Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Xxxxxxxxx Agreement") is being entered
into as of July 13, 1998 (the "Closing Date") by and among X.X. XXXXX CO., a
Nevada corporation ("Xxxxx"), METRON TECHNOLOGY CORPORATION, a California
corporation ("MTC"), METRON TECHNOLOGY B.V., a Netherlands corporation
("Purchaser") and XXXXX XXXXXXXXX ("Employee").
RECITALS
A. Pursuant to an Agreement and Plan of Merger and Reorganization dated
as of June 12, 1998 ("the Merger Agreement") among Xxxxx, Metron Acquisition
Sub, Inc.,(the "Merger Sub"), and Purchaser, Xxxxx'x stockholders are receiving
shares of capital stock of Purchaser in exchange for their shares of common
stock of Xxxxx as a result of the Merger of the Merger Sub with and into Xxxxx
(the "Merger"), and Xxxxx is becoming a wholly owned subsidiary of Purchaser.
B. Whereas pursuant to a Joinder Agreement dated June 12, 1998,
Employee has agreed to be bound by the terms and conditions of the Merger
Agreement as a Signing Stockholder.
C. Employee was a stockholder of Xxxxx prior to the Merger, and has
been serving as the Chairman of Xxxxx.
D. Purchaser and Xxxxx have agreed that as a condition to consummating
the Merger and the other transactions contemplated by the Merger Agreement,
Employee will execute and deliver the Xxxxxxxxx Agreement.
E. Contemporaneously with the execution and delivery of the Xxxxxxxxx
Agreement, Employee is executing and delivering to Xxxxx and Purchaser a
Noncompetition Agreement of even date herewith (the "Noncompetition Agreement").
The Merger Agreement, which Employee agreed to be bound by when he executed the
Joinder Agreement, and the Noncompetition Agreement, are referred to
collectively herein as the "Other Agreements."
AGREEMENT
In order to induce Purchaser to consummate the transactions
contemplated by the Merger Agreement, and in further consideration of the mutual
covenants and agreements contained herein, the parties agree as follows:
1. EMPLOYMENT
1.1 TERM; DUTIES.
(a) TERM. Employee agrees to serve as an employee of Xxxxx from
the Closing Date until Employee's employment as an employee of Xxxxx is
terminated pursuant to the provisions of Section 1.6.
(b) DUTIES. During his employment with Xxxxx, Employee shall
serve as Vice Chairman of Xxxxx and shall have such responsibilities as may
be assigned to him by Xxxxx'x Board of Directors. Employee agrees to serve
Xxxxx faithfully and in a professional manner consistent with the skill,
competence and efficiency expected of a Vice Chairman, and to devote
substantially all of his working time, attention and efforts during the term
of this Agreement to the business and affairs of Xxxxx. The foregoing,
however, shall not preclude Employee from engaging in civic, charitable or
religious activities or from devoting a reasonable amount of time to private
investments or from serving on the boards of directors of nonprofit entities,
so long as such activities and service are not performed for any competitor
of Xxxxx and so long as such activities do not materially interfere or
conflict with his responsibilities to Xxxxx. Activities conducted for a
for-profit entity shall require the prior written consent of the Chief
Executive Officer of Purchaser. Employee represents and warrants to Xxxxx
that he is under no contractual commitments inconsistent with his obligations
set forth in the Xxxxxxxxx Agreement. Employee's duties hereunder shall be
performed at the offices of Xxxxx, located in the Dallas, Texas standard
metropolitan statistical area or at such other location as Xxxxx and Employee
mutually agree; provided, however, that, in the performance of his duties,
Employee shall be required to travel at such times and to such places as
Xxxxx may reasonably request from time to time.
