EXHIBIT 10.5
EMPLOYMENT AGREEMENT - XXXX XXXXXX
This Agreement, made effective as of November 30, 2004, entered
into by and between Integrated Performance Systems, Inc., a New York
corporation (the "Company"), and Xxxx Xxxxxx (the "Employee").
WHEREAS, Employee is currently serving the Company under a
management consulting agreement, with powers generally associated with the
Chief Executive Officer position ; and
WHEREAS, the Company desires to employ the Employee as its
Chairman, CEO and President in accordance with the following terms,
conditions and provisions; and
WHEREAS, the Employee desires to perform such services for the
Company, all in accordance with the following terms, conditions and
provisions; and
WHEREAS, at some time the Employee may contemplate retiring, with
the approval of the Company's Board of Directors (the "Board"), upon the
completion of his services under this Agreement, whether at the end of the
term hereof or at the end of or during any extension term hereof, and
the parties wish to set forth an agreement relating to such an approved
retirement;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed as follows:
1. EMPLOYMENT AND DUTIES.
The Company hereby employs Employee, and Employee hereby accepts and
agrees to serve the Company as the Company's CEO and President,
consistent with the job description for this position, and with duties
subject to review and modification from time to time at the direction of
the Company's Board. The Employee shall also function as Chairman of the
Board, subject to election by the Company's Board. The Employee shall
remain a member of the Company's Board of Directors, subject to election
by the shareholders of the Company. The Employee shall apply his best
efforts and devote substantially all of his working time and attention
to the Company's affairs.
2. TERM.
The term of this Agreement and Employee's employment under this
Agreement shall commence on December 1, 2004, and shall continue
thereafter for a period of three years. Upon the expiration of the
original term of this Agreement, this Agreement shall automatically
renew for successive two-year terms, subject to termination as provided
in Section 7 below.
During the term of this Agreement, including any extension term thereof,
the Employee or the Board may initiate discussions regarding Employee's
retirement from his position as President and CEO of the Company. When
either party wishes to discuss Employee's retirement, they shall provide
sufficient advance notice to the other party so as to accommodate both
Employee's and the Company's requirements for planning and transition.
In any event, Employee shall give the Board at least 60 days advance
notice of a date on which Employee would like to retire. In discussions
regarding Employee's retirement, Employee and the Board shall discuss
and attempt to agree upon various matters relating to Employee's
retirement, including transition arrangements for the benefit of
Employee and the Company, consulting or other services, if any, from the
Employee after retirement, and the proposed date for Employee's
retirement. This date shall be established so as to facilitate
transition to a new President and CEO at the Company. (Hereinafter,
Employee's retirement that has been agreed upon by the Board and
Employee is referred to as the "Retirement", and the date which has been
agreed upon by the Company and Employee for his Retirement is referred
to as the "Retirement Date").
At Employee's Retirement on his Retirement Date, Employee shall resign
as Chairman of the Board, and also resign from the Board if requested by
the Board. Should Employee continue to serve on the Board after his
Retirement Date, Employee shall thereafter be treated as an outside
director on the Board, including for purposes of Board fees, options and
other benefits paid to outside directors. In addition, Employee shall
serve as a consultant to the Company during the Consulting Period, as
defined in Section 16 below.
3. COMPENSATION.
The Company shall compensate the Employee for his services as an
employee hereunder at the following salary, bonus, and benefits:
A. Base Salary.
The Employee shall be paid a base salary of $500,000 per year,
payable on the Company's normal payroll cycle. This base salary is
the minimum salary during the term of this Agreement, and may be
increased from time to time at the discretion of the Board.
Employee shall receive an annual performance review, and, contingent
upon satisfactory review results, shall be eligible for increase of
such base salary at the direction of the Board.
B. Bonus.
The Employee shall participate in a Company Management Incentive
Plan, as approved and amended by the Board from time to time, and
which is designed to deliver an annual bonus consistent with current
levels established for this position by the Board. Employee shall
periodically meet with the Board to establish quantitative and
qualitative initiatives and objectives for the purpose of assessing
the amount of bonus to be paid to Employee at the end of the
associated bonus period. Target annual bonus for satisfactory
performance shall be 60% of base salary. Amount payable to be
determined by Board based on Company and personal performance
criteria established by the Board. Bonus payable may range from 0%
to 150% of target amount (i.e., maximum bonus shall be 90% of base
salary), depending on actual performance.
