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EXECUTION COUNTERPART
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of this 1st day of April, 1992 by
and between BE Avionics, Inc., a Delaware corporation (the "Company" or
"Employer"), and G. Bernard Jewell (the "Executive").
RECITALS
1. The Employer desires to employ the Executive as Group Vice President
- - Marketing and Product Development.
2. The Employer desires to retain the Executive and to make secure for
itself the experience, abilities and services of the Executive and to prevent
the loss of such experience, services and abilities.
3. The Executive has submitted to a physical examination by a physician
approved by the Company, and the Company has received the results of such
examination.
4. In consideration of the employment to be provided hereby and the
amounts to be paid as provided herein, the Executive desires to be employed by
the Employer and to agree with the Employer as further provided herein.
NOW THEREFORE, the parties hereto hereby agree as follows:
1. EMPLOYMENT. The Employer shall employ the Executive, and the Executive shall
perform services for and continue in the employment of the Employer, for a
period of three (3) years commencing on the date hereof (the "Employment
Period"), which Employment Period shall be extended after the third anniversary
of the date hereof from year to year thereafter, provided that this Agreement
shall expire upon twelve (12) months notice from either the Company or the
Executive, which notice may first be given on the second anniversary of the date
hereof and subsequently on each anniversary thereafter (such date of expiration
referred to hereinafter as the "Expiration Date"), unless such employment shall
have been sooner terminated as hereinafter set forth. In consideration of such
employment and in consideration of any subsequent retention as a consultant as
provided in Section 4(e) hereof, the Executive has concurrently executed a
Proprietary Rights Agreement, a copy of which is attached as Exhibit A hereto.
2. POSITION AND DUTIES. The Executive shall serve in the capacity of Group Vice
President Marketing and Product Development or in such other executive position
as the Chief Executive Officer of the Company or the Board of Directors of the
Company may designate from time to time, shall be accountable to, and shall have
such other powers, duties and responsibilities,
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consistent with his capacity, as may from time to time be prescribed by the
Chief Executive Officer or the Board of Directors. The Executive shall perform
and discharge, faithfully, diligently and to the best of his ability, such
duties and responsibilities. The Executive shall devote substantially all of his
working time and efforts to the business and affairs of the Company.
3. COMPENSATION.
(a) SALARY. During each year of the Employment Period, the Executive
shall receive an annual salary (the "Salary") of $100,000. Such rate shall be
subject to adjustment from time to time by the Board of Directors; PROVIDED,
HOWEVER, that it shall at no time be adjusted below $100,000. The Salary shall
be payable biweekly or in accordance with the Company's current payroll
practices. Except as otherwise provided in this Agreement, the Salary shall be
pro-rated for any period of service less than a full year.
(b) INCENTIVE BONUS. During each year of the Employment Period, the
Executive shall receive an incentive bonus (the "Bonus") for such year as
determined in advance by the Board of Directors of the Company at the end of the
year, which bonus shall not exceed 100% of the Salary. The Bonus shall be
payable as follows: (i) the Company shall pay the Executive fifty percent (50%)
of the Bonus in cash at the end of the fiscal year in which such Bonus was
earned and (ii) the Company shall pay the Executive the remaining unpaid Bonus
in five equal annual installments commencing on the first anniversary of the
Expiration Date.
(c) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable business expenses
incurred by him on behalf of the Employer.
(d) FRINGE BENEFITS. During the Employment Period, the Executive shall
be entitled to participate in or receive benefits under any life or disability
insurance, health, pension, retirement and accident plans or arrangements made
generally available by the Company to its executives and key management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements with such modifications as
the Company deems reasonably necessary in light of the results of the physical
examination referred to above. In accordance with the Company policy, the
Executive shall also be entitled to paid vacation in any fiscal year during the
Employment Period as well as all paid holidays given by the Company to its
employees.
(e) AUTOMOBILE. Without limiting the generality of the foregoing,
during the Employment Period, the Executive shall be furnished with an
automobile either owned or leased by the Company or an automobile allowance, at
the discretion of the Company.
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(f) STOCK OPTION GRANTS. During the Employment Period, the Executive
shall be entitled to receive grants of options to purchase up to 35,000 shares
of the Company's Common Stock.