1.2 SALARY. In consideration of all services to be rendered by
Employee to Xxxxx, Xxxxx shall pay to Employee a salary of not less than
Employee's current base salary per annum, which is $198,450.00 per annum,
which salary (i) may be increased (but not decreased unless such decrease is
done on an equitable pro rata basis for both Xxxxx'x and MTC's executives
located in the United States and provided such decrease shall not exceed 10%
of Employee's base salary per annum at the time of such decrease) from time
to time by the Board of Directors of Xxxxx, (ii) shall be reviewed at least
annually by the Board of Directors of Xxxxx (although the Board is not under
any obligation to increase the salary of Employee), (iii) shall be payable at
such times as other salaried employees of Xxxxx receive their regular salary
payments, and (iv) shall be subject to standard withholdings and deductions.
1.3 OTHER BENEFITS.
(a) MTC BENEFITS.. During his employment, Xxxxx, MTC and
Purchaser shall provide to Employee, the same benefits that Xxxxx now or in
the future makes generally available to its executive officers or that MTC
now or in the future makes generally available to all of its executive
officers located in the United States, subject to Employee's satisfaction of
the respective eligibility requirements for such benefits. Employee shall
receive credit under such benefit plans for his years of service with Xxxxx.
Employee shall pay any contributions which are generally required of
executives of Xxxxx or MTC to receive any such benefits. Such perquisites may
include but not necessarily be limited to, use of and reimbursement for
1.
cellular/car phone, professional organizational dues and professional
development seminars. It is anticipated that the Xxxxx Board will annually
review Employee's benefits package and may, in its discretion, increase (but
not decrease unless such decrease is done on an equitable pro rata basis for
both Xxxxx'x and MTC's executives) such perquisites.
(b) VACATION. During his employment, Employee shall be entitled
to not less than 20 days of paid vacation per year, which vacation days shall
accrue pro rata each month. Employee may accrue up to a maximum of 30 days
vacation, at which point further accrual stops until accrued vacation is
used, unless otherwise agreed between the parties.
(c) LIFE INSURANCE. In the event of Employee's death during the
term of this Agreement (including during the Consulting Period (as defined in
Section 1.6(d)(i)), Xxxxx shall pay to Employee's designated beneficiary
$1,000,000 of any amounts that Xxxxx receives pursuant to that certain life
insurance policy that Xxxxx maintains on Employee's life naming Xxxxx as
beneficiary. Xxxxx shall use its best efforts to maintain such policy, or a
policy providing similar benefits, in effect.
(d) BONUS PLANS.
(i) Employee shall be entitled to participate in the
annual incentive compensation plans for senior management of both Xxxxx and
Purchaser, attached as Exhibit 1.3(d)(i) and 1.3(d)(ii), pursuant to the
terms of these plans. Generally, any such compensation shall be paid out of a
pool funded by a percentage of the annual net income of Purchaser or Xxxxx
(as the case may be) calculated before income taxes and performance incentive
compensation. Xxxxx and Purchaser shall have the sole discretion to change or
eliminate their annual incentive compensation plans, to determine the amount
placed into the pool, to determine whether Employee is entitled to any
compensation under these plans, and to determine the amount of any such
compensation. Notwithstanding the foregoing provisions, Xxxxx and Purchaser
agree that for the fiscal year ending May 31, 1999, Xxxxx will pay Employee a
bonus of not less than $25,000; PROVIDED, HOWEVER, such payment will be made
subject to Sections 1.3(d)(ii) and (iii).
(ii) In addition, any such compensation shall be
considered earned as of the last day of Xxxxx'x and Purchaser's respective
fiscal years, as the case may be, provided that Employee has remained
employed on a full-time basis by Xxxxx through that date. If Employee is
awarded any such compensation, it will be paid in one lump sum as soon as
practicable after the annual audit of Purchaser's financial statements is
complete and Purchaser has completed the necessary calculations of the
amounts, if any, which are due. Any such compensation shall be subject to
standard withholdings.
