EXHIBIT 10.16
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of this 1st
day of March, 2004 by and between Xxxxx Xxxxxxx (the "Employee") and Eagle Test
Systems, Inc., an Illinois corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee and the Employee
desires to obtain employment with the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. Employment. Subject to the provisions of Section 6, the Company
hereby employs Employee and Employee accepts such employment upon the terms and
conditions hereinafter set forth.
2. Term of Employment. Subject to the provisions of Section 6, the term
of Employee's employment pursuant to this Agreement shall commence on and as of
the date hereof (the "Effective Date") and shall terminate on the first
anniversary of the Effective Date (such period, the "Term"). Notwithstanding the
foregoing, the Term shall automatically extend for an additional year on each
anniversary of the Effective Date unless either party provides written notice to
the other party within thirty (30) days of the date on which the Term would
expire that he or it chooses not to extend the Term.
3. Duties; Extent of Service. During Employee's employment under this
Agreement, Employee (i) shall serve as an employee of the Company with the title
and position of Chief Financial Officer, reporting to the Chief Executive
Officer of the Company, (ii) shall have such executive responsibilities as the
Chief Executive Officer of the Company shall from time to time designate,
provided that, in all cases Employee shall be subject to the oversight and
supervision of the Board of Directors of the Company in the performance of his
duties, (iii) upon the request of the Chief Executive Officer of the Company,
shall serve as an officer and/or director of any of the Company's subsidiaries,
and (iv) shall render all services reasonably incident to the foregoing.
Employee hereby accepts such employment, agrees to serve the Company in the
capacities indicated, and agrees to use Employee's best efforts in, and shall
devote Employee's full working time, attention, skill and energies to, the
advancement of the interests of the Company and its subsidiaries and the
performance of Employee's duties and responsibilities hereunder. The foregoing,
however, shall not be construed as preventing Employee from engaging in
religious, charitable or other community or non-profit activities that do not
impair Employee's ability to fulfill Employee's duties and responsibilities
under this Agreement.
4. Salary and Bonus.
(a) During Employee's employment under this Agreement, the Company
shall pay Employee a salary at the annual rate of $170,000 per annum (the "Base
Salary"). Such Base Salary shall be subject to withholding under applicable law,
shall be pro rated for partial years and shall be payable in periodic
installments in accordance with the Company's usual practice for executive
officers of the Company as in effect from time to time.
(b) For each one-year period or portion thereof during Employee's
employment under this Agreement, Employee shall be eligible to participate in
any bonus or other performance plan established by the Board of Directors from
time to time for executive officers of the Company (the "Incentive Bonus").
5. Benefits.
(a) During Employee's employment under this Agreement, Employee
shall be entitled to participate in any and all ESOP, medical, pension, stock
option, profit sharing, dental and life insurance plans and disability income
plans, retirement arrangements and other employment benefits as in effect from
time to time for executive officers of the Company generally. Such participation
shall be subject to (i) the terms of the applicable plan documents (including,
as applicable, provisions granting discretion to the Board of Directors of the
Company or any administrative or other committee provided for therein or
contemplated thereby) and (ii) generally applicable policies of the Company.
Unless otherwise provided in the applicable plan documents, Employee shall be
eligible to participate in all such plans and other benefits as of the Effective
Date.
(b) During Employee's employment under this Agreement, Employee
shall receive paid vacation annually in accordance with the Company's practices
for executive officers, as in effect from time to time.
(c) The Company shall promptly reimburse Employee for all
reasonable business expenses incurred by Employee during Employee's employment
hereunder in accordance with the Company's practices for senior executive
officers of the Company, as in effect from time to time.
(d) Compliance with the provisions of this Section 5 shall in no
way create or be deemed to create any obligation, express or implied, on the
part of the Company or any of its affiliates with respect to the continuation of
any particular benefit or other plan or arrangement maintained by them or their
subsidiaries as of or prior to the date hereof or the creation and maintenance
of any particular benefit or other plan or arrangement at any time after the
date hereof, except as contemplated by Section 5(b) and 5(c).