(g) MOVING EXPENSES, ETC. In connection with the Executive's relocation
from Pfafftown, North Carolina, the Executive will transfer to the Company all
right, title and interest in and to his house located in such town, and the
Company will (i) retain a qualified appraiser to value such house; (ii) retain a
qualified broker to sell such house; (iii) advance to the Executive the greater
of (i) the appraised value of such house MINUS any indebtedness secured thereby
and (ii) an amount equal to $92,000 (being the Executive's equity in such
house), PROVIDED THAT, if the net cash proceeds (after deducting any
indebtedness secured by such house, together with any fees or expenses but
without deducting brokerage fees) from the sale of such house are less than such
amount advanced, the Executive shall promptly thereafter remit to the Company
the amount of such difference; and (iv) reimburse the Executive for all
reasonable moving expenses incurred as a result of his relocation from North
Carolina, including expenses relating to (A) moving personal property, and (B)
food and lodging for the Executive and his wife prior to the Executive's
purchase of a replacement house.
4. TERMINATION AND COMPENSATION THEREON.
(a) TERMINATION DATE. The term (the "Termination Date") shall mean the
earlier of (i) the Expiration Date or (ii) if the Executive's employment is
terminated (A) by his death, the date of his death, or (B) for any other reason,
the date on which such termination is to be effective pursuant to the notice of
termination given by the party terminating the employment relationship.
(b) DEATH. The Executive's employment hereunder shall terminate upon
his death. In such event, the Company shall pay to such person as the Executive
shall have designated in a notice filed with the Company, or, if no such person
shall have been designated, to his estate, an amount equal to the Salary that
would have been due to the Executive had this Agreement been in effect from the
date of his death until the Expiration Date.
(c) INCAPACITY. If in the reasonable judgment of the Board of Directors
of the Company, as a result of the Executive's incapacity due to physical or
mental illness or otherwise, the Executive shall for at least six consecutive
months during the term of this Agreement have been unable to perform his duties
under this Agreement on a full-time basis, the Company may terminate the
Executive's employment hereunder by notice to the Executive. In such event, the
Employer shall continue to pay the Executive his Salary (at the rate in effect
as of the Termination Date) and (to the extent legally practicable) extend to
him the applicable fringe benefits referred to in Section 3(d) hereof until the
Expiration Date. The Company's obligation to pay the Executive his Salary and
extend to him such benefits shall terminate if the Executive subsequently takes
other employment to the extent of the Executive's salary and benefits from such
other employment. Any dispute between the Board of Directors of the
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Company and the Executive with respect to the Executive's incapacity shall be
settled by reference to a competent medical authority mutually agreed to by the
Board of Directors and the Executive, whose decision shall be binding on all
parties.
(d) TERMINATION BY THE COMPANY. The Company may terminate the
Executive's employment hereunder for "cause". For purposes of this Agreement,
"cause" shall mean (A) the Executive's material failure, refusal or neglect to
perform and discharge his duties and responsibilities hereunder (including
duties prescribed by the Board of Directors pursuant to Section 2), other
material breach of the terms hereof, or breach of his fiduciary duties as an
officer or member of the Board of Directors of the Company or any subsidiary or
affiliate thereof, as applicable, or (B) a felony conviction or a conviction for
any crime involving the Executive's personal dishonesty or moral turpitude. If
the Executive's employment is terminated pursuant to this Section 4(d), the
Employer shall have no further obligations to the Executive hereunder after the
Termination Date, except for unpaid Salary and benefits accrued through the
Termination Date.
(e) CONSULTING PERIOD UPON TERMINATION. If the Company (i) terminates
the Executive's employment hereunder prior to the Expiration Date for any reason
whatsoever or (ii) fails to extend the Executive's employment hereunder for a
period of at least three years beyond the Expiration Date at his then current
Salary and otherwise on the terms and conditions set forth herein, then the
Company shall have the option, at its sole discretion, of retaining the
Executive as a consultant to perform such services as the Company may reasonably
request, in consideration for which services the Company shall continue to pay
the Executive fifty percent (50%) of his Salary and (to the extent legally
practicable) extend to him the applicable fringe benefits referred to in Section
3(d), as in effect on the Termination Date (in the case of (i) above) or the
Expiration Date (in the case of (ii) above) for the period commencing on the
Termination Date or Expiration Date and ending on the date three years after the
Expiration Date or on such earlier date as the Company may otherwise specify by
at least two weeks' prior written notice (the "Consulting Period").
5. AMENDMENTS. No amendment to this Agreement or any schedule hereto shall be
effective unless it shall be in writing and signed by each party hereto.
6. NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed given when delivered personally or three days after being
mailed by registered or certified mail (return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
(i) if to Employer, to it at:
c/o The K.A.D. Companies, Inc.