(iii) In the event of Employee's death or disability (as such
term is defined in the Xxxxxxxxx Agreement) during the term of the Xxxxxxxxx
Agreement, for the fiscal year in which his death or disability occurs, Xxxxx
and Purchaser each shall pay Employee's estate (in the event of Employee's
death) or the Employee (in case of his disability) the bonus to which he
would otherwise have been entitled had he been employed as of the last day of
such fiscal year multiplied by a fraction, the numerator of which is the
number of days elapsed in the
2.
fiscal year up to and including the date of his death, or, in the case of
disability, the last day of active employment, and the denominator of which
is 365.
1.4 EXPENSES. Employee shall be entitled to prompt reimbursement
from Xxxxx for reasonable out-of-pocket business expenses reasonably incurred
by Employee during his employment in the performance of Employee's duties
under the Xxxxxxxxx Agreement; provided, however, that Xxxxx shall not be
required to reimburse Employee for any such expenses unless: (a) Employee
presents vouchers and receipts indicating in reasonable detail the amount and
business purpose of each of such expenses; and (b) Employee otherwise
complies with Xxxxx'x reasonable reimbursement policies established from time
to time and in effect during the Employment Term.
1.5 CLAIMS AGAINST XXXXX. Employee represents and warrants to Xxxxx
that he does not have claims and is not aware of any claims or rights against
Xxxxx arising directly or indirectly from his past employment with Xxxxx, and
in consideration for the Xxxxxxxxx Agreement, Employee hereby releases and
discharges Xxxxx and its affiliates from all claims, rights, causes of
action, demands and obligations arising directly or indirectly from his past
employment with Xxxxx except for any salary, bonuses, vacation pay, expense
reimbursement, health benefits or Xxxxx ESOP benefits owed to me by Xxxxx in
the ordinary course of business on the date of the Xxxxxxxxx Agreement.
Employee acknowledges that he is knowingly and voluntarily waiving and
releasing any rights he may have under the Age Discrimination in Employment
Act. He also acknowledges that the consideration given for the waiver in this
Section is in addition to anything of value to which he was already entitled.
He further acknowledges that he has been advised by this writing that: (i)
his waiver and release do not apply to any claims that may arise after he
signs the Xxxxxxxxx Agreement; (ii) he has the right to consult with an
attorney prior to executing the Xxxxxxxxx Agreement; (iii) he has twenty-one
(21) days within which to consider the Xxxxxxxxx Agreement (although he may
choose to voluntarily execute the Xxxxxxxxx Agreement earlier); (iv) he has
seven (7) days following the execution of the Xxxxxxxxx Agreement to revoke
the Xxxxxxxxx Agreement; and (v) the Xxxxxxxxx Agreement shall not be
effective until the date upon which the revocation period has expired, which
shall be the eighth day after this Agreement is executed by him ("Effective
Date"). In giving this release, which includes claims which may be unknown to
Employee at present, Employee acknowledges that he has read and understands
Section 1542 of the California Civil Code which reads as follows: "A general
release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor." Employee
hereby expressly waives and relinquishes all rights and benefits under that
section and any law of any jurisdiction of similar effect with respect to his
release of any claims he may have against Xxxxx contained in this Section 1.5.
1.6 TERMINATION.
(a) TERM OF AGREEMENT. Employee's employment as an employee of
Xxxxx (but not as a consultant to Xxxxx pursuant to Section 1.6(d)) may be
terminated by either party at any time, with or without cause, and with or
without advance notice. The date that either party gives notice of
termination shall be the "Termination Date."
3.
