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EXHIBIT 10.32
EMPLOYMENT AGREEMENT
THIS AGREEMENT is by and between Simula, Inc., an Arizona corporation (the
"Company") and James C. Dodd (the "Executive"), dated effective as of March 2,
1999 (the "Effective Date").
BACKGROUND
The Board of Directors of the Company (the "Board"), has determined that
it is in the best interests of the Company and its shareholders to assure that
the Company will have the continued employment and dedication of the Executive.
The Board has further determined that it is desirable to provide the
Executive with compensation and benefits terms which adequately compensate the
Executive for the services he renders to the Company, and, to ensure that such
compensation and benefits are consistent with those of like executives of other
public companies.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
AGREEMENT
1. EMPLOYMENT PERIOD. The Company hereby agrees to continue the Executive
in its employ, and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the first anniversary of such
date (the "Employment Period"). If the relationship is satisfactory to the
Company, and unless earlier terminated by the Company for Cause (as defined in
Section 3.3 below) or by the Executive for Good Reason (as defined in Section
3.3 below), on the last day of the one year anniversary date, commencing one
year after the Effective Date, this Agreement shall be automatically renewed,
under the same terms and conditions, for a three year term, and unless
terminated for cause or good reason thereafter as provided above, on the last
day of each successive one year anniversary date, this Agreement shall be
automatically renewed for continuous successive three year terms.
2. TERMS OF EMPLOYMENT.
2.1 Position and Duties.
(a) During the Employment Period, the Executive shall be
employed in an executive capacity in the positions of Executive Vice
President, Chief Financial Officer, and Treasurer of the Company at
Company headquarters in Phoenix, Arizona;
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(b) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote full attention and time during normal
business hours to the business and affairs of the Company and to use
the Executive's best efforts to perform faithfully and efficiently
such responsibilities.
2.2 Compensation.
(a) Base Salary. The Executive shall receive an initial annual
base salary ("Initial Base Salary") of ONE HUNDRED SEVENTY THOUSAND
DOLLARS ($170,000). Thereafter, the Executive's salary and total
compensation shall be reviewed on a periodic basis by the
Compensation Committee of the Board to determine what, if any,
increases shall be made thereto. The base salary payable to the
Executive in any given year, including the Initial Base Salary, is
hereafter referred to as the "Annual Base Salary." Any increase in
Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base Salary
shall not be reduced after any increase and the term Annual Base
Salary as utilized in this Agreement shall refer to Annual Base
Salary as increased. The Annual Base Salary shall in all instances
be payable in twenty-six (26) equal bi-weekly installments.
(b) Stock Option Grant; Annual Bonus or Option Plans.
Executive will be granted stock options to purchase 150,000 shares
of the Company's Common Stock, at the price and according to the
vesting schedule set out in the Options Agreements attached hereto
as Exhibit A. Thereafter, in addition to Annual Base Salary, the
Executive shall be eligible to participate in any applicable Company
bonus plan or program or stock option plan or program in effect
immediately prior to the Effective Date, or put into effect by the
Board at any time thereafter.
(c) Incentive, Savings and Retirement Plans. During the
Employment Period, the Executive shall be entitled to participate in
all incentive, savings and retirement plans, practices, policies and
programs applicable generally to other executives of the Company,
but in no event shall such plans, practices, policies and programs
provide the Executive with incentive opportunities, savings
opportunities and retirement benefit opportunities, in each case,
less favorable, in the aggregate, than the most favorable of those
provided by the Company to other executives of the Company; provided
however, the dollar value awarded Executive in the reasonable
discretion of management need not be equal to that awarded to all
other executives.
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(d) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall
be eligible for participation in and shall receive all benefits
under welfare benefit plans, practices, policies and programs
provided by the Company (including, without limitation, medical,
prescription, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and
programs) to the extent applicable generally to other executives of
the Company, but in no event shall such plans, practices, policies
and programs provide the Executive with benefits which are less
favorable, in the aggregate, than the most favorable of such plans,
practices, policies and programs provided generally at any time
after the Effective Date to other executives of the Company.
(e) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in the conduct of Company
business.
(f) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the plans,
policies, programs and practices of the Company in all respects as
in effect for the Executive during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Executive,
as in effect generally at any time thereafter with respect to other
executives of the Company.
3. TERMINATION OF EMPLOYMENT.
3.1 Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If
the Company determines in good faith that any Disability of the Executive
has occurred during the Employment Period (pursuant to the definition of
Disability set forth below), it may give to the Executive written notice
in accordance with Section 10.2 of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's
employment with the Company shall terminate effective on the 30th day
after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of the
Executive's duties. For purposes of this Agreement, "Disability" shall
mean the absence of the Executive from the Executive's duties with the
Company on a full-time basis for 180 consecutive business days as a result
of incapacity due to mental or physical illness certified by a physician
selected by the Company or its insurers and acceptable to the Executive or
the Executive's legal representative.