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6. Termination and Termination Benefits. Notwithstanding the provisions
of Section 2, Employee's employment under this Agreement shall terminate under
the following circumstances set forth in this Section 6.
(a) Termination by the Company for Cause. Employee's employment
under this Agreement may be terminated for cause without further liability on
the part of the Company effective immediately upon a vote of the Board of
Directors or a determination by the Chief Executive Officer and written notice
to Employee. Only the following shall constitute "cause" for such termination:
(i) dishonest statements or acts of Employee with respect to
the Company or any affiliate of the Company;
(ii) the commission by Employee of, or indictment of Employee
for, (A) a felony or (B) any misdemeanor involving moral turpitude,
deceit, dishonesty or fraud ("indictment," for these purposes,
meaning an indictment, probable cause hearing or any other procedure
pursuant to which an initial determination of probable or reasonable
cause with respect to such offense is made);
(iii) the commission, in the reasonable judgment of the Board
of Directors, of an act involving a material violation of procedures
or policies of the Company;
(iv) a material and sustained failure of Employee to perform
the duties and responsibilities assigned or delegated under this
Agreement, as determined by the Board of the Directors, which such
failure continues for an unreasonable period of time, as determined
by the Board of Directors, after written notice has been given to
the Employee by the Board of Directors;
(v) gross negligence, willful misconduct or insubordination
of Employee with respect to the Company or any affiliate of the
Company; or
(vi) breach by Employee of any of Employee's obligations
under this Agreement.
(b) Termination by Employee Other than for Good Reason. Employee's
employment under this Agreement may be terminated by Employee by written notice
to the Board of Directors at least sixty (60) days prior to such termination.
(c) Termination by Employee for Good Reason. Subject to the
payment of Termination Benefits pursuant to Section 6(e) below, Employee's
employment under this Agreement also may be terminated by Employee for Good
Reason (as defined below) (which termination must be within ninety (90) days of
the occurrence
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of the events giving rise to such Good Reason) by written notice to the Board of
Directors setting forth such Good Reason and giving the Company a reasonable
period of time, not less than ten (10) business days, to eliminate such Good
Reason. For purposes of this Agreement, "Good Reason" shall mean the occurrence
of any of the following events: (i) a substantial adverse change in the nature
or scope of the Employee's responsibilities, authorities, powers, functions or
duties under this Agreement; (ii) a reduction in the Employee's annual base
salary except for an across-the-board salary reduction similarly affecting all
or substantially all management employees; or (iii) the relocation of the
offices at which the Employee is principally employed to a location more than
seventy (75) miles from such offices.
(d) Termination by the Company Without Cause. Subject to the
payment of Termination Benefits pursuant to Section 6(e), Employee's employment
under this Agreement may be terminated without cause by the Company by a vote of
the Board of Directors or a determination by the Chief Executive Officer upon
written notice to Employee. It is expressly agreed and understood that if this
Agreement is terminated by the Company without cause as provided in this Section
6(d), it shall not impair or otherwise affect Employee's Continuing Obligations
(as defined below).
(e) Certain Termination Benefits. Unless otherwise specifically
provided in this Agreement or otherwise required by law, all compensation and
benefits payable to Employee under this Agreement shall terminate on the date of
termination of Employee's employment under this Agreement. Notwithstanding the
foregoing, in the event of termination of Employee's employment with the Company
pursuant to Section 6(c) or Section 6(d) above, the Company shall provide to
Employee the following termination benefits ("Termination Benefits"):
(i) continuation of salary at a rate equal to fifty percent (50%)
of Employee's Base Salary as in effect on the date of termination for a
period of two years from the date of termination (payment shall be subject
to withholding under applicable law and shall be made in periodic
installments in accordance with the Company's usual practice for executive
officers of the Company as in effect from time to time); and
(ii) continuation of group health plan benefits during the first
twelve (12) months in which Employee is receiving payments pursuant to
subsection (i) above, to the extent authorized by and consistent with 29
U.S.C. Section 1161 et seq. (commonly known as "COBRA"), with the cost of
the regular premium for such benefits shared in the same relative
proportion by the Company and Employee as in effect on the date of
termination.