(b) DEFINITION OF "CAUSE." Employee's employment with Xxxxx
shall be deemed to have been terminated for "Cause" if such employment is
terminated following: (i) any intentional misconduct, fraud or bad faith on
the part of Employee in the performance of any of his duties as an employee
of Xxxxx that are materially injurious to Xxxxx; (ii) the conviction of
Employee of, or the entry by Employee of a plea of guilty or no contest to,
any felony; (iii) the breach by Employee of any material provision in any of
the Other Agreements if such breach is not fully cured by Employee within ten
days after he receives notice from Xxxxx of such breach; or (iv) the
continued failure of Employee to perform any reasonable duties assigned to
him by Xxxxx or to perform any of his obligations set forth in the Xxxxxxxxx
Agreement (other than any such failure resulting from incapacity due to
physical or mental illness), if such breach or failure is not fully cured by
Employee within ten days after he receives notice of such breach or failure
which specifically identifies the manner in which Xxxxx believes he has not
substantially performed his duties.
(c) DEFINITION OF "GOOD REASON." "Good Reason" shall mean (i) a
material change in the responsibilities, authority, title or office of
Employee resulting in the diminution of his position (ii) except for
decreases made on an equitable pro rata basis for both Xxxxx'x and MTC's
executives located in the United States, a diminution in Employee's annual
base salary below the amount stated in Section 1.2 or as same may be
increased from time to time, PROVIDED, HOWEVER, that such decrease shall not
exceed 10% of Employee's base salary per annum at the time of such decrease;
(iii) except for changes made on an equitable pro rata basis for both Xxxxx'x
and MTC's executives located in the United States, the failure by Xxxxx to
continue to provide Employee with benefits substantially similar to those
enjoyed by executives of Xxxxx or MTC; (iv) Xxxxx'x requiring Employee to be
based anywhere other than Xxxxx'x office at which he was based as of the date
of the Xxxxxxxxx Agreement; or (v) any material breach by Xxxxx or Purchaser
of the Xxxxxxxxx Agreement; excluding for all of these purposes an isolated,
insubstantial or inadvertent action not taken in bad faith which is remedied
by Xxxxx or Purchaser promptly after notice thereof is given by Employee.
(d) BENEFITS UPON TERMINATION BY XXXXX WITHOUT CAUSE, UPON
RESIGNATION BY EMPLOYEE FOR GOOD REASON OR DISABILITY. Should Employee's
employment be terminated by Xxxxx without Cause, should Employee resign for
Good Reason, or should Employee become disabled from performing his duties as
an employee of Xxxxx and the disability continues for a period of more than
15 consecutive weeks, during the first three years of employment after the
Closing Date, (i) Xxxxx shall pay to Employee any salary, vacation pay,
expense reimbursement, health benefits or Xxxxx ESOP benefits owed to
Employee in the ordinary course of business as of the Termination Date, and
(ii) should Employee execute the Employee Agreement and Release attached
hereto as Exhibit 1.6(d) Employee shall be entitled to enter into a
consulting arrangement with Xxxxx on the following terms and conditions:
(i) CONSULTING PERIOD. Xxxxx will retain Employee as a
consultant from the Termination Date until the date which is three (3) years
after the Closing Date (the "Consulting Period"). If Employee obtains full
time employment or the substantial equivalent of full time employment (e.g.
consulting) with another employer during the Consulting Period, the
Consulting Fees (as defined in Section 1.6(d)(iii)(1)) that Xxxxx is
obligated to pay shall be offset by the amount of earnings that Employee
receives from such other employment or substantial equivalent of employment.
Employee agrees to notify Xxxxx immediately, in writing, upon
4.
accepting an offer for any such employment or substantial equivalent of
employment with another employer. Xxxxx may terminate the Consulting Period
at any time for Cause. Upon termination of the Consulting Period, all of
Xxxxx'x obligations under Section 1.6(d) shall be terminated and of no effect.
(ii) CONSULTING DUTIES. Employee agrees that, while he is
retained by Xxxxx as a consultant, he will remain available to provide
consulting in any area of his expertise upon reasonable request by a duly
authorized officer of Xxxxx. Employee agrees to serve Kyser faithfully and in
a professional manner consistent with the skill, competence and efficiency
expected of a consultant and to make himself available for a maximum of ten
(10) hours per week. Xxxxx will not assign Employee any duties which would
cause him to be considered an affiliate of Xxxxx for Rule 144 purposes. As a
consultant and shareholder, Employee will not have any special restrictions
under Xxxxx'x xxxxxxx xxxxxxx window policy other than those restrictions
applicable to all Xxxxx employees.
