon the occurrence
of one of the contingencies set forth in Section 19 below, as of the
Commencement Date this Agreement supersedes all prior agreements,
arrangements, and understandings between the parties, whether oral or
written, with respect to employment or consulting services of Executive on
and after the Commencement Date. Thus, whenever this Agreement becomes
effective, the provisions of the Employment Agreement shall no longer be
effective except for any claims that may have accrued thereunder.
19. Contingencies. (a) This Agreement shall be effective
immediately upon the occurrence of any one of the following:
(a) Upon the end of the five year Term of Service as provided in
Section 1 of the Employment Agreement;
(b) Upon Executive's death as provided in Section 1 of the
Employment Agreement;
(c) Upon Executive's permanent disability as provided in Section 1
of the Employment Agreement;
(d) At the end of the period specified in Section 4 of the
Employment Agreement after termination of Executive's employment without
Cause;
(e) At the end of the period specified in Section 5 of the
Employment Agreement after termination of Executive's employment for Cause;
(f) Upon any voluntary resignation by Executive from full time
employment with the Company prior to a Change in Control as provided in
Section 6 of the Employment Agreement;
(g) Upon the effectiveness of any termination of Executive's
employment after a Change in Control as provided in Section 7 of the
Employment Agreement;
(h) Upon Executive's retirement as provided in Section 8 of the
Employment Agreement; or
(i) Upon any change of Executive's employment status to that of
independent consultant as provided in Section 9 of the Employment Agreement.
20. Change in Control.
(a) A "Change in Control" of the Company shall be deemed to have
occurred if:
(1) any "person," as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (other than the Company or any
corporation owned, directly or indirectly, by the shareholders
of the Company in substantially the same proportions as their
ownership of stock of the Company), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the
Company's then outstanding securities;
(2) there is elected 35% or more of the members of the
Board of Directors of the Company without the approval of the
nomination of such members by a majority of the Board serving
prior to such election;
(3) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than (i) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent more than 75% of the combined
voting power of the voting securities of the Company, or such
surviving entity, outstanding immediately after such merger or
consolidation; or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no "person" (as defined above) acquires
more than 25% of the combined voting power of the Company's
then-outstanding securities; or
(4) The shareholders of the Company approve an
agreement for the sale or disposition by the Company and all or
substantially all of the Company's assets.
(b) If:
(i) any Change in Control of the Company occurs while
this Agreement is effective, and
(ii) Executive gives notice to the Company or the Company
(acting upon a determination of its Board of Directors)
gives notice to Executive, in either case to the effect
that the six month period called for by this Section 20(b)
shall begin to run, and
(iii) Executive's consulting services are terminated
by Executive or by the Company (other than for Executive's
death or disability) within six months after the date the
notice provided for in (ii) above is received (in Executive's
case the termination being effected by Executive giving
notice within that six month period, effective within 30
days after the notice is given, that his consulting
services are terminated to the extent permitted under
Section 4 above), regardless the reason, if any, and
regardless which party gave the notice provided for in
(ii) above,
then the Company shall, upon receipt of said notice, immediately pay,
transfer, and provide to Executive the following amounts, benefits, and
assets:
(1) The Company shall pay to Executive the sum of
Executive's full non-competition compensation and minimum
consulting fees through the effective date of termination of
his consulting services at the rate in effect at the time of
termination or at the time the Change in Control occurs,
whichever is higher, and an amount equal to the amount of any
bonus which has been earned by him but not yet paid to him.
These two amounts shall be paid to Executive in a lump sum
within five days following the effective date of termination,
or in the case of a bonus which is not readily calculable at
that time, within five days after the bonus can be calculated.
(2) The Company shall pay to Executive an amount equal
to three times the highest total cash compensation (including
any base salary, non-competition compensation, bonuses, and
consulting fees) paid Executive in any of the Company's last
three fiscal years completed prior to such termination. This
amount shall be paid to Executive as provided in the last
sentence of subsection (1) above.
(3) The Company shall pay to Executive an amount equal
to the total amounts that would be expended for the benefits to
be provided Executive under Section 3 above on the assumption
that Executive will continue to be compensated for
non-competition for three years after the termination. This
amount shall be paid to Executive as provided in the last
sentence of subsection (1) above either in cash or in the form
of an annuity contract issued by an independent insurance
company licensed to do business in New York that will provide
payment of all such total amounts.