The Company shall have the right to terminate all of Termination Benefits set
forth in (i) and (ii) in the event that Employee fails to comply with Employee's
Continuing Obligations under this Agreement. The Company's liability for Base
Salary continuation pursuant to Section 6(e)(i) shall be reduced by the amount
of any severance pay due or
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otherwise paid to Employee pursuant to any severance pay plan or stay bonus plan
of the Company. Notwithstanding the foregoing, nothing in this Section 6(e)
shall be construed to affect Employee's right to receive COBRA continuation
entirely at Employee's own cost to the extent that Employee may continue to be
entitled to COBRA continuation after Employee's right to cost sharing under
Section 6(e)(ii) ceases. The Company and Employee agree that the Termination
Benefits paid by the Company to Employee under this Section 6(e) shall be in
full satisfaction, compromise and release of any claims arising out of any
termination of Employee's employment pursuant to Section 6(d), and that the
payment of the Termination Benefits shall be contingent upon Employee's delivery
of a general release of any and all claims (other than those arising under this
Agreement) upon termination of employment in a form reasonably satisfactory to
the Company, it being understood that no Termination Benefits shall be provided
unless and until Employee executes and delivers such release.
(f) Disability. If Employee shall be disabled so as to be unable
to perform the essential functions of Employee's then existing position or
positions under this Agreement with or without reasonable accommodation, the
Board of Directors may remove Employee from any responsibilities and/or reassign
Employee to another position with the Company for the remainder of the Term or
during the period of such disability. Notwithstanding any such removal or
reassignment, Employee shall continue to receive Employee's full Base Salary
(less any disability pay or sick pay benefits to which Employee may be entitled
under the Company's policies) and benefits under Section 4 of this Agreement
(except to the extent that Employee may be ineligible for one or more such
benefits under applicable plan terms) for a period of time equal to the lesser
of (i) six (6) months; or (ii) the remainder of the Term. If any question shall
arise as to whether during any period Employee is disabled so as to be unable to
perform the essential functions of Employee's then existing position or
positions with or without reasonable accommodation, Employee may, and at the
request of the Company shall, submit to the Company a certification in
reasonable detail by a physician selected by the Company to whom Employee or
Employee's guardian has no reasonable objection as to whether Employee is so
disabled or how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be conclusive of the
issue. Employee shall cooperate with any reasonable request of the physician in
connection with such certification. If such question shall arise and Employee
shall fail to submit such certification, the Company's determination of such
issue shall be binding on Employee. Nothing in this Section 6(e) shall be
construed to waive Employee's rights, if any, under existing law including,
without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. Section
2601 et seq. and the Americans with Disabilities Act, 42 U.S.C. Section 12101 et
seq.
(g) Death. Employee's employment and all obligations of the
Company hereunder shall terminate in the event of the death of the Employee
other than any obligation to pay earned but unpaid Base Salary.
(h) Notwithstanding termination of this Agreement as provided in
this Section 6 or any other termination of Employee's employment with the
Company,
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Employee's obligations under Section 7 hereof (the "Continuing Obligations")
shall survive any termination of Employee's employment with the Company at any
time and for any reason.
7. Non-Competition; Non-Solicitation; Confidentiality; Proprietary
Rights.
