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Exhibit 10.30
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
effective October 1, 1997 by TCC Industries, Inc., a Texas corporation (the
"Employer"), and Xxxxxx Xxxxxxxx , an individual resident in Xxxxxx County,
Texas (the "Executive").
RECITALS
The Employer and the Executive desire the Executive's employment with
the Employer, and the Executive wishes to accept such employment, upon the terms
and conditions set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. Definitions. For the purposes of this Agreement, the following terms
have the meanings specified or referred to in this Section 1.
"AGREEMENT"--this Employment Agreement, as amended from time to time.
"BASIC COMPENSATION"--Salary and Benefits.
"BENEFITS"--as defined in Section 3.2.
"BOARD OF DIRECTORS"--the Board of Directors of the Employer.
"CONFIDENTIAL INFORMATION"--any and all:
(a) trade secrets concerning the business and affairs of the
Employer, planned research and development, customer lists,
confidential information of customers, Proprietary Items (as
defined herein), market studies, business plans, computer
software and programs (including object code and source code),
computer software and database technologies and systems; and
(b) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer containing or based, in
whole or in part, on any information included in the foregoing,
provided, however, that Confidential Information shall not
include any information which: (i) was known by Executive prior
to its disclosure to him by the Employer, (ii) was generally
known or generally available to the public prior to its
disclosure to Executive by the Employer or (iii) becomes
generally known or generally available to the public subsequent
to disclosure to Executive by the Employer through no wrongful
act of the Executive.
"DISABILITY"--as defined in Section 6.2.
"EFFECTIVE DATE"--the date stated in the first paragraph of the
Agreement.
"EMPLOYEE INVENTION"--any idea, technique, modification, business
process, or improvement (whether patentable or not), created, conceived,
or developed by the Executive, either solely or in conjunction with
others, during the Employment Period, or a period that includes a
portion of the Employment Period, that relates in any way to, or is
useful in any manner in, the business then being conducted or proposed
to be conducted by the Employer.
"EMPLOYMENT PERIOD"--the term of the Executive's employment under this
Agreement.
"FISCAL YEAR"--the Employer's fiscal year, as it exists on the Effective
Date or as changed from time to time.
"FOR CAUSE"--as defined in Section 6.3.
"FOR GOOD REASON"--as defined in Section 6.4.
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"PERSON"--any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
joint venture, estate, trust, association, organization, or governmental
body.
"POST-EMPLOYMENT PERIOD"--as defined in Section 8.2.
"PROPRIETARY ITEMS"--as defined in Section 7.2(a)(iv).
"SALARY"--as defined in Section 3.1.
2. Employment Terms and Duties.
2.1 Employment. The Employer hereby employs the Executive, and the
Executive hereby accepts employment by the Employer, upon the terms and
conditions set forth in this Agreement.
2.2 Term. Subject to the provisions of Section 6, the term of the
Executive's employment under this Agreement will be four (4) years
("Initial Term"), beginning on the Effective Date and ending on the
fourth anniversary of the Effective Date; provided, however, that, upon
the expiration of the Initial Term, the term of the Executive's
employment under this Agreement shall be extended for an additional
one-year period, unless either the Executive or the Employee shall give
the other party hereto at least 90 days written notice prior to the
expiration of the Initial Term that the term of the Executive's
employment under this agreement shall not be so extended.
2.3 Duties. The Executive will have such duties as are assigned or
delegated to the Executive by the Board of Directors or Chief Executive
Officer, and will initially serve as President and Secretary of the
Employer. As such, Executive shall have such duties, responsibilities
and authority as may from time to time be reasonably assigned to him by
the Board of Directors and which are appropriate to his office and
title. Except as approved by the Board of Directors or the Chief
Executive Officer of the Company, the Executive will devote his time,
attention, skill, and energy exclusively to the business of the
Employer, will use his best efforts to promote the success of the
Employer's business, and will cooperate fully with the Board of
Directors in the advancement of the best interests of the Employer.
