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EMPLOYMENT AGREEMENT
BETWEEN
XX. XXXXX XXXXXX AND HONEYWELL ACQUISITION CORP.
This Employment Agreement ("Agreement") is entered into between Xx. Xxxxx
Xxxxxx ("Executive"), and Honeywell Acquisition Corp. (the "Company"), a
corporation incorporated under the laws of Delaware. In this Agreement,
Executive and the Company are collectively referred to as "the parties". The
term "the Company" as used in this Agreement includes all subsidiaries,
affiliates, and businesses of Honeywell Acquisition Corp. and following the
Effective Time (as defined in the Merger Agreement (as defined below)) means
Honeywell-Measurex Corporation as the surviving entity of the Merger (as defined
below) and all of its subsidiaries, affiliates and businesses. The effective
date of this Agreement is the Effective Time.
I. BACKGROUND.
A. Acquisition of Measurex. Under the terms of the Agreement and Plan of
Merger, dated as of January 26, 1997 ("Merger Agreement"), Honeywell
Acquisition Corp. (a wholly owned subsidiary of Honeywell Inc.
("Honeywell")) has agreed to purchase all of the issued and outstanding
shares of capital stock of Measurex Corporation ("Measurex"). After the
acceptance for purchase of shares of common stock of Measurex pursuant to
the Offer, Honeywell Acquisition Corp. will be merged with and into
Measurex at the Effective Time (the "Merger"), with Measurex being the
surviving company thereafter to be named Honeywell-Measurex Corporation.
B. Executive's Position with Measurex. Executive is the Chairman and
Chief Executive Officer of Measurex.
C. Measurex's Business. Measurex is engaged in the design, manufacture
and servicing of computer-integrated measurement, control and information
systems and will be operated as a unit of Honeywell's Industrial Automation
and Control business.
II. SUPERSEDES AND REPLACES ALL PRIOR AGREEMENTS. Executive and the Company
agree that as of the Effective Time this Agreement will supersede and replace
all agreements, contracts, or promises of any kind between Executive and
Measurex, and that all such agreements, contracts and promises will be revoked
and of no further force or effect including, without limitation, that certain
Severance Agreement dated as of May 15, 1995.
III. EMPLOYMENT POSITION WITH THE COMPANY. The Company wishes to employ
Executive, and Executive wishes to be employed by the Company, in the position
of Senior Advisor. This Agreement sets out the mutual considerations and
undertakings between the Company and Executive which are entered into for the
purpose of employing Executive in this position, or another position as
assigned by the Company and as may be agreed to by Executive.
A. Duties and Authority.
1. Executive will have all of the duties and responsibilities, and
will be subject to all terms and conditions of employment, which are
customary and reasonable for his position.
2. Executive will be subject to, and will abide by the requirements
of, all Honeywell and Company policies which are communicated to
Executive and which are from time to time in effect for management or
executive employees of Honeywell and the Company, including without
limitation, Honeywell's Code of Ethics and Business Conduct.
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3. Executive will perform the duties and exercise the powers of his
position in accordance with the direction of the Board of Directors of
the Company and in accordance with the direction of the President of
Honeywell Industrial and Automation Control.
B. Term of Agreement. Subject to the terms of this Agreement, Executive's
employment with the Company pursuant to this Agreement will commence at the
Effective Time. Unless terminated sooner and subject to the terms of Paragraph
IV.D. hereof, this Agreement expires on December 31, 2000.
C. Compensation. Until December 31, 1997, so long as Executive remains an
employee of the Company and this Agreement remains in effect, the Company will
continue Executive's coverage under all Measurex employee benefit programs in
which he currently participates or, in its discretion, will provide
substantially comparable plans and benefits of the Company and will also provide
him with substantially the same perquisites including, without limitation, car
allowance, tax and financial consulting services and the special term life
insurance policy in the amount of $500,000. After January 1, 1998, so long as
Executive remains an employee of the Company and this Agreement remains in
effect, the Company will continue Executive's coverage under the Measurex
medical/dental plans (including coverage for his spouse) and the special term
life insurance policy in the face amount of $500,000 or, in its discretion, will
provide substantially comparable plans and benefits of the Company. Executive's
base salary for 1997 shall be four hundred and seventy-five thousand dollars
($475,000.00) on an annualized basis, and his base salary for each of 1998, 1999
and 2000 shall be three hundred thousand dollars ($300,000.00), in each case,
less all standard legal deductions and all other deductions, contributions, and
payments authorized by Executive payable on a bi-weekly basis.