(a) The Employee hereby agrees that during the period commencing
on the date hereof and ending on the date that is two years following the date
of the termination of Employee's employment with the Company (the
"Noncompetition Period"), the Employee will not, without the express written
consent of the Company, directly or indirectly, anywhere in the United States or
in any foreign country in which the Company has conducted business, is
conducting business or is presently contemplating conducting business, engage in
any activity which is, or participate or invest in, or provide or facilitate the
provision of financing to, or assist (whether as owner, part-owner, shareholder,
member, partner, director, officer, trustee, employee, agent or consultant, or
in any other capacity), any business, organization or person other than the
Company (or any subsidiary or affiliate of the Company), and including any such
business, organization or person involving, or which is, a family member of the
Employee, whose business, activities, products or services are competitive with
any of the business, activities, products or services conducted or offered by
the Company or its subsidiaries or affiliates during any period in which the
Employee serves as an officer or employee of the Company or any of its
subsidiaries or affiliates. Without implied limitation, the foregoing covenant
shall be deemed to prohibit (a) hiring or engaging or attempting to hire or
engage for or on behalf of the Employee or any such competitor any officer or
employee of the Company or any of its direct and/or indirect subsidiaries and
affiliates, or any former employee of the Company and any of its direct and/or
indirect subsidiaries and affiliates who was employed during the six (6) month
period immediately preceding the date of such attempt to hire or engage, (b)
encouraging for or on behalf of the Employee or any such competitor any such
officer or employee to terminate his or her relationship or employment with the
Company or any of its direct or indirect subsidiaries and affiliates, (c)
soliciting for or on behalf of Employee or any such competitor any client of the
Company or any of its direct or indirect subsidiaries and affiliates, or any
former client of the Company or any of its direct or indirect subsidiaries and
affiliates who was a client during the six (6) month period immediately
preceding the date of such solicitation and (d) diverting to any person (as
hereinafter defined) any client or business opportunity of the Company or any of
any of its direct or indirect subsidiaries and affiliates.
Notwithstanding anything herein to the contrary, the Employee may
make passive investments in any enterprise the shares of which are publicly
traded if such investment constitutes less than two percent (2%) of the equity
of such enterprise.
Neither the Employee nor any business entity controlled by the
Employee is a party to any contract, commitment, arrangement or agreement which
could, following the date hereof, restrain or restrict the Company or any
subsidiary or affiliate of the Company from carrying on its business or restrain
or restrict the Employee from
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performing his employment obligations, and as of the date of this Agreement the
Employee has no business interests whatsoever in or relating to the industries
in which the Company or its subsidiaries or affiliates currently engage, and
other than passive investments in the shares of public companies of less than
two percent (2%).
(b) In the course of performing services hereunder, on behalf of
the Company (for purposes of this Section 7 including all predecessors of the
Company) and its affiliates, Employee has had and from time to time will have
access to Confidential Information (as defined below). Employee agrees (a) to
hold the Confidential Information in strict confidence, (b) not to disclose the
Confidential Information to any person (other than in the regular business of
the Company or its affiliates), and (c) not to use, directly or indirectly, any
of the Confidential Information for any purpose other than on behalf of the
Company and its affiliates. All documents, records, data, apparatus, equipment
and other physical property, whether or not pertaining to Confidential
Information, that are furnished to Employee by the Company or are produced by
Employee in connection with Employee's employment will be and remain the sole
property of the Company. Upon the termination of Employee's employment with the
Company for any reason and as and when otherwise requested by the Company, all
Confidential Information (including, without limitation, all data, memoranda,
customer lists, notes, programs and other papers and items, and reproductions
thereof relating to the foregoing matters) in Employee's possession or control,
shall be immediately returned to the Company.
(c) Employee hereby confirms that Employee is not bound by the
terms of any agreement with any previous employer or other party that restricts
in any way Employee's use or disclosure of information or Employee's engagement
in any business. Employee represents to the Company that Employee's execution of
this Agreement, Employee's employment with the Company and the performance of
Employee's proposed duties for the Company will not violate any obligations
Employee may have to any such previous employer or other party. In Employee's
work for the Company, Employee will not disclose or make use of any information
in violation of any agreements with or rights of any such previous employer or
other party, and Employee will not bring to the premises of the Company any
copies or other tangible embodiments of non-public information belonging to or
obtained from any such previous employment or other party.