Nothing in this Section 2.3, however, will prevent the Executive from
engaging in additional activities in connection with personal
investments and community affairs that are not inconsistent with the
Executive's duties under this Agreement. If the Executive is elected as
a director of the Employer or as a director or officer of any of its
affiliates, the Executive will fulfill his duties as such director or
officer without additional compensation. In satisfying his obligations
hereunder, Executive will not be required or requested to violate any
applicable law, rule or regulation.
3. Compensation
3.1 Salary. The Executive will be paid an annual salary of $0, subject
to adjustment as provided below (the "Salary"), which will be payable in
equal periodic installments according to the Employer's customary
payroll practices, but no less frequently than monthly. The Salary will
be reviewed by the Board of Directors not less frequently than annually,
and may be adjusted upward or downward in the sole discretion of the
Board of Directors.
3.2 Benefits. The Executive will, during the Employment Period, be
permitted to participate in such pension, profit sharing, bonus, life
insurance, hospitalization, major medical, disability and other employee
benefit plans of the Employer that may be in effect from time to time,
to the extent the Executive is eligible under the terms of those plans
(collectively, the "Benefits").
3.3 Option Plan. The Executive shall participate in that certain TCC
Industries, Inc. 1997 Incentive and Performance Stock Option Plan
adopted by the Employer (the "Option Plan"). The Executive's
participation under the Option Plan shall be in accordance with the plan
and the stock grants to the Executive made thereunder.
4. Facilities and Expenses. The Employer will furnish the Executive office
space, equipment, supplies, and such other facilities and personnel as
the Employer deems necessary or appropriate for the performance of the
Executive's duties under this Agreement. The Employer will pay the
Executive's dues in such professional societies and organizations as the
Chairman of the Board deems appropriate, and will pay on behalf of the
Executive (or reimburse the Executive for) reasonable and necessary
expenses incurred by the Executive at the request of, or on behalf of,
the Employer in the performance of the Executive's duties pursuant to
this Agreement, and in accordance with the Employer's employment
policies, including reasonable expenses incurred by the Executive in
attending conventions, seminars, and other business meetings, in
appropriate business entertainment
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activities, travel expenses and for promotional expenses. All such
expenses are subject to prior authorization and amount limits as may be
required under the Employer's policies. The Executive will file expense
reports with respect to such expenses in accordance with the Employer's
policies.
5. Vacations and Holidays. The Executive will be entitled to paid vacation
each Fiscal Year in accordance with the vacation policies of the
Employer in effect for its executive officers from time to time, which
shall not be less than 10 business days a year. Vacation will be taken
by the Executive at such time or times as approved by the Chairman of
the Board. The Executive will also be entitled to the paid holidays and
other paid leave set forth in the Employer's policies. Vacation days and
holidays during any Fiscal Year that are not used by the Executive
during such Fiscal Year may not be used in any subsequent Fiscal Year.
Upon written notice to Executive, all such vacation and paid leave
policies may be changed at any time by the Employer, as long as such
policies are not applicable solely to Executive. Executive shall be
allowed ten business days a year for sick leave.
6. Termination.
6.1 Events of Termination. The Employment Period, the Executive's Basic
Compensation and any and all other rights of the Executive under this
Agreement or otherwise as an employee of the Employer (except for rights
under the Option Plan that are not subject to divestiture or forfeiture)
will terminate (except as otherwise provided in this Section 6):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in Section
6.2) immediately upon notice from either party to the other;
(c) For Cause (as defined in Section 6.3), upon the notice from
the Employer to the Executive, or at such later time as such
notice may specify; or
(d) For Good Reason (as defined in Section 6.4) upon not less
than thirty days' prior notice from the Executive to the
Employer.