36 Washington Street, Suite 190
Wellesley, MA 02181
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Attention: Amin J. Khoury
with copies to
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Attention: C. Dean Dusseault
(ii) if to the Executive, to him at:
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7. ENTIRE AGREEMENT. This Agreement and the Proprietary Rights Agreement of even
date herewith constitute the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersede all prior and
contemporaneous agreements, understandings, negotiations and discussions,
whether oral or written, of the parties.
8. MISCELLANEOUS. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof. This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument and shall be governed and construed in accordance with
the laws (other than the conflict of laws rules) of the State of Florida and
shall bind and inure to the benefit of the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the
date first written above.
BE AVIONICS, INC.
By:______________________
Amin J. Khoury
Chairman of the Board
G. BERNARD JEWELL
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Exhibit A
PROPRIETARY RIGHTS AND CONSULTING AGREEMENT
This Agreement is intended to set forth in writing my responsibility to BE
Avionics, Inc. (the "Company") during my employment with the Company, during any
subsequent consulting period and thereafter. I recognize that the Company is
engaged in a continuous program of research, development, and production
respecting its business, present and future. As part of my employment with the
Company and any subsequent consultancy, I have certain obligations relating to
confidential information of the Company and inventions which I develop during my
employment or consultancy.
In return for my employment by the Company, I acknowledge and agree that:
1. AGREEMENT; EFFECTIVE DATE. I have today executed an Employment Agreement of
even date herewith (the "Employment Agreement") between the Company and myself.
In return for my employment pursuant thereto and any subsequent consulting
pursuant to Section 4(e) thereof, I agree to abide by the terms of this
Proprietary Rights Agreement during my employment with the Company and any
subsequent Consulting Period (as defined in Section 4(e) of the Employment
Agreement). This Proprietary Rights Agreement shall be effective on April ___,
1992, the first day of my employment with the Company, and shall continue in
effect throughout my employment and the Consulting Period, if any (the
"Agreement Period").
2. CONFIDENTIALITY. I will maintain in confidence and will not disclose or use,
either during or after the Agreement Period, any proprietary or confidential
information or know-how belonging to the Company ("Proprietary Information"),
whether or not in written form, except to the extent required to perform duties
on behalf of the Company. Proprietary Information refers to any information, not
generally known in the relevant trade or industry, which was obtained from the
Company, or which was learned, discovered, developed, conceived, originated or
prepared by me in the scope of my employment or consultancy. Such Proprietary
Information includes, but is not limited to, the Company's inventions or
products, research and development, production processes, manufacturing and
engineering processes, machines and equipment, finances, customers, marketing,
and production and future business plans, information belonging to customers or
suppliers of the Company disclosed incidental to my employment or consultancy
and any other information which is identified as confidential by the Company.
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3. INVENTIONS.
3.1. DEFINITION OF INVENTIONS. As used in this Agreement, the term
"Invention" means any new or useful art, discovery, contribution, finding or
improvement, whether or not patentable, and all related know-how. Inventions
include, but are not limited to, all designs, discoveries, formulas, processes,
manufacturing techniques, semiconductor designs, computer software, inventions,
improvements and ideas.
3.2. DISCLOSURE AND ASSIGNMENT OF INVENTIONS.
(a) I will promptly disclose and describe to the Company all Inventions
which I may solely or jointly conceive, develop, or reduce to practice during
the Agreement Period (i) which relate, at the time of conception, development,
or reduction to practice of the Invention, to the Company's business or actual
or demonstrably anticipated research or development, (ii) which were developed,
in whole or in part, on the Company's time or with the use of any of the
Company's equipment, supplies, facilities or trade secret information, or (iii)
which resulted from any work I performed for the Company (the "Company
Inventions"). I assign all my right, title, and interest worldwide in the
Company Inventions and in all intellectual property rights based upon the
Company Inventions. However, I do not assign or agree to assign any Inventions
relating in any way to the Company business or demonstrably anticipated research
and development which were made by me prior to my employment with the Company,
which Inventions, if any, are identified on Exhibit "A" to this Agreement.
Exhibit "A" contains no confidential information. I have no rights in any
Inventions other than the inventions specified in Exhibit "A". If no such list
is attached, I have no such Inventions or I grant an irrevocable, nonexclusive,
royalty-free, worldwide license to the Company to make, use and sell Inventions
developed by me prior to my employment with the Company.
(b) I recognize that Inventions relating to my activities while working
for the Company and conceived or made by me, alone or with others, within one
(1) year after termination of the Agreement Period may have been conceived in
significant part while I was retained by the Company. Accordingly, I agree that
such Inventions shall be presumed to have been conceived during my employment or
consultancy with the Company and are to be assigned to the Company as a Company
Invention unless and until I have established the contrary. I agree to disclose
promptly in writing to the Company all Inventions made or conceived by me for
one (1) year after the Agreement Period, whether or not I believe such
Inventions are subject to this Agreement, to permit a determination by the
Company as to whether or not the Inventions should be the property of the
Company. Any such information will be received in confidence by the Company.