1. Incentive Compensation. Executive will be entitled to an
additional three hundred and ninety-five thousand dollars
($395,000.00) of incentive compensation upon continuation of
Executive's employment with the Company through the end of the 1997
calendar year, with such incentive compensation to be paid within 30
days after the close of such calendar year. If this Agreement
terminates before the end of the 1997 calendar year, the incentive
compensation due Executive for that calendar year shall be paid on a
prorated basis.
2. Special Additional Compensation. As an additional incentive for
Executive to remain employed by the Company for the entire term of
this Agreement, and as additional consideration for Executive's
covenants and promises in this Agreement, the Company will provide the
following incentive to Executive:
a. An aggregate cash payment of $3,101,283 (subject to
adjustment to avoid any excess parachute payment under Internal
Revenue Code Section 280G, as calculated in accordance with
Section 5.11 of the Merger Agreement) payable on or about the
Effective Time.
3. Vacation/Sick Leave. Executive shall for the 1997 calendar year
continue to accrue vacation pay and sick leave pay at the same rates
in effect for Executive prior to the Merger, and all accrued but
unused vacation and sick leave pay available to Executive prior to the
Merger will continue to remain available to Executive after the
Merger.
D. Termination. On termination of employment, for whatever reason, and
whether the termination is voluntary or involuntary, Executive shall immediately
resign all offices held with or on behalf of the Company. Other than as is
specifically provided in this paragraph III.D., Execu- tive shall not be
entitled to receive any payment or compensation for loss of office, or by reason
of his separation from employment with the Company. If Executive fails to
immediately resign all offices as set forth above, the Company is hereby
irrevocably authorized to appoint an individual of the Company's choice to, in
Executive's name and on
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Executive's behalf, sign any documents or to do any thing necessary or requisite
to give effect to Executive's resignation from all such offices.
1. Disability.
a. If, as a result of the incapacity of Executive due to physical or
mental illness, he is unable to perform substantially and continuously
the duties assigned to him (such incapacity being referred to as a
"Disability") for a period of six (6) consecutive months during the
term of this Agreement, the Company may terminate his employment upon
thirty (30) days prior written notice to Executive.
b. During any period that Executive fails to perform his duties with
the Company as a result of a Disability (the "Disability Period"),
Executive shall be entitled to receive his base salary at the rate
then in effect minus any compensation payable to him under any
applicable disability insurance plan of the Company. In the event
Executive's employment shall thereafter be terminated pursuant to
paragraph III.D.1.a. or by reason of his death, Executive (or his
estate or beneficiary) shall receive his base salary at the rate then
in effect as set forth in paragraph III.C. through the date of his
termination or death, as the case may be, such base salary to be paid
not later than the date of termination, and shall be entitled to
receive any incentive compensation payable with respect to the year in
which the termination or death occurred on a prorated basis, such
incentive compensation, if any, to be paid on the date of the
Company's normal distribution of incentive compensation for the year
in question and shall, together with his eligible dependents, be
entitled to continued health coverage under the Company's medical
plans or substantially comparable plans through December 31, 2002.
Thereafter, the Company shall have no further obligation under this
Agreement to Executive, Executive's estate or beneficiary, or to any
other party.
2. Death.
a. Executive's employment shall terminate immediately upon his
death.
b. In the event of Executive's death during the term of this
Agreement, his estate or beneficiary shall be entitled to receive his
base salary at the rate then in effect as set forth in paragraph
III.C. of this Agreement through the date of his death, and shall be
entitled to receive the incentive compensation, if any, payable with
respect to the year in which death occurred on a prorated basis, such
incentive compensation, if any, to be paid on the date of the
Company's normal distribution of incentive compensation for the year
in question. Thereafter, the Company shall have no further obligation
under this Agreement to Executive, Executive's estate or beneficiary,
or to any other party.