(iii) CONSULTING COMPENSATION. During the Consulting
Period, Xxxxx agrees to pay Employee the following compensation:
(1) CONSULTING FEES. During the Consulting Period,
Xxxxx will continue Employee's base salary in effect as of the Termination
Date ("Consulting Fees"). Xxxxx will not deduct or withhold any amount from
Employee's Consulting Fees for taxes, social security, or other payroll
deductions, but will instead issue Employee a 1099 form with respect to his
Consulting Fees. Employee acknowledges that as an independent contractor
consultant, he will be responsible for the payment of all employment taxes
and any other taxes due and owing from Employee as a result of his Consulting
Fees and hereby indemnifies Xxxxx and holds it harmless from any liability
for any taxes, penalties, and interest which (a) may be assessed by any
taxing authority against Xxxxx or (b) which must be paid by Xxxxx to any
taxing authority, in each case, regarding taxes due and owing from Employee.
(2) HEALTH INSURANCE BENEFITS. After the Termination
Date, and to the extent permitted by the federal COBRA law and by Xxxxx'x
current group health insurance policies, Employee will be eligible to
continue his health insurance benefits. Employee will be provided with a
separate notice of his COBRA rights at or about the Termination Date. Xxxxx
will pay the cost of continuing such benefits during the Consulting Period up
until the time Employee obtains full-time employment. Xxxxx will not pay the
cost of continuing such coverage after Employee obtains full-time employment
or after the end of the Consulting Period, whichever comes first.
(3) OTHER COMPENSATION OR BENEFITS. Employee
acknowledges that, except as expressly provided in the Xxxxxxxxx Agreement,
he will not receive any additional compensation, severance or benefits after
the Termination Date, except for accrued and unpaid vacation time for all
periods prior to the Termination Date.
(iv) OTHER WORK ACTIVITIES. During the Consulting Period,
Employee will retain the right to engage in other consulting relationships or
employment in addition to his work for Xxxxx provided that such consulting or
employment complies fully with Employee's Noncompetition Agreement. Xxxxx
agrees to make reasonable arrangements to enable Employee
5.
to perform his consulting services for Xxxxx at such times and in such a
manner so that it will not interfere with other activities in which he may
engage.
(e) NO BENEFITS IF TERMINATED BY XXXXX FOR CAUSE OR UPON
RESIGNATION BY EMPLOYEE WITHOUT GOOD REASON. Employee understands and agrees
that should his employment be terminated for Cause by Xxxxx, or should he
resign without Good Reason, he shall not be entitled to any consulting
relationship with Xxxxx nor shall he be entitled to any other severance
benefits whatsoever.
(f) BREACH BY XXXXX OR PURCHASER. If either Xxxxx or Purchaser
materially breaches any of its obligations under the Xxxxxxxxx Agreement,
then Employee's obligations under Sections 3 and 4 of the Noncompetition
Agreement shall be terminated and of no force and effect. The remaining
provisions of the Noncompetition Agreement, including without limitation,
Section 2 of the Noncompetition Agreement, shall remain in full force and
effect.
1.7 DEATH OF EMPLOYEE. The Xxxxxxxxx Agreement shall terminate upon
the death of Employee, provided that any payments under section 1.3(e) which
Employee would be entitled to receive if the bonus determination had been
made as of the date of his death shall be payable for the portion of the year
preceding his death in accordance with Section 1.3(e) hereof. Within 10 days
of receiving notice of Employee's death, Xxxxx shall pay Employee's estate
all salary due or accrued as of the date of his death, and all accrued
vacation pay. Xxxxx and Purchaser shall promptly pay Employee's estate for
all bonuses due promptly after calculation of such amounts in accordance with
normal procedures under the respective bonus plans.