C. Stock Options.
The Employee shall be eligible to participate in the annual grant of
the Company's Stock Option Plan, consistent with its terms and
conditions, and with amounts of options, including exercise price
and vesting provisions determined by the Board from time to time.
Provisions under this item 3C, stock options, are also subject to
the provisions found in Section 7, under Termination of Agreement.
In the case of all options granted during the term of this Agreement
(including any extension terms), the options shall include
provisions that, if Employee and the Company have agreed upon a
Retirement Date, then (i) during the Consulting Period the options
shall continue to vest at the same rate at which they were vesting
during the period of Employee's employment hereunder; and (ii) all
such options shall vest and become fully exercisable upon Employee's
completion of his consulting services at the end of the Consulting
Period.
D. Employee Benefits Plans.
The Employee shall be entitled to participate in any and all Company
employee benefit plans, in accordance with the eligibility
requirements and other terms and provisions of such plan or plans.
E. Insurance.
The Employee agrees that the Company, at the discretion of its
Board, may apply for and procure on its own behalf, life insurance
on the life of the Employee, for the purpose of protecting the
Company against loss caused by the death of the Employee (commonly
referred to as "Key" insurance). Employee agrees to cooperate and
submit to medical examinations, and to execute or deliver any
documentation reasonably required by the Company's insurer in order
to effectuate such insurance.
4. VACATIONS AND TIME OFF.
The Employee shall be entitled to four weeks of paid vacation in each
year of employment under the terms of this Agreement, without reduction
of salary. Unused vacation time may be carried over to future years of
employment, consistent with Company policy affecting use by executive
employees of employee vacation time. In addition, Employee shall be
entitled to such additional time off from work, without loss of
compensation, for attendance at professional meetings, conventions,
approved "other business activities", as per Section 14, and educational
courses in accordance with the Company's general policies in this
regard, and as from time to time determined by its Board.
5. EXPENSES.
The Company will reimburse Employee for reasonable expenses incurred by
the Employee in connection with the business of the Company, according
to policies promulgated from time to time by the Board, and upon
presentation by Employee of appropriate substantiation for such
expenses. Further, the Company will allow Employee to travel business
class, by air, and reimburse Employee's initiation fee and monthly dues
for country club or private club membership of his choosing. Also, the
Company will provide reimbursement for tax/financial planning assistance
and preparation, up to $5,000 per year, as well as for supplemental
medical examinations. During the term of this Agreement, Employee shall
receive an automobile allowance of $1,000 per month.
6. DISABILITY.
For purposes of this Section 6, "Disability Leave of Absence" shall mean
the period during which Employee is disabled prior to termination of his
employment under the terms of this Agreement. The Company agrees that,
if Employee's employment is terminated during a Disability Leave of
Absence, Employee may continue to receive Employer's group insurance
health plan coverage by compliance with and as provided under the
provisions of the Consolidated Omnibus Budget Reconciliation Act
("COBRA").
For purposes of this Agreement, Employee shall be considered to be
totally disabled when he is considered to be as such by any insurance
company used by the Company to provide disability benefits for the
Employee, and Employee shall continue to be considered totally disabled
until such insurance company ceases to recognize him as totally disabled
for purposes of disability benefits. If no such disability policies are
in effect for the benefit of the Employee or for any reason an insurance
company fails to make a determination of the question of whether
Employee is totally disabled, Employee shall be considered to be totally
disabled if, because of mental or physical illness or other cause, he is
unable to perform the majority of his usual duties on behalf of the
Company. The existence of a total disability of the Employee, the date
it commenced, and the date it ceases, shall be determined by the Board
and the Employee, under these circumstances. If the parties cannot agree
on the foregoing questions of disability, then any such determination
shall be made after examination of Employee by medical doctor selected
by the Board, and a medical doctor selected by the Employee. If the
medical doctors so selected cannot agree on the foregoing questions of
disability, a third medical doctor shall be selected by the two and the
opinion of a majority of all three shall be binding.
7. TERMINATION.
A. The employment of Employee by the Company under this Agreement shall
terminate upon the occurrence of any of the following:
1. Mutual agreement, in writing, of the parties to terminate.
2. Employee's death.
3. Upon the expiration of the initial or any renewal term of this
Agreement, following written notice at least 90 days prior to the
date on which renewal would otherwise occur, by one party to the
other indicating such party's intention not to renew.