In the event of the occurrence of any cause (as defined in Section 6.3),
at the request of the Board of Directors, the Executive shall
immediately tender his resignation to the Employer offering to resign
all positions with the Company and its subsidiaries, including positions
as an officer, director and any other capacity, and the Employer shall
have the option but not the obligation of accepting such resignation.
If, for any reason, the Executive does not tender such resignation the
Employer may, by notice, terminate the Executive immediately or at such
later time as such notice may specify.
6.2 Definition of Disability. For purposes of Section 6.1, the Executive
will be deemed to have a "disability" if, for physical or mental
reasons, the Executive is unable to perform the essential functions of
the Executive's duties under this Agreement for 120 consecutive days, or
180 days during any twelve-month period, as determined in accordance
with this Section 6.2, it being understood that Executive shall be
entitled to compensation hereunder until he is determined to have a
"disability." The disability of the Executive will be determined by a
medical doctor selected by written agreement of the Employer and the
Executive upon the request of either party by notice to the other. If
the Employer and the Executive cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two
medical doctors will select a third medical doctor who will determine
whether the Executive has a disability. The determination of the medical
doctor selected under this Section 6.2 will be binding on both parties.
The Executive will submit to a reasonable number of examinations by the
medical doctor making the determination of disability under this Section
6.2, and the Executive hereby authorizes the disclosure and release to
the Employer of such determination and all supporting medical records,
provided that Employer agrees to keep such medical information
confidential. If the Executive is not legally competent, the Executive's
legal guardian or duly authorized attorney-in-fact will act in the
Executive's stead, under this Section 6.2, for the purposes of
submitting the Executive to the examinations, and providing the
authorization of disclosure, required under this Section 6.2.
6.3 Definition of "For Cause". For purposes of Section 6.1, the phrase
"For Cause" means:
(a) the Executive's material breach of this Agreement, if such
breach is not cured within ten days after written notice thereof
to Executive by the Employer;
(b) the Executive's failure to adhere to any material written
Employer policy if the Executive has been given a reasonable
opportunity to comply with such policy or cure his failure to
comply (which
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reasonable opportunity must be granted during the ten-day period
preceding termination of this Agreement);
(c) the conviction of, or the entering of a guilty plea or plea
of no contest with respect to, a felony involving moral
turpitude, fraud or dishonesty, or the equivalent thereof, or
any other crime with respect to which imprisonment is a possible
punishment;
(d) the appropriation (or attempted appropriation) of a material
business opportunity of the Employer, including securing any
personal profit in connection with any transaction entered into
on behalf of the Employer;
(e) the misappropriation (or attempted misappropriation) of any
of the Employer's funds or property; or
(f) the conviction of, or the entering of a guilty plea or plea
of no contest with respect to, a felony involving moral
turpitude, fraud or dishonesty, or the equivalent thereof, or
any other crime with respect to which imprisonment is a possible
punishment, as the same relates to his employment with the
Employer.
6.4 Definition of "For Good Reason". For purposes of Section 6.1, the
phrase "For Good Reason" means any of the following:
(a) The Employer's material breach of this Agreement, if such
breach is not cured with ten days after written notice thereof
to Employer by the Executive;
(b) the assignment of the Executive without his consent to a
position, responsibilities, or duties of a materially lesser
status or degree of responsibility than his position,
responsibilities, or duties at the Effective Date;
(c) the relocation of the Employer's principal executive offices
outside the metropolitan Austin, Texas, area;
(d) the requirement by the Employer that the Executive be based
anywhere other than the Employer's principal executive offices,
in either case without the Executive's consent; or
(e) the shareholders of the Employer do not approve and adopt
the Option Plan on or before March 31, 1998.