1.8 DISABILITY. If Employee becomes disabled from performing his
duties as an employee of Xxxxx and the disability has continued for a period
of more than 15 consecutive weeks, Xxxxx may, in its discretion, determine
that Employee will not return to work and terminate his employment as an
employee (but not as a consultant) with Xxxxx under the Xxxxxxxxx Agreement.
Upon any such termination for disability, Employee during the period he
remains disabled, to the extent he is otherwise eligible, shall be entitled
to such disability, medical, life insurance, and other benefits as may be
provided generally for disabled employees of Xxxxx or MTC who are located in
the Untied States. As used herein and for purposes only of determining bonus
and salary payments, the term "disability" shall have the same meaning
provided in Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended, except for that section's reference to "12 months," which time
period shall instead be as provided herein. In the event of Employee's
termination on grounds of disability, Xxxxx and Purchaser shall pay Employee
all salary due or accrued as of the date of such termination, and all accrued
vacation pay and bonuses, Xxxxx and Purchaser shall promptly pay Employee for
all bonuses due promptly after calculation of such amounts in accordance with
normal procedures under the respective bonus plans.
1.9 RELOCATION. During the term of his employment pursuant to the
Xxxxxxxxx Agreement, Employee shall not be required to relocate, without his
consent, from the general vicinity of Dallas, Texas.
6.
1.10 INDEMNIFICATION.
(a) Except to the extent modified below in (b), with regard to
Employee's performance of services on behalf of Xxxxx as an employee,
officer, director, or agent, Xxxxx agrees, to the extent permitted by
applicable law, to fully indemnify Employee and to hold him harmless from and
against all claims, damages, judgments, losses, liabilities, fees and
expenses incurred by him or threatened against him in connection with his
performance of services hereunder and to make advances to him for the payment
of legal fees, witness fees, expenses and costs related thereto, Xxxxx also
agrees to pay any damages, judgments, fines and amounts paid in settlement
and any other amounts the Employee becomes legally obligated to pay because
of any claim or claims made against or by Employee in connection with any
threatened, pending or completed action, suit or proceeding to which Employee
is entitled to indemnification pursuant to the terms of this Section 1.10;
PROVIDED, HOWEVER, Employee shall not settle any such proceeding without the
express written consent of Xxxxx. Purchaser and Xxxxx agree to use their best
efforts to include Employee in the coverage of any errors and omissions
and/or directors' and officers' insurance policies, if any, obtained by
Purchaser, MTC or Xxxxx for officers and directors of MTC and Xxxxx,
respectively.
(b) The indemnification provisions of Section 1.10(a) shall not
apply with respect to the obligations of Xxxxx to indemnify Employee in the
following events:
(i) to the extent that Employee is indemnified pursuant to
any insurance purchased and maintained by or on behalf of Purchaser and/or
Xxxxx pursuant to the provisions of Section 1.10(a) of the Xxxxxxxxx
Agreement and any resulting obligations are actually paid on behalf of or
reimbursed to Employee pursuant to such insurance;
(ii) on account of Employee's acts or omissions that
involve intentional misconduct;
(iii) on account of violations of the provisions of
Section 1.6(b) of the Xxxxxxxxx Agreement;
(iv) on account of acts or omissions of Employee that
Employee believed at the time of the act or omission to be contrary to the
best interests of Xxxxx or its stockholders or that involve the absence of
good faith on the part of Employee;
(v) with respect to any transaction from which Employee
derived an improper personal benefit;
(vi) on account of acts or omissions that show a reckless
disregard by Employee for his duties to Xxxxx or its stockholders in
circumstances in which Employee was aware, or should have been aware, in the
ordinary course of performing an officer's duties, of a risk of serious
injury to Xxxxx or its stockholders; or
7.
(vii) on account of acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of Employee's
duties to Xxxxx or its stockholders.