4. At the Company's option, if Employee shall be totally disabled,
as defined above for a continuous period in excess of nine months.
The Company's option to terminate in such event shall be exercised
upon at least 30 days prior written notice to Employee.
5. Termination by the Company for cause. For purpose of this
provision of this Agreement, "cause" shall be defined as:
a. Willful failure of the Employee to substantially perform any
duties reasonably required by the Company that are consistent with
Employee's position (except as a result of any disabling injury,
for which Employee has been receiving benefits under a short term
or long term disability program), and which is not remedied
promptly by Employee after receipt of written notice to Employee
of such failure from the Company; or
b. The commission by Employee of any act of fraud or dishonesty
which has a direct, substantial and adverse affect on the Company,
and which is related to or in connection with his Employment by
the Company; or
c. The commission by Employee of any criminal act which is
punishable by sentence exceeding 90 days; or
d. Employee materially breaches Employee's other covenants
contained in this Agreement, and fails to cure such breach
promptly after written notice thereof to Employee from the
Company.
6. Termination by Employee with Good Reason. "Good Reason"
includes any of the following:
a. Company's assignment to Employee of duties inconsistent
with Employee's position;
b. Other action by the Company that results in the material
diminution of Employee's position, authority, duties or
responsibilities;
c. Breach of this Employment Agreement by the Company
(including, but not limited to, reduction in Employee's
salary, bonus, long-term compensation, retirement benefits or
welfare benefits);
d. Requirement that Employee maintain his home or principal
place of business outside the Dallas metropolitan area;
e. Requirement that Employee travel on business to a
substantially greater extent than he has in the past twelve
(12) months;
f. Failure to assign this Employment Agreement to a
successor employer.
B. Termination Payments.
1. In the event that (i) Employee's employment with
the Company is terminated without cause, or (ii) Employee
terminates for Good Reason, or (iii) the Company delivers notice
of non-renewal of this Agreement for any renewal term, then:
a. Employee shall receive regular pay through date of
termination, including pro-rated earned for the partial year,
if any.
b. Employee shall receive payment equal to twenty-four (24)
months of Employee's then current annualized salary; payable
monthly, plus an annual amount equal to the average of any
bonus or incentive compensation paid or payable for the most
recent two full years payable monthly; and all unvested stock
options held by Employee shall immediately vest.
c. Employee shall be entitled to continue participation in
the healthcare coverage, life insurance and general employee
benefit plans of the Company. The Company shall for two years
following the effective date of the termination under this
Section 7.B., or until Employee becomes eligible for such
insurance coverage with another employer, continue to provide
such coverage for Employee and his dependents to the same
extent and cost the Company is then providing for other
employees with comparable coverage during this two year
period.
2. Termination by Company Without Cause or by Employee With Good
Reason--Within Two Years After a Change in Control. For
purposes of this provision, a change in control will be defined
as follows:
a. When, subsequent to the effective date of this Agreement,
any "person" as defined in Section 3(a)(9) of the Securities
Exchange Act as used in sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d) of the
Securities Exchange Act, but excluding the Company or any
subsidiary or parent or any employee benefit plan sponsored
or maintained by the Company or any subsidiary or parent
(including any trustee of such plan acting as trustee), or
indirectly, becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act, as amended from
time to time), of securities of the Company representing
greater than 50 (fifty) percent of the combined voting power
the Company's then outstanding securities; or
b. When, subsequent to the effective date of this agreement,
the individuals who, at the end of such period, constitute
the Board ("Incumbent Directors") cease for any reason other
than death to constitute at least a majority thereof;
provided however that a Director who was not a Director at
the beginning of this period will be deemed to have satisfied
the definition of "Incumbent Director" if such Director was
elected by, or with the approval of, at least 60% (sixty
percent) of the Directors who then qualified as Incumbent
Directors; or
c. Any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company or the
approval by the shareholders of the Company of any such
transaction, whichever first occurs, or the adoption of any
plan or proposal for the liquidation or dissolution of the
Company.