3.2 Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement,
"Cause"
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shall mean: (i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board which specifically
identifies the manner in which the Board believes that the Executive has
not substantially performed the Executive's duties, or (ii) the willful
engaging by the Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Company. For purposes of this
provision, no act or failure to act, on the part of the Executive, shall
be considered "willful" unless it is done, or omitted to be done, by the
Executive in bad faith.
3.3 Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason at any time within 90 days after the Executive
first has actual knowledge of the occurrence of such Good Reason. For
purposes of this Agreement, "Good Reason" shall mean:
(a) the assignment to the Executive of any duties that are not
of an executive nature, or any other action by the Company which
results in a material diminution in the Executive's position,
authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(b) any failure by the Company to comply with any of the
provisions of Section 2.2 of this Agreement, other than an isolated,
insubstantial, and inadvertent failure not occurring in bad faith
and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(c) the Company's requiring the Executive, without the
Executive's consent and full agreement, to be based at any office or
position other than as provided in Section 2.1(a) hereof;
(d) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this
Agreement; or
(e) any failure by the Company to comply with and satisfy
Section 9.3 of this Agreement.
3.4 Notice of Termination. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section
10.2 of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which:
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(a) indicates the specific termination provision in this
Agreement relied upon;
(b) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated; and
(c) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination
date (which date shall be not more than thirty days after the giving
of such notice). The failure by the Executive or the Company to set
forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any
right of the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from asserting
such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
3.5 Date of Termination. "Date of Termination" means:
(a) if the Executive's employment is terminated by the Company
for Cause, or by the Executive for Good Reason, the date of receipt
of the Notice of Termination or any later date specified therein, as
the case may be;
(b) if the Executive's employment is terminated by the Company
other than for Cause or Disability, the date on which the Company
notifies the Executive of such termination; and
(c) if the Executive's employment is terminated by reason of
death or Disability, the date of death of the Executive or the
Disability Effective Date, as the case may be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
4.1 Good Reason; Other Than for Cause; Disability. If, during the
Employment Period, the Company shall terminate the Executive's employment
other than for Cause or Disability or the Executive shall terminate
employment for Good Reason, the Company shall pay to the Executive in a
lump sum in cash within thirty (30) days after the Date of Termination the
aggregate of the following amounts:
(a) The amount of Annual Base Salary compensation which would
have been payable to the Executive over the period then remaining
under this Agreement, as it may have been renewed as provided for in
Section 1 hereof;
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(b) Any declared and accrued, but as of then unpaid, bonus or
stock options grant (whether or not vested) to which the Execute
would have received but for such termination. Additionally, any
stock options owned or granted shall be deemed immediately vested,
not forfeitable, and shall be the property of Executive,
exerciseable according to their terms for the balance of the term of
years of the options;
(c) Any accrued vacation pay;
(d) Any amounts payable pursuant to the Company's Defined
Benefit Pension Plan, 401(k) plan, including such amounts which
would have accrued (whether or not vested) if the Executive's
employment had continued after the Date of Termination for the
period then remaining under this Agreement, as it may have been
renewed as provided for in Section 1 hereof;
(e) Any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under any
plan, program, policy or practice or contract or agreement of the
Company (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits");
(f) For the remaining term of this Agreement, as it may have
been renewed pursuant to Section 1 hereof, or such longer period as
may be provided by the terms of the appropriate plan, program,
practice or policy, the Company shall continue benefits to the
Executive and/or the Executive's family at least equal to those
which would have been provided to them in accordance with the plans,
programs, practices and policies described in Section 2.2(d) of this
Agreement if the Executive's employment had not been terminated or,
if more favorable to the Executive, as in effect generally at any
time thereafter with respect to other executives of the Company and
their families, provided, however, that if the Executive becomes
re-employed with another employer and is eligible to receive medical
or other welfare benefits under another employer-provided plan, the
medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during such
applicable period of eligibility, and for purposes of determining
eligibility (but not the time of commencement of benefits) of the
Executive for retiree benefits pursuant to such plans, practices,
programs and policies, the Executive shall be considered to have
remained employed for the remaining term of this Agreement, as it
may have been renewed pursuant to Section 1 hereof, and to have
retired on the last day of such period; and
(g) The Company shall, at its sole expense as incurred,
provide the Executive with out-placement services, the scope and
provider of which
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shall be selected by the Executive in the Executive's sole
discretion (but the total cost thereof shall not exceed $50,000).