(d) During and after Employee's employment, Employee shall
cooperate fully with the Company in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future against or on
behalf of the Company that relate to events or occurrences that transpired while
Employee was employed by the Company. Employee's full cooperation in connection
with such claims or actions shall include, but not be limited to, being
available to meet with counsel to prepare for discovery or trial and to act as a
witness on behalf of the Company at mutually convenient times. During and after
Employee's employment, Employee also shall cooperate fully with the Company in
connection with any investigation or review of any
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federal, state or local regulatory authority as any such investigation or review
relates to events or occurrences that transpired while Employee was employed by
the Company. The Company shall reimburse Employee for any reasonable
out-of-pocket expenses incurred in connection with Employee's performance of
obligations pursuant to this Section 7(d).
(e) Employee recognizes that the Company and its affiliates possess a
proprietary interest in all of the information described in Section 7(b) and
have the exclusive right and privilege to use, protect by copyright, patent or
trademark, or otherwise exploit the processes, ideas and concepts described
therein to the exclusion of Employee, except as otherwise agreed between the
Company and Employee in writing. Employee expressly agrees that any products,
inventions, discoveries or improvements made by Employee or Employee's agents or
affiliates in the course of Employee's employment, including any of the
foregoing which is based on or arises out of the information described in
Section 7(b), shall be the property of and inure to the exclusive benefit of the
Company. Employee further agrees that any and all products, inventions,
discoveries or improvements developed by Employee (whether or not able to be
protected by copyright, patent or trademark) during the course of his
employment, or involving the use of the time, materials or other resources of
the Company or any of its affiliates, shall be promptly disclosed to the Company
and shall become the exclusive property of the Company, and Employee shall
execute and deliver any and all documents necessary or appropriate to implement
the foregoing. Pursuant to the Illinois Employee Patent Act, this paragraph does
not apply to any invention for which no equipment, supplies, facility or trade
secret information of the Company was used and which was developed entirely on
the Employee's own time, unless (a) the invention relates to (i) the business of
the Company or (ii) the Company's actually or demonstrably anticipated research
or development or (b) the invention results from any work performed by the
undersigned for the Company.
(f) Employee agrees, while he is employed by the Company, to offer
or otherwise make known or available to it, as directed by the Board of
Directors of the Company and without additional compensation or consideration,
any business prospects, contracts or other business opportunities that Employee
may discover, find, develop or otherwise have available to Employee in the
Company's general industry and further agrees that any such prospects, contacts
or other business opportunities shall be the property of the Company.
(g) Employee acknowledges that the provisions of this Section 7
are an integral part of Employee's employment arrangements with the Company.
(h) For purposes of this Agreement:
(i) the term "Confidential Information" shall mean
information belonging to the Company which is of value to the
Company or with respect to which Company has right in the course of
conducting its
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business and the disclosure of which could result in a competitive
or other disadvantage to the Company. Confidential Information
includes information, whether or not patentable or copyrightable, in
written, oral, electronic or other tangible or intangible forms,
stored in any medium, including, by way of example and without
limitation, trade secrets, ideas, concepts, designs, configurations,
specifications, drawings, blueprints, diagrams, models, prototypes,
samples, flow charts processes, techniques, formulas, software,
improvements, inventions, data, know-how, discoveries, copyrightable
materials, marketing plans and strategies, sales and financial
reports and forecasts, customer lists, studies, reports, records,
books, contracts, instruments, surveys, computer disks, diskettes,
tapes, computer programs and business plans, prospects and
opportunities (such as possible acquisitions or dispositions of
businesses or facilities) which have been discussed or considered by
the management of the Company. Confidential Information includes
information developed by Employee in the course of Employee's
employment by the Company, as well as other information to which
Employee may have access in connection with Employee's employment.