3. Cause. The Company shall be entitled at any time during the term of
this Agreement to terminate Executive's employment and all of Executive's rights
under this Agreement for "Cause". For purposes of this Agreement, "Cause" for
termination by the Company of Executive's employment shall mean (i) the willful
and continued failure by Executive to substantially perform his duties with the
Company (other than any such failure caused by Executive's incapacity due to
physical or mental illness) after a written demand for substantial performance
is delivered to Executive by the President, Honeywell Industrial and Automation
Control, which demand identifies the manner in which the President believes that
Executive has not substantially performed his duties; (ii) the willful engaging
by Executive in conduct which is demonstrably and materially injurious to the
Company or its subsidiaries, monetarily or otherwise; (iii) a conviction, plea
of nolo conten- dere, guilty plea or confession by Executive to an act of fraud,
misappropriation, or embezzlement or to a felony. For purposes of clauses (i)
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and (ii) of this definition, no act, or failure to act, on Executive's part
shall be deemed "willful" unless Executive's act, or failure to act, was not in
good faith, and Executive did not have a reasonable belief that his act, or
failure to act, was in, or not opposed to, the best interest of the Company. The
Company may not terminate Executive's employment under this Agreement for any
reason other than for Cause or Disability.
If, prior to the time this Agreement expires, Executive's employment shall be
terminated by the Company for Cause, the Company shall pay Executive's (i) base
salary at the rate then in effect as set forth in paragraph III.C. of this
Agreement through the date of such termina- tion, such base salary to be paid
not later than the date of termination and (ii) his incentive compensation, if
any, with respect to the year in which such termination occurred on a prorated
basis, such incentive compensation, if any, to be paid on the date of the
Company's normal distribution of incentive compensation for the year in
question. Thereafter, the Company shall have no further obligation under this
Agreement to Executive, Executive's estate or beneficiary, or to any other
party.
4. Voluntary Resignation by Executive. Executive may terminate his
employment at any time during the term of this Agreement upon thirty (30)
days prior written notice to the Company. If Executive voluntarily
terminates his employment with the Company pursuant to this paragraph
III.D.4., the Company shall pay him (i) his base salary at the rate then in
effect as set forth in paragraph III.C. of this Agreement through the date
of such termination, such base salary to be paid not later than the date of
termination and (ii) his incentive compensation, if any, with respect to
the fiscal year of the Company during which such termination occurred on a
prorated basis, such incentive compensation to be paid on the date of the
Company's normal distribution of incentive compensation for the year in
question. Thereafter, the Company shall have no further obligation under
this Agreement to Executive, Executive's estate or beneficiary, or to any
other party.
E. Service. Throughout the period from the Effective Time through
December 31, 1997, Executive will devote his full time and attention to the
business and affairs of the Company and its subsidiaries and affiliates,
and will not, without the express written consent of the President,
Honeywell Industrial and Automation Control, become a director or employee
of any other company or organization, although he may become an
uncompensated member of the Board of Directors of a not-for-profit
religious, educational or charitable organization. For the period
commencing January 1, 1998 and continuing through the remaining term of
this Agreement, Executive will make himself available for advice and
consultation with the senior management of Measurex with respect to matters
within his area of expertise, including customer visits, as requested;
provided, however, Executive shall not be required to render more than
forty (40) hours of service per month and may pursue other business
endeavors subject to his covenants under paragraph IV.C. Executive will
use his reasonable efforts to promote the interests of the Company and its
subsidiaries and affiliates.
IV. COVENANTS.
A. Reasonableness. Executive confirms that he has not signed any other
agreement, and has not accepted any obligation, which would interfere or
conflict with his ability to comply with this Agreement. He agrees that he
will be employed by the Company in a position of trust, and that in the
course of his employment he will have access to information which is
important to the success of the business, and that he is or will become
familiar with the Company's strategies, plans, secrets, customers and
vendors. He agrees that the Company has expended considerable time and
expense in developing its business reputation and good will, and that the
Company has a legitimate interest in protecting its business information,
its ties with customers and vendors, and its good will and business
reputation.
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In addition, Executive acknowledges and agrees that in the course of his
employment with Measurex, he had access to, and created, information and
strategic plans which were integral to the success of Measurex's business;
Executive further acknowledges and agrees that, due to his unique history with
and knowledge of Measurex, he is in a position to significantly and irrevocably
damage the value of Measurex to Honeywell, should he in any manner compete with
the lines of business of the Company with which Executive was actively involved
after the Effective Time.
Executive acknowledges and agrees that the restrictions contained in this
Agreement are reasonable and will not prevent him from finding other employment
if his employment with the Company ends. He also acknowledges and agrees that
if he uses the Company's confidential information, or competes with the Company
in violation of the terms of this Agreement, that he will be causing the Company
irreparable harm.