4.2 Death. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of Death
Benefit Compensation under other contracts, if any, full vesting and
non-forfeiture of stock options granted to Executive, and the timely
payment or provision of Other Benefits. Such amounts shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section 4.2
shall include, without limitation, and the Executive's estate and/or
beneficiaries shall be entitled to receive, benefits at least equal to the
most favorable benefits provided by the Company to the estates and
beneficiaries of other executives of the Company under such plans,
programs, practices and policies relating to death benefits, if any, as in
effect with respect to other executives and their beneficiaries at any
time during the 120-day period immediately preceding the Effective Date
or, if more favorable to the Executive's estate and/or the Executive's
beneficiaries, as in effect on the date of the Executive's death with
respect to other executives of the Company and their beneficiaries.
4.3 Disability. If the Executive's employment is terminated by
reason of the Executive's Disability under Section 3.1 during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive, other than for the timely payment or
provision of (i) Base Salary and, (ii) accrued bonus through the
Termination Date, (iii) payment of pension, 401(k), and Other Benefits,
(iv) full vesting and non-forfeiture of stock options, and, (v) the
receipt of fully-paid Welfare Benefit Plans under Section 2.2(d) for the
balance of the term of this Agreement. In addition, Executive shall be
paid for the term of this Agreement at regular pay periods that amount
equal to the difference between his Annual Base Salary and the disability
insurance payment received by the disabled Executive under the Company's
disability insurance program. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 4.3 shall
include, and the Executive shall be entitled after the Disability
Effective Date to receive, disability and other benefits at least equal to
the most favorable of those generally provided by the Company to disabled
executives and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, as in effect
generally with respect to other executives and their families at any time
during the 120-day period immediately preceding the Effective Date or, if
more favorable to the Executive and/or the Executive's family, as in
effect at any time thereafter generally with respect to other executives
of the Company and their families.
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4.4 Cause; Other than for Good Reason. If the Executive's employment
shall be terminated for Cause during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other than
the obligation to pay to the Executive: (x) the Annual Base Salary through
the Date of Termination, (y) the amount of any compensation previously
deferred by the Executive, and (z) Other Benefits, in each case to the
extent therefore unpaid. If the Executive voluntarily terminates
employment during the Employment Period, excluding a termination for Good
Reason, this Agreement shall terminate without further obligations to the
Executive, other than for items (x), (y) and (z) of this paragraph,
accrued but unpaid vacation leave, and the timely payment or provision of
Other Benefits. In such case, all Accrued Obligations shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination.
5. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which the Executive may
qualify, nor, affect such rights as the Executive may have under any other
contract or agreement with the Company. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement. This Agreement shall not supersede any of the terms
or conditions of such other agreements. To the extent of any inconsistency in
these agreements, the agreements shall be interpreted and applied in the way to
confer upon the employee the greatest benefits. The agreements shall be read and
applied consistent with each other, but in the event of a conflict, the terms
most favorable to the employee will be applied from the various provisions of
the agreements in the aggregate.
6. FULL SETTLEMENT; LEGAL FEES. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and except as
specifically provided in Section 4.1(f), such amounts shall not be reduced
whether or not the Executive obtains other employment. The Company agrees to pay
promptly as incurred, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability or entitlement under, any
provision of this Agreement or any guarantee of performance thereof (whether
such contest is between the Company and the Executive or between either of them
and any third party, and including as a result of any contest by the Executive
about the amount of any payment pursuant to this Agreement),
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plus in each case interest on any delayed payment at the applicable Federal rate
("Applicable Federal Rate") provided for in Section 7872(f)(2)(A) of the
Internal Revenue Code of 1986, as amended (the "Code").
7. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
7.1 Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the
Company to or for the benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments
required under this Section 7) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Code or any corresponding
provisions of state or local tax laws, or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including
any interest or penalties imposed with respect to such taxes), including,
without limitation, any income or employment taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
7.2 Subject to the provisions of Section 7.3, all determinations
required to be made under this Section 7, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be
made by Deloitte & Touche LLP or such other certified public accounting
firm as may be designated by the Executive (the "Accounting Firm"), which
shall provide detailed supporting calculations both to the Company and the
Executive within 15 business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is
requested by the Company.
7.3 The Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten business days after the
Executive is informed in writing of such claim.
7.4 If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 7.3, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of Section 7.3)
promptly pay to the Company the
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amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto).