(4) All options and other rights that Executive may
hold to purchase or otherwise acquire Common Stock of the
Company shall immediately become exercisable in full for the
total number of shares that are or might become purchasable
thereunder, in each case without further condition or
limitation except the giving of notice of exercise and the
payment of the purchase price thereunder (but without amendment
of the plan under which they were issued). At his discretion,
Executive may elect to surrender to the Company his rights in
any such options and rights held by him and, upon that
surrender, the Company shall pay him an amount in cash equal to
the aggregate spread between the exercise prices of all those
options and rights and the value of the Common Stock
purchasable thereunder (or of any other security into which the
Common Stock has been exchanged or converted) as of the date of
the termination of consulting services, the value to be
determined by the reported last sale price of the Common Stock
or that other security (or the mean between the reported last
bid and asked prices) on that date on NASDAQ (or, if it is not
NASDAQ, on whatever may then be the principal exchange or
quotation system on which the Company's Common Stock or that
other security is traded at that time).
(5) The Company shall repay any policy loans previously
taken on the life insurance policies on Executive's life listed
on Exhibit A attached to the Employment Agreement (provided
that the directors of the Company were given written notice
promptly after the making of any such loans which were made
while Executive was the chief executive officer of the
Company), and then shall transfer to Executive any and all of
its right, title, and interest in and to those policies (and
upon that transfer, Executive shall be deemed to have released
the Company from any and all obligations it then owes to him to
maintain and pay premiums on those policies, all other
provisions of any agreements under which those policies were
agreed to be maintained, however, to remain in effect).
(6) In addition to the amounts specified in clauses (1)
through (5) of this paragraph (b), the Company shall pay to
Executive, at the same time as those amounts are paid, an
additional amount which, after taking into account all federal,
state, and local income and excise taxes that Executive is
required to pay with respect to receipt of the additional
amount under this clause (6), will render the net after-tax
payment to Executive under this clause (6) equal to the sum of:
(A) all federal, state, and local excise taxes
that Executive is required to pay with respect to the
payments made pursuant to clauses (1) through (5) above;
and
(B) all federal, state, and local income and
excise taxes that Executive is required to pay with
respect to the payment made pursuant to this clause (6).
The foregoing amounts of federal, state, and local income and
excise taxes shall be determined initially by a nationally
recognized firm of independent public accountants retained by
Executive at his expense or, at Executive's option, by
independent public accountants at the Company's expense, and
such determination and the basis therefor shall be furnished in
writing to Executive and the Company. Payment shall be made by
the Company in accordance with that initial determination
regardless whether there is a dispute over the accuracy
thereof. If either party disputes that initial determination
the matter shall promptly be referred to a nationally
recognized firm of independent public accountants selected by
the Executive (which firm shall not have been involved in the
initial determination), and Executive and the Company shall
promptly furnish to that firm such information as it reasonably
requests. The Company shall make such additional payment to
Executive or Executive shall refund to the Company, as the case
may be, in accordance with the latter firm's determination.
The fees and expenses of that firm shall be borne by the
Company.
(c) The Company may withhold from any payments due to
Executive under paragraph (b) such amounts as its independent public
accountants may determine are required to be withheld under applicable
federal, state, and local tax laws.
(d) If applicable, the provisions of this Section 20 shall
control over the provisions of Section 7. In the event that Executive's
consulting services are not terminated by the Company or the Executive
within the six month period specified in Section 20(b), the provisions of
Section 7 once again shall be applicable thereafter.
(e) In addition, if any Change in Control of the Company
occurs while this Agreement is effective, the Company shall purchase and
fully pay for an annuity policy sufficient to pay the retirement benefits
called for by Section 9 of this Agreement and shall transfer ownership
thereof to a "rabbi" trust for the benefit of Executive (but subject to the
claims of Company creditors to the extent required under applicable tax
laws so that the transfer to the trust will not itself be an event upon
which Executive recognizes income for federal or state income tax
purposes). In lieu of purchasing the annuity policy, the Company may
deposit cash into such a trust sufficient to provide, based on assumptions
believed reasonable in the written opinion of a nationally recognized
employee benefits organization, for assuring payment of those retirement
benefits to Executive and his spouse.
(f) Payment of the amounts called for by this Section 20 shall not
affect the Company's obligation to pay non-competition compensation and
benefits under Section 3 above or retirement benefits under Section 9 and,
if elected by Executive, Section 10 above.
21. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the heirs, legatees, administrators,
successors, and assigns of the respective parties.
IN WITNESS WHEREOF, Executive for himself, and the undersigned
director of the Company, acting on behalf of the Company by authority of
its Board of Directors, have executed this Agreement as of the day and year
first above written.
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Executive
DETECTION SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Chairman of the
Compensation Committee of the
Board of Directors