B. Consideration. Executive agrees that the promises and agreements made by
the Company in this Agreement are full and complete consideration for all
promises and agreements made by him herein, including his agreement to all
covenants contained in this Agreement.
C. Covenants.
1. Nondisclosure of Trade Secrets and Confidential Information.
Executive realizes that during his employment with the Company, he will
acquire or become acquainted with the Company's and Honeywell's trade
secrets and confidential information. He agrees that while he works for
the Company, and after his employment with the Company ends (no matter what
causes his employment to end), he will not reveal or make accessible to
anyone any Company or Honeywell trade secrets or confidential information,
except when he does so in the ordinary course of the Company's business and
for the Company's benefit. He also agrees that he will not use Company or
Honeywell trade secrets or confidential information in any way other than
for the benefit of the Company. He understands and agrees that
"confidential information" includes any information or compilations of
information that derive independent economic value from not being generally
known or readily ascertainable by proper means by other persons and which
relate to any aspect of the Company's or Honeywell's business, including
but not limited to information relating to the Company's or Honeywell's
technology, processes, systems and products, research and development,
philosophies and strategies, product design and manufacturing information,
buying habits and preferences of present and prospective custom- ers,
pricing and sales policies, sales techniques and concepts, information
pertaining to current or pending bids and proposals, and vendor and
customer lists. Any information which he obtains at the Company while he
is employed there which he has reason to believe to be confidential
information, or which is treated by the Company or Honeywell as being
confidential information, will be considered to be confidential information
for purposes of this Agreement.
2. Conflicts of Interest. During Executive's employment with the
Company, he agrees to avoid relationships with individuals or businesses
which might impair or seem to impair the proper performance of his
responsibilities at the Company. He agrees not to become involved with any
activity if that activity:
a. Competes with the Company or Honeywell or provides services or
assistance to a competitor of the Company or Honeywell; or
b. Interferes in any way with his Company duties, such as requiring
Company time or facilities; or
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c. Embarrasses the Company or Honeywell or interferes with the
Company's or Honeywell's ability to meet its objectives.
Executive understands that he may not use the Company's facilities or
identifications (such as telephone number or address) to operate another
business, profession, or to do any other work for another employer, either
during the term of his employment with the Company or thereafter. However,
during the period this Agreement is in effect, the Company shall, without
charge, provide Executive with suitable office space, secretarial support
and a computer to perform his duties hereunder and manage his own personal
affairs and investments.
3. Non-competition.
a. Period of Non-Competition. Executive agrees that for a period
which ends either two (2) years after his separation from employment
with the Company, or three (3) years after the Effective Time,
whichever occurs later, no matter why his employment ends and
regardless of whether the termination of his employment was voluntary
or involuntary, he will not
(1) directly or indirectly enter into the employ of, or render or
engage in any services to, any person, firm, corporation, or
organization which is a competitor of Honeywell or the Company
with respect to (i) products which the lines of business of
Honeywell or the Company with which Executive was actively
involved during the term of his employment with the Company (the
"Relevant Lines of Business") are producing, or services which
the Relevant Lines of Business are providing, at that time, or
(ii) products or services which Executive has reason to know the
Relevant Lines of Business has plans to produce or provide within
eighteen months of that time, or (iii) products which Honeywell
or the Company has produced or services which Honeywell or the
Company has provided at any time subsequent to the Effective Time
(competitors with respect to (i) through (iii), above, are
hereinafter referred to as "Competitor"), where Executive would
be performing services for the Competitor within the United
States of America, Asia, Europe, or any other country in which
the Relevant Lines of Business do business on the date of
Executive's separation from employment with the Company; or
(2) directly or indirectly serve as a partner, shareholder,
creditor, director, officer, principal, agent, employee, trustee,
consultant or advisor for or on behalf of any such Competitor.
The ownership of less than five percent (5%) of any class of the
outstanding securities of any corporation whose shares are traded
on a U.S. national securities exchange or quoted on The Nasdaq
Stock Market, even though such corporation may be a Competitor,
shall not be deemed to constitute an interest in such Competitor
which violates clause (2) of the immediately preceding sentence.
b. Solicitation of Other Employees. Executive agrees that for a period
which ends either two (2) years after his separation from employment with
the Company, or three (3) years after the Effective Time, whichever occurs
later, no matter why his employment ends and regardless of whether it was
voluntary or involuntary, he will not, directly or indirectly, solicit to
employ any employee of Honeywell or the Company or employ any employee of
Honeywell or the Company; provided, however, that the foregoing restriction
shall not apply where, notwithstanding Executive's reasonable inquiry, he
is unaware of such individual's employment with Honeywell or the Company.