6.5 Termination Pay.
(a) Effective upon the termination of this Agreement, the
Employer will be obligated to pay the Executive (or, in the
event of his death, his designated beneficiary as defined below)
only such compensation as is provided in this Section 6.5, and
in lieu of all other amounts and in settlement and complete
release of all claims the Executive may have against the
Employer under this Agreement. The Employer may condition the
payment of any compensation provided in this Section 6.5 or
otherwise upon the receipt of a full release of any liabilities
which the Employer may owe to the Executive under this Agreement
or otherwise. Such release shall be in form and substance
acceptable to the Employer. For purposes of this Section 6.5,
the Executive's designated beneficiary will be such individual
beneficiary or trust, located at such address, as the Executive
may designate by notice to the Employer from time to time or, if
the Executive fails to give notice to the Employer of such a
beneficiary, the Executive's estate. Notwithstanding the
preceding sentence, the Employer will have no duty, in any
circumstances, to attempt to open an estate on behalf of the
Executive, to determine whether any beneficiary designated by
the Executive is alive or to ascertain the address of any such
beneficiary, to determine the existence of any trust, to
determine whether any person or entity purporting to act as the
Executive's personal representative (or the trustee of a trust
established by the Executive) is duly authorized to act in that
capacity, or to locate or attempt to locate any beneficiary,
personal representative, or trustee.
(b) If the Executive terminates this Agreement For Good Reason
(except for the reason or as a result of the circumstances
described in Section 6.4(e), above), the Employer will pay to
the
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Executive his Salary through the remainder of the calendar month
during which such termination is effective, and for three
consecutive calendar months thereafter. If the Executive
terminates this Agreement for the reason or as a result of the
circumstances described in Section 6.4(e), above, the Employer
will pay to the Executive his Salary throughout the remainder of
the calendar month during which such termination is effective.
If the Employer terminates this Agreement For Cause, the
Executive will be entitled to receive his Salary only through
the date such termination is effective. If this Agreement is
terminated by either party as a result of the Executive's
disability as determined under Section 6.2, the Employer will
pay the Executive his Salary through the remainder of the
calendar month during which such termination is effective, and
for the lesser of (i) six consecutive months thereafter, or (ii)
the period until disability insurance benefits commence under
the disability insurance coverage, if any, furnished by the
Employer to the Executive. If this Agreement is terminated
because of the Executive's death, the Executive will be entitled
to receive his Salary through the end of the calendar month in
which his death occurs.
(c) The Executive's accrual of, or participation in plans
providing for, the Benefits will cease at the effective date of
the termination of this Agreement, and the Executive will be
entitled to accrued Benefits pursuant to such plans only as
provided in such plans. The Executive will not receive, as part
of his termination pay pursuant to this Section 6, any payment
or other compensation for any vacation, holiday, sick leave, or
other leave unused on the date the notice of termination is
given under this Agreement.
7. Non-disclosure Covenant.
7.1 Acknowledgments by the Executive. The Executive acknowledges that:
(a) during the Employment Period and as a part of his
employment, the Executive will be afforded access to
Confidential Information;
(b) public disclosure of such Confidential Information could
have an adverse effect on the Employer and its business; and
(c) the provisions of this Section 7 are reasonable and
necessary to prevent the improper use or disclosure of
Confidential Information and to provide the Employer with
exclusive ownership of all Employee Inventions.
7.2 Agreements of the Executive. In consideration of the compensation
and benefits to be paid or provided to the Executive by the Employer
under this Agreement, the Executive covenants as follows:
(a) Confidentiality.
(i) During and following the Employment Period, the
Executive will hold in confidence the Confidential
Information and will not disclose it to any person
except with the specific prior written consent of the
Employer or except as otherwise expressly permitted by
the terms of this Agreement.
(ii) Any trade secrets or Confidential Information (as
defined herein) of the Employer will be entitled to all
of the protections and benefits under applicable law. If
any information that the Employer deems to be a trade
secret is found by a court of competent jurisdiction not
to be a trade secret for purposes of this Agreement,
such information will, nevertheless, be considered
Confidential Information for purposes of this Agreement.
The Executive hereby waives any requirement that the
Employer submit proof of the economic value of any trade
secret or post a bond or other security.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that
the Executive demonstrates was or became generally
available to the public other than as a result of a
disclosure by the Executive.