8. CONFIDENTIAL INFORMATION; NONCOMPETITION.
8.1 Nondisclosure. The Executive shall hold in fiduciary capacity
for the benefit of the Company all secret, proprietary or confidential
information, knowledge or data relating to the Company and its businesses,
which shall have been obtained by the Executive during the Executive's
employment by the Company. During the period the Executive is employed
with the Company, and after termination of the Executive's employment with
the Company, the Executive shall not, without the prior written consent of
the Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone
other than the Company and those designated by it. The restrictions set
forth in this Section 8 will not apply to information which is generally
known to the public or in the trade, unless such knowledge results from an
unauthorized disclosure by the Executive or representatives of the
Executive in violation of this Agreement. This exception will not affect
the application of any other provisions of this Agreement to such
information in accordance with the terms of such provision. All documents
and tangible things embodying or containing confidential information are
the Company's exclusive property. The Executive will protect the
confidentiality of their content and will return all copies, facsimiles
and specimens of them and any other form of confidential information in
the Executive's possession, custody or control to the Company before
leaving the employment with the Company.
8.2 Competition. During the term of the Executive's employment with
the Company, and for a period of eighteen (18) months thereafter (equal to
one-half of the total months of the term of this Agreement), the Executive
will not, directly or indirectly, engage, participate or invest in or be
employed by any business anywhere in the world which:
(a) Develops or manufactures products which are competitive
with or similar to products developed or manufactured by the
Company;
(b) Distributes, markets or otherwise sells products
manufactured by others which are competitive with or similar to
products distributed, marketed or sold by the Company; or
(c) Provides services which are competitive with or similar to
services provided by the Company, including, in each case, any
products or services the Company has under development or which are
the subject of active planning at any time during the term of the
Executive's employment. The foregoing restriction shall apply
regardless of the capacity in which the
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Executive engages or engaged, participates or participated, or
invests or invested in or is employed by a given business, whether
as owner, partner, shareholder, consultant, agent, employee,
co-venturer or otherwise. In addition, during the term of the
Executive's employment with the Company, and for a period of
eighteen (18) months thereafter, the Executive will not, directly or
indirectly, without the prior written consent of the Company, hire
or solicit for hire with any business any person who is employed by
the Company at such time or was employed by the Company within the
preceding eighteen (18) months. The provisions of this Section 8
shall not prevent the Executive from acquiring or holding publicly
traded stock or other publicly traded securities of a business, so
long as the Executive's ownership does not exceed ten percent (10%)
of the outstanding securities of such company of the same class as
those held by the Executive or from engaging in any activity or
having an ownership interest in any business that is reviewed by the
Board of Directors. The Executive understands that the restrictions
set out in this Section 8 are intended to protect the Company's
interest in its secret, proprietary or confidential information and
established customer relationships and goodwill, and agrees that
such restrictions are reasonable and appropriate for this purpose.
8.3 Damages. The Executive agrees that it would be difficult to
measure any damages caused to the Company which might result from any
breach by the Executive of the promises set forth in this Agreement, and
that in any event money damages would be an inadequate remedy for any such
breach. Accordingly, the Executive agrees that in the case of breach, or
proposed breach, of any portion of this Agreement, the Company shall be
entitled, in addition to all other remedies that it may have, to an
injunction or other appropriate equitable relief to restrain any such
breach without showing or proving any actual damage to the Company.
However, in no event shall an asserted violation of the provisions of this
Section 8 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
9. SUCCESSORS.
9.1 This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assigned by the
Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
9.2 This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
9.3 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the
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business and/or assets of the Company to assume expressly 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. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation
of law, or otherwise.
10. MISCELLANEOUS.
10.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona, without reference to principles of
conflict of laws. The captions of this Agreement are set forth for
convenience only and shall have no separate force or effect. This
Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors
and legal representatives.
10.2 All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: James C. Dodd
2700 North Central Avenue
Suite 1000
Phoenix, Arizona 85004
If to the Company: Simula, Inc.
ATTN: Corporate Secretary
2700 North Central Avenue, Suite 1000
Phoenix, Arizona 85004
or to such other address as either party shall have furnished to the other
in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
10.3 The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
10.4 The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
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10.5 The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company
may have hereunder, including, without limitation, the right of the
Executive to terminate employment for Good Reason pursuant to Section 3.3
of this Agreement, shall not be deemed to be a waiver of such provision or
right or any other provision or right of this Agreement.
IN WITNESS WHEREOF, pursuant to the authorization from its Compensation
Committee and Board of Directors, the Company has caused this Agreement to be
executed in its name on its behalf, as of the day and year first above written.
SIMULA, INC.
By /s/ Donald W. Townsend
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Title President
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EXECUTIVE
/s/ James C. Dodd
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James C. Dodd
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