(c) CONTINUATION OF INDEMNITY. Xxxxx'x indemnity obligations
contained herein shall continue during the period Employee is a director,
officer, employee or other agent of Purchaser, MTC or Xxxxx, respectively (or
is or was serving at the request of Purchaser, MTC or Xxxxx as a director,
officer, employee or other agent of another corporation, partnership, joint
venture trust, employee benefit plan or other enterprise) and shall survive
the termination of Employee's employment and consulting arrangements with
Xxxxx and continue thereafter so long as Employee shall be subject to any
possible claim or threatened, pending or completed action, suit or
proceeding, by reason of the fact that Employee was serving in the capacity
referred to herein and to the extent he would otherwise be entitled to
indemnification pursuant to Section 1.10.
(d) EXPENSES. Upon request, Xxxxx shall advance, prior to the final
disposition of any proceeding, following request therefor, such advance not
to be unreasonably withheld or delayed, all expenses incurred by Employee in
connection with such proceeding upon receipt of an undertaking by or on
behalf of Employee to repay said amounts if it shall be determined ultimately
that Employee is not entitled to be indemnified under the provisions of the
Xxxxxxxxx Agreement, applicable law, Xxxxx'x charter documents, or otherwise.
2. MISCELLANEOUS PROVISIONS.
2.1 OTHER AGREEMENTS. Nothing in the Xxxxxxxxx Agreement shall limit
Employee's or Xxxxx'x obligations or the rights and remedies of Employee or
Xxxxx under the Other Agreements, and nothing in any of the Other Agreements
shall limit Employee's or Xxxxx'x obligations or the rights and remedies of
Employee or Xxxxx under the Xxxxxxxxx Agreement.
2.2 SURRENDER OF RECORDS AND PROPERTY. Within three (3) days after
the Termination Date, Employee shall deliver promptly to Xxxxx (a) all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables and calculations and all copies thereof in
his possession or under his control which are the property of Xxxxx or which
relate in any way to the business, products, practices or techniques of
Xxxxx, and (b) all other property and confidential information of Xxxxx or
Purchaser in his possession or under his control.
2.3 NOTICES. Any notice or other communication required or permitted
to be delivered to either party under the Xxxxxxxxx Agreement shall be in
writing and shall be deemed properly delivered, given and received when
delivered (by hand, by registered mail, by courier or express delivery
service or by facsimile) to the address or facsimile telephone number set
forth beneath the name of such party below (or to such other address or
facsimile telephone number as such party shall have specified in a written
notice given to the other party hereto):
IF TO XXXXX: X.X. Xxxxx Co.
c/o Metron Technology
0000 Xxx Xxxxxxxx Xxxxxxx, Xxxxx 000
0.
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
IF TO EMPLOYEE:
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2.4 SEVERABILITY. In the event that any provision of the Xxxxxxxxx
Agreement, or the application of any such provision to any person, entity or
set of circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of the Xxxxxxxxx Agreement, and
the application of such provision to persons, entities or circumstances other
than those as to which it is determined to be invalid, unlawful, void or
unenforceable, shall not be impaired or otherwise affected and shall continue
to be valid and enforceable to the fullest extent permitted by law.
2.5 GOVERNING LAW. The Xxxxxxxxx Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Texas (without giving effect to principles of conflicts of laws).
2.6 WAIVER. No failure on the part of either party to exercise any
power, right, privilege or remedy under the Xxxxxxxxx Agreement, and no delay
on the part of either party in exercising any power, right, privilege or
remedy under the Xxxxxxxxx Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise of any
such power, right, privilege or remedy shall preclude any other or further
exercise thereof or of any other power, right, privilege or remedy. Neither
party shall be deemed to have waived any claim arising out of the Xxxxxxxxx
Agreement, or any power, right, privilege or remedy under the Xxxxxxxxx
Agreement, unless the waiver of such claim, power, right, privilege or remedy
is expressly set forth in a written instrument duly executed and delivered on
behalf of such party; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
2.7 CAPTIONS. The captions contained in the Xxxxxxxxx Agreement are
for convenience of reference only, shall not be deemed to be a part of the
Xxxxxxxxx Agreement and shall not be referred to in connection with the
construction or interpretation of the Xxxxxxxxx Agreement.