If, contemporaneously with any such change in control, or
during a two year period subsequent to a change in control,
Employee is terminated without cause, or Employee terminates
for Good Reason, the Company shall (i) pay Employee regular
pay through the date of termination, including pro-rated
bonus for partial year; (ii) pay Employee a lump sum payment
equal to (A) 36 months of Employee's then current annualized
salary, plus (B) the aggregate annual bonus compensation paid
for preceding three full years or three times the target
bonus for the year of termination, whichever is greater;
(iii) vest all outstanding stock options; and (iv) provide
continued participation in medical, dental, life and
disability insurance benefits at same premium cost in effect
for active employees for two years.
3. Termination by Company With Cause. Upon termination of the
Employee by the Company with cause, regular pay will continue
through the date of termination, including pro-rated bonus for
the partial year.
4. Termination by Employee Without Good Reason. Upon termination
by the Employee without good reason, regular pay will continue
through the date of termination, including pro-rated bonus for
the partial year.
5. Termination by reason of death or disability. Upon
termination due to Employee's death, or upon termination by the
Company under Section 7.A.4. due to Employee's disability, then:
a. Employee (or his designated beneficiaries in the case of
death) shall receive regular pay through the date of
termination, including pro-rated bonus earned for the partial
year, if any.
b. Employee (or his designated beneficiaries in the case of
death) shall receive termination payments in the amount of
one year base salary.
c. All unvested stock options held by Employee shall
immediately vest.
d. Employee (or his dependents, in the case of death) may
continue to receive insurance coverage under the provisions
of COBRA for the period of time prescribed thereby, upon
payment of the cost thereof.
8. PAYMENT OF "PARACHUTE" TAX.
Company agrees to pay to Employee an amount sufficient (after taking
into account any such tax on such payment) to restore the full amount
payable under the other terms of this Employment Agreement, after
application of excise tax on excess Parachute payments within the
meaning of Code Section 280(g), including the excise tax, penalties and
interest.
9. HEALTH BENEFITS AFTER RETIREMENT.
Commencing upon Employee's Retirement, for a period of 24 months, the
Company shall pay Employee each month an amount equal to $1000.00
indexed to adjust for inflation on an annual basis each December 1, with
December 1, 2004, as the base date. These amounts may be used by
Employee to purchase an individual health insurance policy or policies
for himself and his spouse or other dependents, and to pay for other
health and medical benefits.
10. OUTPLACEMENT ASSISTANCE.
Upon termination of employment without cause, with Good Reason by
Employee, or after a change-in control as provided above, the Company
will pay for outplacement assistance to assist Employee in job
transition process. The Company will select the service provider to be
used for this purpose.
11. PAYMENT OF LEGAL FEES.
Subject to a total expenditure of up to $15,000 maximum, the Company
agrees to pay all reasonable legal fees incurred by Employee in
connection with the drafting and negotiation of this Employment
Agreement and any amendments thereto.
12. COVENANT NOT TO COMPETE.
For purposes of this Section 12, the "Termination Date" will mean the
date of Employee's termination of employment under this Agreement,
except that if Employee performs consulting services pursuant to Section
16 hereof, then, in such event, the "Termination Date" shall mean the
last day of the Consulting Period.
Employee hereby covenants and agrees that during the initial and any
renewal term of employment under this Agreement, during the Consulting
Period, if applicable, and for a period of one year following the
Termination Date (the "Term"), Employee shall not be engaged within the
United States, either directly or indirectly, in any manner or capacity,
whether as an advisor, principal, agent, partner, officer, director,
employee, member of an association, or otherwise, in any business or
activity which is competitive with the business being conducted by the
Company or its subsidiaries or affiliates on the Termination Date (a
"Competitive Business"), or own beneficially or of record, five percent
or more of the outstanding stock of any class of equity securities in
any corporation, other business entity or business engaged in a
Competitive Business.
In addition, during the Term, Employee shall not solicit, directly or
indirectly, any then current employee of the Company for employment or
engagement in any capacity outside of the Company, its subsidiaries or
affiliates, or solicit any customers of the Company to change or reduce
in any way the amount of business that they do with the Company or to do
business with a competitor of the Company, its subsidiaries or
affiliates.
At the option of the Board, the Company may choose to extend the Term
for a period of up to an additional twelve months. In consideration for
such election, the Company agrees to make payment to the Employee for
such extension the annualized salary and bonus equal to that in effect
at the time of termination of Employee's employment.