Confidential Information also includes the confidential information
of others with which the Company has a business relationship.
Notwithstanding the foregoing, Confidential Information does not
include information in the public domain, unless due to breach of
Employee's duties under Section 7(b).
8. Parties in Interest; Certain Remedies. It is specifically understood
and agreed that this Agreement is intended to confer a benefit, directly or
indirectly, on the Company and its direct and indirect subsidiaries and
affiliates, and that any breach of the provisions of this Agreement by the
Employee or any of the Employee's affiliates will result in irreparable injury
to the Company and its subsidiaries and affiliates, that the remedy at law alone
will be an inadequate remedy for such breach and that, in addition to any other
remedy it may have, the Company or its subsidiaries and affiliates shall be
entitled to enforce the specific performance of this Agreement by the Employee
through both temporary and permanent injunctive relief without the necessity of
posting a bond or proving actual damages, but without limitation of their right
to damages and any and all other remedies available to them, it being understood
that injunctive relief is in addition to, and not in lieu of, such other
remedies.
9. Dispute Resolution.
(a) All disputes, claims, or controversies arising out of or
relating to this Agreement or any other agreement executed and delivered
pursuant to this Agreement or the negotiation, validity or performance hereof
and thereof or the transactions contemplated hereby and thereby, or the rights
and obligations of the parties hereunder or thereunder, that are not resolved by
mutual agreement shall be resolved solely and exclusively by binding arbitration
to be conducted before JAMS/Endispute, Inc. or its successor. The arbitration
shall be held in Chicago, Illinois before a single
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arbitrator and shall be conducted in accordance with the rules and regulations
promulgated by JAMS/Endispute, Inc. unless specifically modified herein.
(b) The parties covenant and agree that the arbitration shall
commence within one hundred eighty (180) days of the date on which a written
demand for arbitration is filed by any party hereto. In connection with the
arbitration proceeding, the arbitrator shall have the power to order the
production of documents by each party and any third-party witnesses. In
addition, each party may take up to three depositions as of right, and the
arbitrator may in his or her discretion allow additional depositions upon good
cause shown by the moving party. However, the arbitrator shall not have the
power to order the answering of interrogatories or the response to requests for
admission. In connection with any arbitration, each party shall provide to the
other, no later than seven (7) business days before the date of the arbitration,
the identity of all persons that may testify at the arbitration and a copy of
all documents that may be introduced at the arbitration or considered or used by
a party's witness or expert. The arbitrator's decision and award shall be made
and delivered within six (6) months of the selection of the arbitrator. The
arbitrator's decision shall set forth a reasoned basis for any award of damages
or finding of liability. The arbitrator shall not have power to award damages in
excess of actual compensatory damages and shall not multiply actual damages or
award punitive damages or any other damages that are specifically excluded under
this Agreement, and each party hereby irrevocably waives any claim to such
damages.
(c) The parties covenant and agree that they will participate in
the arbitration in good faith and that they will, except as provided below, (i)
bear their own attorneys' fees, costs and expenses in connection with the
arbitration, and (ii) share equally in the fees and expenses charged by
JAMS/Endispute, Inc. The arbitrator may in his or her discretion assess costs
and expenses (including the reasonable legal fees and expenses of the prevailing
party) against any party to a proceeding. Any party unsuccessfully refusing to
comply with an order of the arbitrators shall be liable for costs and expenses,
including attorneys' fees, incurred by the other party in enforcing the award.
This Section 9(c) applies equally to requests for temporary, preliminary or
permanent injunctive relief, except that in the case of temporary or preliminary
injunctive relief any party may proceed in court without prior arbitration for
the purpose of avoiding immediate and irreparable harm or to enforce the
provisions of Section 7.