4. DOCUMENTS AND MATERIAL. Upon termination of my employment with the Company
(regardless of whether or not the Company retains me as a consultant) or at any
other time upon the Company's request, I will promptly deliver to the Company,
without retaining any copies, all documents and other materials furnished to me
by the Company, prepared by me for
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the Company or otherwise relating to the Company's business, including without
limitation all written and tangible material in my possession incorporating any
Proprietary Information.
5. COMPETITIVE EMPLOYMENT. During the Agreement Period, I will not engage in any
employment, consulting, or other activity in any business competitive with the
Company without the Company's written consent.
6. NON-SOLICITATION. During the Agreement Period and for a period of two (2)
years thereafter, I will not solicit or encourage, or cause others to solicit or
encourage, any employees of the Company to terminate their employment with the
Company.
7. ACTS TO SECURE PROPRIETARY RIGHTS.
7.1. FURTHER ACTS. I agree to perform, during and after the Agreement
Period, all acts deemed necessary or desirable by the Company to permit and
assist it, at its expense, in perfecting and enforcing the full benefits,
enjoyment, rights and title throughout the world in the Company Inventions. Such
acts may include, but are not limited to, execution of documents and assistance
or cooperation in the registration and enforcement of applicable patents and
copyrights or other legal proceedings.
7.2. APPOINTMENT OF ATTORNEY-IN-FACT. In the event that the Company is
unable for any reason whatsoever to secure my signature to any lawful and
necessary document required to apply for or execute any patent, copyright or
other applications with respect to any Company Inventions (including
improvements, renewals, extensions, continuations, divisions or continuations in
part thereof), I hereby irrevocably appoint the Company and its duly authorized
officers and agents as my agents and attorneys-in-fact to execute and file any
such application and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights or other rights thereon with the
same legal force and effect as if executed by me.
8. NO CONFLICTING OBLIGATIONS. My performance of this Agreement does not and
will not breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by me prior to my employment with the Company. I will
not disclose to the Company, or induce the Company to use, any confidential or
proprietary information or material belonging to any previous employer or other
person or entity. I am not a party to any other agreement which will interfere
with my full compliance with this Agreement or the Employment Agreement. I will
not enter into any agreement, whether written or oral, conflicting with the
provisions of this Agreement or the Employment Agreement.
9. SURVIVAL. Notwithstanding the termination of the Agreement Period, Sections
2, 3.2, 4, 6 and 7 hereof shall survive such termination. This Agreement does
not in any way restrict my right or the right of the Company to terminate my
employment at any time, for any reason or
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for no reason. I understand, however, that only the Company may terminate my
consultancy, in its sole discretion, by at least two (2) weeks written notice.
10. SPECIFIC PERFORMANCE. A breach of any of the promises or agreements
contained herein will result in irreparable and continuing damage to the Company
for which there will be no adequate remedy at law, and the Company shall be
entitled to injunctive relief and/or a decree for specific performance, and such
other relief as may be proper (including monetary damages if appropriate).
11. WAIVER. The waiver by the Company of a breach of any provision of this
Agreement by me will not operate or be construed as a waiver of any other or
subsequent breach by me.
12. SEVERABILITY. If any part of this Agreement is found invalid or
unenforceable, that part will be amended to achieve as nearly as possible the
same economic effect as the original provision, and the remainder of this
Agreement will remain in full force.
13. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws (other than the conflict of laws rules) of the State of
Florida.
14. ENTIRE AGREEMENT. This Agreement, the Exhibits to this Agreement and the
Employment Agreement of even date herewith constitute the entire agreement
between the parties relating to this subject matter and supersede all prior or
simultaneous representations, discussions, negotiations, and agreements, whether
written or oral. This Agreement may be amended or modified only with the written
consent of both me and the Company. No oral waiver, amendment or modification
will be effective under any circumstances whatsoever.
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15. ASSIGNMENT. This Agreement may be assigned by the Company. I may not assign
or delegate my duties under this Agreement without the Company's prior written
approval. This Agreement shall be binding upon my heirs, successors, and
permitted assignees.
EMPLOYEE:
Date: April 1, 1992 ___________________________
Signature
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Printed Name
BE AVIONICS, INC.
Date: April 1, 1992 By:_________________________
Title:____________________
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EXHIBIT "A"
PRIOR INVENTION
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