If Employee should breach the foregoing covenants, the Company may seek
injunctive relief to enforce the covenants as well as remedies at law.
In addition, all payments described in Xxxxxxx 0, Xxxxxxxxxxx, all
payments for health benefits pursuant to Section 9 and all payments for
Consulting Services pursuant to Section 16 shall cease. In addition the
remaining unexercised stock options shall immediately be cancelled and
the benefit plan provisions described in Section 7, Termination, shall
be immediately discontinued except to the extent required by the
provisions of COBRA.
13. CONFIDENTIALITY.
Employee will, in the course of his employment with the Company and in
the course of the provision of any consulting services to the Company
during the Consulting Period, if applicable, have access to confidential
and proprietary data or information belonging to the Company. Employee
will not at any time divulge or communicate to any person (other than to
a person bound by confidentiality obligations to the Company similar to
those contained in this Agreement) or use to the detriment of the
Company, or for the benefit of any other person such data or
information. The provisions of this section shall survive Employee's
employment hereunder regardless of the cause of termination of
employment or this Agreement. The phrase "confidential or proprietary
data or information" shall mean information not generally available to
the public, including, but not limited to, personnel information,
financial information, customer lists, supplier lists, trade secrets,
secret processes, computer data and programs, pricing, marketing and
advertising data. Employee acknowledges and agrees that any confidential
or proprietary information that Employee has already acquired was in
fact received in confidence in Employee's fiduciary capacity with
respect to the Company.
All written materials, records and documents made by Employer or coming
into Employee's possession during the term of employment or during the
provision of consulting services by Employee in the course of providing
such services, concerning any product, processes, information or
services used, developed, investigated or considered by the Company, or
otherwise concerning the business or affairs of the Company, shall be
the sole property of the Company and upon termination of Employee's
employment for any reason, or upon request of the Board during
Employee's employment, Employee shall promptly deliver the same to the
Company. In addition, upon termination of Employee's employment for any
reason, or upon request of the Board during Employee's employment,
Employee shall deliver to the Company all of the property of the Company
in Employee's possession or under Employee's control, including, but not
limited to, financial statements, marketing and sales data, computers,
and Company credit cards.
14. OTHER BUSINESS ACTIVITIES.
Employee shall not serve as an officer of another company, whether for
compensation or otherwise, requiring more than nominal duties by the
Employee, during the term of his employment under this Agreement without
the express prior written consent of the Board. During the term of his
employment under this Agreement, Employee may not serve as a Director of
any other organizations without express prior written approval by the
Board, such approval not to be unreasonably withheld. In any event, the
activities of Employee specified on Exhibit A attached hereto are hereby
deemed to be approved and consented to.
15. INVENTIONS AND PATENTS.
During the period of his employment hereunder, Employee agrees to assign
all rights, ownership and related privileges and benefits associated
with inventions and patents to the Company. Employee agrees that any
inventions or patents obtained in association with ideas or concepts
initiated by Employee during his employment hereunder related to the
Company's business are deemed to be Company property. This includes but
is not limited to product ideas, changes or improvements; process ideas,
changes or improvements; pertinent intellectual property, or other
pertinent information.
16. CONSULTING SERVICES.
During the two-year period commencing upon Employee's Retirement Date
(the "Consulting Period"), the Employee shall provide consulting
services to the Company and to the Board on an as needed basis, subject
to the other provisions of this section. Employee shall render such
services as an independent contractor and not as an employee. While
serving as a consultant, Employee shall not have any authority to bind
or act on behalf of the Company or any of its subsidiaries.
Employee shall render such consulting services to the Company or the
Board in connection with the business of the Company and its
subsidiaries as the Company or the Board from time to time requests.
However, Consultant shall not be required to provide consulting services
more than five business days per calendar month (pro-rated in the case
of partial months). In general, such services may be provided
telephonically or by other off-site means, provided that the Company may
require that the Employee provide up to three (3) days of such services
per month at the Company's premises. The provision of consulting
services by Employee shall be scheduled on a reasonable basis by
Employee and the Company. In this connection, the Company acknowledges
that during the Consulting Period the Employee may have other
obligations and commitments.
In consideration of Employee's provision of consulting services during
the Consulting Period, the Company shall pay the Employee, for each year
included in the Consulting Period an amount equal to one-half of the
annual base salary payable to Employee in the year of his Retirement.