(d) Each of the parties hereto irrevocably and unconditionally
consents to the exclusive jurisdiction of JAMS/Endispute, Inc. to resolve all
disputes, claims or controversies arising out of or relating to this Agreement
or any other agreement executed and delivered pursuant to this Agreement or the
negotiation, validity or performance hereof and thereof, or the transactions
contemplated hereby and thereby, or the rights and obligations of the parties
hereunder or thereunder, and further consents to the sole and exclusive
jurisdiction of the courts of State of California and/or the State of Illinois
for the purposes of enforcing the arbitration provisions of Section 8 of this
Agreement. Each party further irrevocably waives any objection to proceeding
before JAMS/Endispute, Inc. based upon lack of personal jurisdiction or to the
laying of venue and further irrevocably
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and unconditionally waives and agrees not to make a claim in any court that
arbitration before JAMS/Endispute, Inc. has been brought in an inconvenient
forum. Each of the parties hereto hereby consents to service of process by
registered mail at the address to which notices are to be given. Each of the
parties hereto agrees that its or his submission to jurisdiction and its or his
consent to service of process by mail is made for the express benefit of the
other parties hereto.
10. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or mailed by certified or registered mail (return receipt
requested) as follows:
To the Company: Eagle Test Systems, Inc.
000 Xxxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx
To Employee: Xxxxx Xxxxxxx
00000 Xxxx Xxxx Xxxxx
Xxxxxx Xxxx, XX 00000
or to such other address of which any party may notify the other parties as
provided above. Notices shall be effective as of the date of such delivery or
mailing.
11. Scope of Agreement. The parties acknowledge that the time, scope,
geographic area and other provisions of Section 7 have been specifically
negotiated by sophisticated parties and agree that all such provisions are
reasonable under the circumstances of the transactions contemplated hereby, and
are given as an integral and essential part of the transactions contemplated
hereby. The Employee has independently consulted with counsel and has been
advised in all respects concerning the reasonableness and propriety of the
covenants contained herein, with specific regard to the business to be conducted
by Company and its subsidiaries and affiliates, and represents that the
Agreement is intended to be, and shall be, fully enforceable and effective in
accordance with its terms.
12. Severability. In the event that any covenant contained in this
Agreement shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of time or over
too great a geographical area or by reason of its being too extensive in any
other respect, it shall be interpreted to extend only over the maximum period of
time for which it may be enforceable and/or over the maximum geographical area
as to which it may be enforceable and/or to the maximum extent in all other
respects as to which it may be enforceable, all as determined by such court in
such action. The existence of any claim or cause of action which the Employee
may have against the Company or any of its subsidiaries or affiliates shall not
constitute a defense or bar to the enforcement of any of the provisions of this
Agreement.
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13. Miscellaneous. This Agreement shall be governed by and construed
under the laws of the State of Illinois, without consideration of its choice of
law provisions, and shall not be amended, modified or discharged in whole or in
part except by an agreement in writing signed by both of the parties hereto. The
failure of either of the parties to require the performance of a term or
obligation or to exercise any right under this Agreement or the waiver of any
breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any other
right hereunder or be deemed a waiver of any subsequent breach of the provision
so breached, or of any other breach hereunder. This Agreement shall inure to the
benefit of, and be binding upon and assignable to, successors of the Company by
way of merger, consolidation or sale and may not be assigned by Employee. This
Agreement supersedes and terminates all prior understandings and agreements
between the parties (or their predecessors) relating to the subject matter
hereof. For purposes of this Agreement, the term "person" means an individual,
corporation, partnership, association, trust or any unincorporated organization;
a "subsidiary" means any corporation more than 50 percent of whose outstanding
voting securities, or any partnership, joint venture or other entity more than
50 percent of whose total equity interest, is directly or indirectly owned by
such person; and an "affiliate" of a person shall mean, with respect to a person
or entity, any person or entity which directly or indirectly controls, is
controlled by, or is under common control with such person or entity.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the date first set forth above.
COMPANY:
EAGLE TEST SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
EMPLOYEE:
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