(iv) The Executive will not remove from the Employer's
premises (except to the extent such removal is for
purposes of the performance of the Executive's duties at
home or while traveling, or except as otherwise
specifically authorized by the Employer) any document,
record, notebook, plan, model, component, device, or
computer software or code related to the Business (as
defined herein) of the Employer, whether embodied in a
disk or in any other form (collectively, the
"Proprietary Items"). The Executive recognizes that, as
between the Employer and the Executive, all of the
Proprietary Items, whether or not developed by the
Executive, are the exclusive property of the Employer.
Upon termination of this Agreement by either party, or
upon the request of the Employer during the Employment
Period, the Executive will return to the Employer all of
the Proprietary Items in the Executive's possession or
subject to the
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Executive's control, and the Executive shall not retain any
copies, abstracts, sketches, or other physical embodiment of
any of the Proprietary Items.
(b) Employee Inventions. Each Employee Invention (as defined
herein) will belong exclusively to the Employer. The Executive
acknowledges that all of the Executive's writing, works of
authorship, and other Employee Inventions are works made for
hire and the property of the Employer, including any copyrights
or other intellectual property rights pertaining thereto. If it
is determined that any such works are not works made for hire,
the Executive hereby assigns to the Employer all of the
Executive's right, title, and interest, including all rights of
copyright and other intellectual property rights, to or in such
Employee Inventions. The Executive covenants that he will
promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional
compensation, all of the Executive's right to the Employee
Invention for the United States and all foreign
jurisdictions;
(iii) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request
in order to apply for and obtain patents or other
registrations with respect to any Employee Invention in the
United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance but
without expense to the Executive in support of the
Employer's rights to any Employee Invention.
7.3 Disputes or Controversies. The Executive recognizes that should a
dispute or controversy arising from or relating to this Agreement be
submitted for adjudication to any court, arbitration panel, or other
third party, the preservation of the secrecy of Confidential Information
may be jeopardized. All pleadings, documents, testimony, and records
relating to any such adjudication will be maintained in secrecy and will
be available for inspection by the Employer, the Executive, and their
respective attorneys and experts, who will agree, in advance and in
writing, to receive and maintain all such information in secrecy, except
as may be limited by them in writing.
8. Non-interference.
8.1 Acknowledgments by the Executive. The Executive acknowledges that:
(a) the services to be performed by him under this Agreement are of
a special, unique, unusual and extraordinary character;
(b) the Employer's business ("Business") is to provide merchant
banking, investment banking and wholesale consumer lending services
to institutional entities and is national in scope and its products
are marketed throughout the United States;
(c) the Employer competes with other businesses that are or could be
located in any part of the United States; and
(d) the provisions of this Section 8 are reasonable and necessary to
protect the Employer's business.
8.2 Covenants of the Executive. In consideration of the acknowledgments
by the Executive, and in consideration of the compensation and benefits
to be paid or provided to the Executive by the Employer, the Executive
covenants that he will not, directly or indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, engage or invest in, own, manage, operate,
finance, control, or participate in the ownership, management,
operation, financing, or control of, be employed by, associated
with, or in any manner connected with, lend the Executive's name or
any similar name to, lend Executive's credit to or render services
or advice to, any business whose products or activities compete in
whole or in part with the Business of the Employer anywhere within
the United States;
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(b) whether for the Executive's own account or for the account of
any other person, at any time during the Employment Period and the
Post-Employment Period, solicit business of the same or similar type
as the Business being carried on by the Employer, from any person
known by the Executive to be a customer of the Employer, whether or
not the Executive had personal contact with such person during and
by reason of the Executive's employment with the Employer;
(c) whether for the Executive's own account or the account of any
other person
(i) at any time during the Employment Period and the
Post-Employment Period, solicit, employ, or otherwise engage as
an employee, independent contractor, or otherwise, any person
who is or was an employee of the Employer at any time during the
Employment Period or in any manner induce or attempt to induce
any employee of the Employer to terminate his employment with
the Employer; or
(ii) at any time during the Employment Period and the
Post-Employment Period, interfere with the Employer's
relationship with any person, including any person who at any
time during the Employment Period was an employee, contractor,
supplier, or customer of the Employer; or
(d) at any time during or after the Employment Period, disparage the
Employer or any of its shareholders, directors, officers, employees,
or agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means the one-year period beginning on the date of termination of the
Executive's employment with the Employer.