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c. Survives Expiration of Agreement. Executive agrees that the
covenants contained in this Agreement, including those in this
paragraph IV.C.3., will continue in effect after the termination of
his employment with the Company, and will continue in effect after the
termination of this Agreement for the period indicated herein.
4. Intellectual Property.
The Parties agree:
a. All right, title and interest in and to any invention, design, or
development, patentable or not, which Executive first conceives and
reduces to writing or first reduces to practice either individually or
jointly with others, and which either (i) arose out of his employment
with Measurex or (ii) which arises out of his employment with the
Company, will be the property of the Company. Executive will promptly
disclose all such inventions, designs or developments to the Company
and execute all papers necessary to assist the Company in obtaining
patents or any other form of protection in any and all countries on
such inventions, designs, or developments, patentable or not, and for
assigning same to the Company; and
b. All right, title and interest in all copyrightable material and
works of authorship which Executive conceives and reduces to writing
or originates either individually or jointly with others, and which
either (i) arose out of his employment with Measurex, or (ii) arises
out of his employment with the Company will be the property of the
Company. Executive will execute all papers and perform all other acts
necessary to assist the Company in obtaining copyrights on such
materials in any and all countries; and
c. All proprietary, legally protectable know-how, trade secrets
information, and related material or information conceived and reduced
to writing or originated by Executive, either individually or jointly
with others and which either (i) arose out of his employment with
Measurex, or (ii) arises out of his employment with the Company, shall
be the property of the Company; and
d. Executive further agrees to assign and hereby does assign to the
Company all rights, title, and interest in and to all inventions,
designs, and developments, patentable or not, copyrightable material,
legally protectable know-how, trade secrets and any works of
authorship which either (i) arose out of his employment with Measurex,
or (ii) arises out of his employment with the Company; and
e. Executive will disclose promptly to the Company all ideas,
discoveries, improvements and inventions (hereinafter collectively
called "Invention" or "Inventions") conceived and reduced to writing,
reduced to practice or made by him either individually or jointly with
others, and which (i) arose prior to the Effective Time out of his
employment with Measurex, or (ii) arises during the term of his
employment with the Company, which (A) relate to the Relevant Lines of
Business's products at the time of the Invention or applicable to or
useful therewith, or (B) relate to the Relevant Lines of Business's
manufacturing or other processes or procedures at the time of the
Invention or to machinery or apparatus useful in connection therewith,
or (C) relate to the Relevant Lines of Business's investigations or to
the nature of the business of the Relevant Lines of Business at the
time of the Invention, or (D) results in or relates in any material
respect to any work Executive may do on behalf or at the request of
the Company. All such Inventions which Executive is obligated to
disclose, whether patented or not, shall be and remain the property of
the Company or its nominees, successors or assigns; and
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f. The provisions of paragraphs IV.C.4.a. through e. of this
Agreement shall not apply to any Invention for which no equipment,
supplies, facility or trade secret information of Measurex, Honeywell
or the Company was used and which was developed entirely on
Executive's own time, and (1) which does not relate (a) directly to
the business of the Company or the Relevant Lines of Business or (b)
to the Company's actual or anticipated research or development, and
(2) which does not in any material respect result from any work
performed by Executive for the Company.
g. Executive will assist the Company and its nominees, successors
and assigns, upon request, in every proper way during and following
the period of his employment by the Company, at no expense to
Executive, to obtain and maintain for the benefit of the Company and
its nominees, successors and assigns, patents in any and all countries
for Inventions which Executive is obligated to assign. Such
assistance shall include, but not be limited to, the execution and
delivery of specific assignments of any such Invention and all
domestic and foreign patent rights therein, and all other papers and
documents of every nature which relate to the securing and maintenance
of such patent rights, and the performance of all other lawful acts,
such as the giving of testimony in any interference proceedings,
infringement suits or other litigation, as may be deemed necessary or
advisable by the Company or its nominees, successors or assigns; in
providing such assistance, Executive shall be entitled to
reimbursement of all reasonable out-of-pocket expenses and, if
services are provided by Executive after the period of his employment
by the Company, to reasonable compensation for the time spent by
Executive in performing such services; and
h. This paragraph IV.C.4. of this Agreement shall be binding on
Executive, his heirs and successors, and may be transferred by the
Company.