2.8 COUNTERPARTS. The Xxxxxxxxx Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one agreement.
2.9 FURTHER ASSURANCES. Each party hereto shall execute and/or cause
to be delivered to the other party hereto such instruments and other
documents and shall take such other actions as such other party may
reasonably request to effectuate the intent and purposes of the Xxxxxxxxx
Agreement.
9.
2.10 ENTIRE AGREEMENT. The Xxxxxxxxx Agreement and the Other
Agreements set forth the entire understanding of the parties relating to the
subject matter hereof and thereof and supersede all prior agreements and
understandings between the parties relating to the subject matter hereof and
thereof.
2.11 AMENDMENTS. The Xxxxxxxxx Agreement may not be amended,
modified, altered or supplemented other than by means of a written instrument
duly executed and delivered on behalf of Xxxxx and Employee.
2.12 ASSIGNMENT. The Xxxxxxxxx Agreement and all rights and
obligations of Employee hereunder are personal to Employee and may not be
transferred or assigned by Employee at any time. Xxxxx may, with Employee's
written consent (which consent shall not be unreasonably withheld), assign
its rights under the Xxxxxxxxx Agreement to any entity that assumes Xxxxx'x
obligations hereunder in connection with any sale or transfer of all or
substantially all of Xxxxx'x assets to such entity. This Agreement shall not
be terminated by a voluntary or involuntary dissolution of Xxxxx, MTC or
Purchaser or the transfer of all or substantially all the stock or assets of
Xxxxx, MTC or Purchaser or the merger of Xxxxx, MTC or Purchaser with or into
another entity.
2.13 BINDING NATURE. Subject to Section 2.12, the Xxxxxxxxx
Agreement will be binding upon and inure to the benefit of Xxxxx and its
successors and assigns and Employee and his representatives, executors,
administrators, estate, heirs, successors and assigns.
2.14 ATTORNEYS' FEES AND EXPENSES. If any legal action or other
legal proceeding relating to the enforcement of any provision of the
Xxxxxxxxx Agreement is brought against either party hereto, the prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and
disbursements (in addition to any other relief to which the prevailing party
may be entitled).
2.15 CONSTRUCTION.
(a) For purposes of the Xxxxxxxxx Agreement, whenever the
context requires: the singular number shall include the plural, and vice
versa; the masculine gender shall include the feminine and neuter genders;
the feminine gender shall include the masculine and neuter genders; and the
neuter gender shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party
shall not be applied in the construction or interpretation of the Xxxxxxxxx
Agreement.
(c) As used in the Xxxxxxxxx Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in the
Xxxxxxxxx Agreement to "Sections" and "Exhibits" are intended to refer to
Sections of the Xxxxxxxxx Agreement and Exhibits to the Xxxxxxxxx Agreement.
10.
The parties hereto have caused the Xxxxxxxxx Agreement to be executed
and delivered as of the date first above written.
XXXXX:
X.X. XXXXX CO.
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxx, Xx.
-------------------------
Title: E.V.P
-------------------------
MTC:
METRON TECHNOLOGY CORPORATION
By: /s/ Xx Xxxxx
-------------------------
Name: Xx Xxxxx
-------------------------
Title: President
-------------------------
PURCHASER:
METRON TECHNOLOGY B.V.
By: /s/ Xx Xxxxx
-------------------------
Name: Xx Xxxxx
-------------------------
Title: Managing Director,
President & CEO
-------------------------
EMPLOYEE:
/s/ Xxxxx Xxxxxxxxx
-------------------------------
XXXXX XXXXXXXXX
11.