If any covenant in this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to
be divisible with respect to scope, time, and geographic area, and such
lesser scope, time, or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary,
and not against public policy, will be effective, binding, and
enforceable against the Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the duration of any violation by the Executive of such
covenant.
The Executive will, while the covenant under this Section 8.2 is in
effect, give notice to the Employer, within ten days after accepting any
other employment, of the identity of the Executive's employer. The
Employer may notify such employer that the Executive is bound by this
Agreement and, at the Employer's election, furnish such employer with a
copy of this Agreement or relevant portions thereof.
Employer covenants that at any time during or after the Employment
Period it will not disparage the Executive.
9. General Provisions.
9.1 Injunctive Relief and Additional Remedy. The Executive acknowledges
that the injury that would be suffered by the Employer as a result of a
breach of the provisions of this Agreement (including any provision of
Sections 7 and 8) would be irreparable and that an award of monetary
damages to the Employer for such a breach would be an inadequate remedy.
Consequently, the Employer will have the right, after the Executive has
been given 10 days to comply with Section 7 and 8 so as to cure his
failure to comply, in addition to any other rights it may have, to
obtain injunctive relief to restrain any breach or threatened breach or
otherwise to specifically enforce any provision of this Agreement, and
the Employer will not be obligated to post bond or other security in
seeking such relief.
9.2 Covenants of Sections 7 and 8 Are Essential and Independent
Covenants. The covenants by the Executive in Sections 7 and 8 are
essential elements of this Agreement, and without the Executive's
agreement to comply with such covenants, the Employer would not have
entered into this Agreement or employed or continued the employment of
the Executive. The Employer and the Executive have independently
consulted their respective counsel regarding such covenants.
The Executive's covenants in Sections 7 and 8 are independent covenants
and the existence of any claim by the Executive against the Employer
under this Agreement or otherwise, or against the Buyer, will not excuse
the Executive's breach of any covenant in Section 7 or 8; provided,
however, that Executive's covenants in Section 7 and 8 shall terminate
if there is a termination for good reason as set forth in Section 6.4
hereof.
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If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or
appropriate to enforce the covenants and agreements of the Executive in
Sections 7 and 8, except as noted above.
9.3 Offset. The Employer will be entitled to offset against any and all
amounts owing to the Executive under this Agreement the amount of any
and all claims that the Employer may have against the Executive under
the terms of this Agreement.
9.4 Liability Insurance. The Employer shall use reasonable efforts to
secure and maintain a director's and officer's liability policy in an
amount of at least $5,000,000 with Executive being named as an assured
thereunder and Executive being covered thereby in respect of certain
claims arising from duties carried out by Executive.
9.5 Representations and Warranties by the Executive. The Executive
represents and warrants to the Employer that the execution and delivery
by the Executive of this Agreement do not, and the performance by the
Executive of the Executive's obligations hereunder will not, with or
without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to the Executive; or (b)
conflict with, result in the breach of any provisions of or the
termination of, or constitute a default under, any agreement to which
the Executive is a party or by which the Executive is or may be bound.
9.6 Obligations Contingent on Performance. The obligations of the
Employer hereunder, including its obligation to pay the compensation
provided for herein, are contingent upon the Executive's performance of
the Executive's obligations hereunder.
9.7 Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by
either party in exercising any right, power, or privilege under this
Agreement will operate as a waiver of such right, power, or privilege,
and no single or partial exercise of any such right, power, or privilege
will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege.