5. Employer's Property. Executive acknowledges that all property of the
Company of any and every nature or kind created or used by Execu- tive
(including, but not limited to, equipment, automobiles, credit cards,
books, records, reports, files, manuals, literature, confidential
information or other materials or authorship of copyrightable materials)
pursuant to Executive's employment by the Company, or furnished by the
Company to Executive, shall remain and be the exclusive property of the
Company at all times and shall be surrendered to the Company, in good
condition, normal wear and tear excepted, promptly on the termination of
Executive's employment irrespective of the time, manner or cause of the
termination. Any information of a proprietary and/or confidential nature
which relates to Honeywell or the Company and which is stored in
Executive's own computer or computer memory medium or the like shall be
destroyed by Executive upon termination of his employment with the Company
unless otherwise directed by the Company.
D. Continuing Obligation. Notwithstanding the cessation of any payments
provided by Paragraph III.C. herein, upon the termination of this Agreement or
termination of Executive's employment pursuant to Paragraph III.D., Executive
shall not be relieved of his obligations to perform the covenants contained in
Paragraphs IV.C.1., 2., 3., 4., and 5. The requirements and obligations
imposed on Executive and the Company by Paragraphs IV.C.1., 2., 3., 4., and 5.
of this Agreement survive the expiration of Executive's employment with the
Company, and the termina- tion of all other provisions of this Agreement.
E. Remedies.
1. Injunctive Relief. Executive acknowledges and agrees that, without
prejudice to any other rights of the Company, in the event of his violation
or attempted violation of any
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of the covenants contained in Paragraphs IV.C.1., 2., 3., 4., and 5.
of this Agreement, an interim injunction may be granted immediately by
any court of competent jurisdiction. Executive agrees that, in
addition to injunctive relief, the Company shall be entitled to any
and all other legal and equitable relief, including money damages
caused by any breach of this Agreement.
2. Executive's Claims Can Not Preclude Enforcement of Covenants by
the Company. Executive understands and agrees that the Company has a
material interest in preserving the relationship it has developed with
its customers against impairment by his competitive activities.
Accordingly, Executive agrees that the restrictions and covenants
contained in Paragraphs IV.C.1., 2., 3., 4., and 5., and his
agreement to observe them by his execution of this Agreement, are of
the essence to this Agreement and constitute a material inducement to
the Company to enter into this Agreement and to employ Executive, and
that the Company would not enter into this Agreement absent his
agreement to abide by the restrictions and covenants contained in
Paragraphs IV.C.1., 2., 3., 4., and 5. of this Agreement.
Furthermore, any claim or cause of action by Executive against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of the
covenants or restrictions contained herein.
F. Revisions by Court. If any provision in this Agreement, including,
but not limited to, the provisions and covenants contained in Paragraphs
IV.C.1., 2., 3., 4., and 5. of this Agreement, are found by a court of
competent jurisdiction to be unenforceable as written, Executive and the
Company hereby specifically and irrevocably authorize and request said
court to revise the unenforceable provisions in a manner which shall result
in the provisions being enforceable while remaining as similar as legally
possible to the purpose and intent of the original.
V. NOTICES. Any notice, demand, request, amendment, waiver or other
communication under this Agreement shall be in writing and shall be deemed to
have been duly given (i) on the date of delivery if delivered to the address of
the party specified below (including delivery by courier), or (ii) on the fifth
day after mailing if mailed to the party to whom notice is to be given to the
address specified below, by first class mail, certified or registered, return
receipt requested, postage prepaid, or (iii) on the date of transmission if sent
by facsimile transmission to the facsimile number given below, and telephonic
confirmation of receipt is obtained promptly after completion of transmission,
as follows:
If to the Company: Honeywell Inc.
00000 X. Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
ATTN: President, Industrial Automation
and Control
Facsimile: (000) 000-0000
with a copy to: Honeywell Inc.
Honeywell Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
ATTN: General Counsel
Facsimile: (000) 000-0000
If to Executive: Xx. Xxxxx Xxxxxx
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Any party may from time to time change its address or facsimile number for the
purpose of notices to that party by a similar notice specifying a new address
or facsimile number, but no such
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change shall be deemed to have been given until it is actually received by the
party sought to be charged with its contents.