Said amount shall be payable in monthly installments or in accordance
with the Company's normal payroll cycle, as determined by the Company.
In addition, at the end of the first year in the Consulting Period, the
Company shall pay to Employee an amount equal to the average of the last
two full year bonuses paid to Employee with respect to his employment
prior to the Retirement Date, multiplied by one-half. In addition, the
Company shall continue to provide all the benefits which were provided
to Employee during the last year of his employment, subject to the
understandings that (i) such benefits may be changed in a manner
consistent with changes the Company makes to its benefits in general,
(ii) in lieu of providing health coverage, the Company will make the
payments described in Section 9 hereof, and (iii) no stock options will
be granted to Employee in return for his consulting services (it being
understood that Employee may receive options if he continues to serve as
a director of the Company, for his services in that capacity). In
addition, the Company shall reimburse the Employee for reasonable
expenses incurred by him in the course of performing the consulting
services subject to the Company's reasonable requirements with respect
to reporting and documentation of such expenses. The compensation
provided hereunder shall be payable to Employee regardless of whether or
not the Company requires consulting services from Employee during any
particular month.
17. MEDIATION.
The Company and the Employee agree that prior to commencing any legal
action arising out of a dispute over provisions in this Agreement, the
parties shall first negotiate for a period of not less than 30 days in
an effort to resolve the dispute. If these efforts are not successful,
then the parties shall submit to non-binding mediation conducted by an
independent third-party mediator in an effort to resolve the dispute,
provided that such mediation must be completed with in 60 days after the
date on which it commences. Thereafter, if the dispute remains
unresolved, either party may commence legal action to resolve the
dispute, it being understood that, if mutually agreed, the parties may
instead elect to submit the dispute to binding arbitration.
18. COOPERATION IN CLAIMS.
Both during employment and post employment, Employee agrees that in the
event of a legal action against the Company, or legal action initiated
by the Company against another party, in which Employee is deemed by the
Company to be a material witness or affiant, Employee agrees to make
reasonable and best efforts to cooperate with the Company in such
matters. If Employee is no longer employed, Company will reimburse
Employee for time and expenses incurred as a result of cooperation for
this purpose.
19. INDEMNIFICATION.
During and after termination of Employee's employment under this
Employment Agreement, the Company shall indemnify and hold harmless the
Employee from liability incurred as a result of performance of his
duties as an Officer and member of the Board, and as a consultant, if
applicable, to the fullest extent permitted under Texas law. In addition
the Company shall use reasonable efforts to secure coverage for Employee
under appropriate D&O insurance policies, to the extent available at
reasonable cost with appropriate coverage.
20. NOTICES.
All notices, requests, demands and other communications provided for by
this Agreement shall be in writing and shall be deemed to have been
given when mailed at any general or branch United States Post Office
enclosed in a certified postpaid envelope, return receipt requested, and
addressed to the address of the respective party stated below or to such
changed address as the party may have fixed by notice:
If to the Employee:
Xxxx Xxxxxx
If to the Company:
Corporate Counsel:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxxxx Xx.
Xxxxxxx, Xxxxx 00000
Any notice of change of address shall only be effective, however, when
received.
21. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of, and be binding upon, the
Company, its successors and assigns, including, without limitation, any
corporation which may acquire all or substantially all of the Company's
assets and business or into which the Company may be consolidated or
merged, and the Employee, his heirs, executors, administrators and legal
representatives. Then Employee may assign his right to payment, but not
his obligations, under this Agreement.
22. APPLICABLE LAW.
This Agreement shall be governed, enforced and construed under the laws
of the State of Texas.
23. OTHER AGREEMENTS.
This Agreement supersedes all prior understandings and agreements
between the parties. It may not be amended orally, but only by a
writing signed by the parties hereto.
24. NON-WAIVER.
No delay or failure by either party in exercising any right under this
Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right.
25. HEADINGS.
Headings in this Agreement are for convenience only and shall not be
used to interpret or construe its provisions.
26. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
INTEGRATED PERFORMANCE SYSTEMS, INC.
By
/s/ Xxxx Xxxxxx
--------------------------------------
Its: CEO
AND
/s/ Xxxx X. Xxxxxx
--------------------------------------
Its: CFO
EMPLOYEE
/s/ Xxxx Xxxxxx
--------------------------------------
Xxxx Xxxxxx