To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by
the other party;
(b) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the
party giving such notice or demand to take further action
without notice or demand as provided in this Agreement.
9.8 Binding Effect; Delegation of Duties Prohibited. This Agreement
shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which the Employer may merge
or consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this
Agreement, being personal, may not be delegated.
9.9 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been
duly given when
(a) delivered by hand (with written confirmation of receipt),
(b) sent by facsimile (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return
receipt requested, or
(c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in
each case to the appropriate addresses and facsimile numbers set
forth below (or to such other addresses and facsimile numbers as
a party may designate by notice to the other parties):
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If to Employer: TCC Industries, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
If to the Executive: Xxxxxx Xxxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxx, XX 00000
9.10 Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof
(except the Option Plan) and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect
to the subject matter hereof. This Agreement may not be amended orally,
but only by an agreement in writing signed by the parties hereto.
9.11 Governing Law. This Agreement will be governed by the laws of the
State of Texas without regard to conflicts of laws principles.
9.12 Arbitration. In the event that any dispute, disagreement or
controversy (collectively, a "Dispute") arises with respect to the
interpretation, performance, non-performance or termination of this
Agreement, the parties shall first attempt to settle such Dispute by
good faith negotiations between the parties. If the Dispute is not
resolved within 30 days of the date one party sends a notice to the
other party describing the Dispute and requesting good faith
negotiations to resolve the Dispute under this Section, the Dispute
shall be resolved by binding arbitration carried out in Austin, Texas in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association as then in effect. The party which intends to
initiate an arbitration proceeding hereunder shall notify the other
party of such intention in writing, describing the Dispute.
Notwithstanding the above, in any Dispute arbitrated hereunder, the fees
and expenses of the arbitrator(s) and attorneys' fees and costs of the
party ultimately prevailing in such Dispute shall be borne by the other
party.
9.13 Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may
be brought against either of the parties in the courts of the State of
Texas, County of Xxxxxx, or, if it has or can acquire jurisdiction, in
the United States District Court for the Western District of Texas, and
each of the parties consents to the jurisdiction of such courts (and of
the appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Process in any action or
proceeding referred to in the preceding sentence may be served on either
party anywhere in the world.
9.14 Section Headings, Construction. The headings of Sections in this
Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or
"Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement
will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does
not limit the preceding words or terms.
9.15 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part
or degree will remain in full force and effect to the extent not held
invalid or unenforceable.
9.16 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of
this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement.
9.17 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL
IN ANY LITIGATION WITH RESPECT TO ENFORCING THE PROVISIONS OF SECTION
9.12 ABOVE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT.
9.18 Release of Executive on Failure of Option Plan. In the event the
Executive terminates the Agreement for the reason or as a result of the
circumstances described in Section 6.4(e), above, Employer hereby
releases, acquits and discharges Executive (together with his heirs,
executors, administrators, assigns, legal representatives and attorneys)
from all matters, causes of action, accounts, suits, controversies,
agreements, damages, claims and demands, whether heretofore or hereafter
accruing, whether now known or not known to the parties prior to and
including the date hereof, in any way directly or indirectly arising out
of or in connection with the business or operations of the Employer,
this Agreement, the Option Plan and any related documents and any
transactions or
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dealings between the parties hereto, it being the intent of the Employer
to fully and completely discharge Executive (together with his heirs,
executors, administrators, assigns, legal representatives and attorneys)
from any and all liabilities related to or arising from all prior
relationships, instruments and courses of dealing, except that the
parties shall continue to be bound by the obligations described in this
Agreement that are to survive its termination.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EMPLOYER: TCC INDUSTRIES, INC.
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Xxxxxx X. XxXxxxx, Chairman
EXECUTIVE:
/s/ XXXXXX XXXXXXXX
----------------------------
Xxxxxx Xxxxxxxx, President
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