VI. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the employment of Executive. Any and all
previous agreements, arrangements or understandings, written or oral, express
or implied, between the parties or on their behalf, relating to the employment
of Executive by the Company or Measurex are terminated and canceled, and each
of the parties releases and forever discharges the other of and from all manner
of actions, causes of action, claims and demands whatsoever, under or relating
to any such agreements, arrangements or understandings.
VII. AMENDMENTS; WAIVERS.
A. This Agreement may be amended or modified, and any of the terms,
covenants, or conditions hereof may be waived only by a written
instrument executed by the parties hereto, or in the case of a waiver, by
the party waiving compliance. Executive may not sign a waiver or
amendment on behalf of the Company.
B. Any waiver or amendment must be communicated in accordance with the
provisions of Paragraph V.
C. Any waiver by Executive or by the Company of a breach of this
Agreement shall not result in a waiver of any other breach by either
party to this Agreement. This means that if a party does not enforce a
particular provision of this Agreement at a particular time, that will
not waive such party's right to enforce that same provision at another
time, or to enforce any other provision at any time.
VIII. SUCCESSORS AND ASSIGNS. Executive understands and agrees that he cannot
assign or otherwise transfer any of his obligations under this Agreement. He
understands and agrees that the Company may, at its option, assign or transfer
its rights under this Agreement to another organization or individual if there
is a merger, consolidation, transfer, or sale of all or substantially all of
the assets or stock of the Company, subject to the assumption of the Company's
obligations hereunder by such assignee or transferee. Executive understands
and agrees that if there is an assignment or transfer of the Company's rights
under this Agreement, then, subject to the assumption of the Company's
obligations hereunder by such assignee or transferee, this Agreement will
continue to be effective, will continue to bind him, and will inure to the
benefit of the organization or individual to whom the transfer or assignment
is made.
IX. SEVERABILITY. If any part of this Agreement is found to be invalid or
unenforceable, the parties agree that the invalid or unenforceable part of the
Agreement shall be considered deleted from the Agreement and the rest of the
Agreement will be unaffected and shall continue in full force and effect. The
parties agree that any provision of this Agreement that is found unenforceable
because it is overbroad will be limited to the extent that it is necessary to
make that provision enforceable under the applicable law. The parties recognize
the uncertainty of the law and agree that this Agreement should be enforced as
fully as the law will allow.
X. DELAWARE LAW AND VENUE. This Agreement will be construed and enforced in
accordance with the laws of the State of Delaware without regard to principles
of conflicts of law. The parties hereby consent to submit to the exclusive
jurisdiction of the courts of the State of Delaware and of the United States of
America located in the District of Delaware for any actions, suits, or
proceedings arising out of or relating to this Agreement, and the parties
further agree that service of any process, summons, notice or document by U.S.
registered mail to the last known address (or any mode of service recognized to
be effective by applicable law) shall be effective service of process for any
action, suit or proceeding brought in such court. The parties agree that any
dispute relating to or arising out of this Agreement shall be venued in the
State of Delaware. Notwithstanding the foregoing, the exclusive venue for any
cause of action brought by Executive with
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respect to a breach by the Company of its obligations under paragraph III.C. or
D. of this Agreement shall be the State of California and the federal courts of
California shall have jurisdiction over such cause of action.
XI. HEADINGS The headings used in this Agreement are for convenience only
and are not to be construed in any way as additions to or limitations of the
covenants and agreements contained in it.
XII. COUNTERPARTS This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
XIII. EXECUTIVE'S ACKNOWLEDGMENT OF VOLUNTARY AGREEMENT. Executive
acknowledges that he has carefully read this Agreement, that he understands its
terms and its legal effect, that all agreements between the Company and
Executive relating to the subjects covered by this Agreement are contained in
this Agreement, and that Executive has entered into this Agreement voluntarily
and not in reliance upon any promises or representations made by the Company
other than those made in this Agreement itself.
BY SIGNING BELOW, THE COMPANY AND EXECUTIVE AGREE TO THE TERMS OF THIS
AGREEMENT AS LISTED AND STATED ABOVE.
HONEYWELL ACQUISITION CORP.
Dated: January 26, 1997 By: /s/ Xxxxxx Xxx Xxxx
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Its: Vice President and Assistant Secretary
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Dated: January 26, 1997 /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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