EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made as of the 30th day of
April, 1997, by and between CADDX-CADDI CONTROLS, INC., a Texas corporation (the
"EMPLOYER"), and XXX XXXXX, an individual resident in Texas (the "EXECUTIVE").
RECITALS
Concurrently with the execution and delivery of this Agreement, ITI
TECHNOLOGIES, INC., a Delaware corporation (the "BUYER"), is purchasing from the
Executive, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxxx and Xxxxxxx Xxxx Xxxxx (each a
"SELLER," collectively, the "SELLERS"), all of the issued shares of stock of the
Employer, pursuant to that certain Stock Purchase and Sale Agreement dated April
4, 1997, between the Sellers and the Buyer (the "STOCK PURCHASE Agreement"). The
Buyer and the Employer desire the Executive's continued employment with the
Employer, and the Executive wishes to accept such continued 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(a)(ii).
"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,
product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples,
inventions and ideas, past, current, and planned research and
development, current and planned manufacturing or distribution methods
and processes, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer
software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries, concepts,
ideas, designs, methods and information),
and any other information, however documented, that is a trade secret
within the meaning of Texas common law;
(b) information concerning the business and affairs of the Employer
(which includes historical financial statements, financial projections
and budgets, historical and projected sales, capital spending budgets
and plans, the names and backgrounds of key personnel, personnel
training, techniques and materials, however documented); and
(c) notes, analyses, 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.
"DISABILITY"--as defined in SECTION 6(b).
"EFFECTIVE DATE"--the date stated in the first paragraph of this Agreement.
"EMPLOYEE INVENTION"--any idea, invention, technique, modification, process, or
improvement (whether patentable or not), any industrial design (whether
registrable or not), and any mask work, however fixed or encoded, that is
suitable to be fixed, embedded or programmed in a semiconductor product (whether
recordable 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, and any such item created by the Executive, either
solely or in conjunction with others, following termination of the Executive's
employment with the Employer, that is based materially upon or uses Confidential
Information to any material degree.
"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(c).
"FOR GOOD REASON"--as defined in SECTION 6(d).
"INCENTIVE COMPENSATION"--as defined in Section 3(b).
"NONCOMPETITION AGREEMENT"--as defined in Section 6(c).
"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.
"PROPRIETARY ITEMS"--as defined in SECTION 7(b)(i)(4).
"SALARY"--as defined in SECTION 3(a)(i).
2. EMPLOYMENT TERMS AND DUTIES
(a) 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.
(b) Term. Subject to the provisions of SECTION 6, the term of the
Executive's employment under this Agreement will be one (1) year,
beginning on the Effective Date and ending on the first anniversary of
the Effective Date.
(c) Duties. The Executive will have such duties as are assigned or
delegated to the Executive by the Board of Directors or the Chief
Executive Officer, and will initially serve as President and CEO of the
Employer. The Executive will devote his entire business 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(c), 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.
3. COMPENSATION
(a) Basic Compensation.
(i) Salary. The Executive will be paid an annual salary of One
Hundred Seventy-Five Thousand and no/100 Dollars ($175,000),
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. Subsequent to the term of employment
set forth in SECTION 2(b), 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, but in no event will the Salary be less
than One Hundred Seventy-Five Thousand and no/100 Dollars
($175,000) per year.
(ii) Benefits. During the Employment Period and so long as the
Executive is employed by the Employer, the Executive will be
permitted to participate in such pension, profit sharing,
bonus, life insurance, hospitalization, major medical, 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").
(b) Incentive Compensation. As additional compensation for the
services to be rendered by the Executive pursuant to this
Agreement (the "INCENTIVE COMPENSATION"), the Executive shall
be eligible for discretionary bonus compensation in such
amounts as determined from time to time by the Board of
Directors.
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 on behalf of the Executive (or reimburse the Executive
for) reasonable 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 activities, and for promotional expenses. The Executive must 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 in accordance with the vacation
policies of the Employer in effect for its executive officers from time to time.
Vacation must be taken by the Executive at such time or times as approved by the
Chairman of the Board or the Chief Executive Officer. 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.
6. TERMINATION
(a) Events of Termination. The Employment Period, the Executive's Basic
Compensation and Incentive Compensation, and any and all other rights
of the Executive under this Agreement or otherwise as an employee of
the Employer, will terminate (except as otherwise provided in this
SECTION 6):
(i) upon the death of the Executive;
(ii) upon the disability of the Executive (as defined in
SECTION 6(b)) immediately upon notice from either party to the
other;
(iii) for cause (as defined in SECTION 6(c)) immediately upon
notice from the Employer to the Executive, or at such later
time as such notice may specify; or
(iv) for good reason (as defined in SECTION 6(d)) upon not
less than thirty (30) days' prior notice from the Executive to
the Employer.
(b) Definition of Disability. For purposes of SECTION 6(a), 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 one
hundred twenty (120) consecutive days, or one hundred eighty (180) days
during any twelve (12) month period, as determined in accordance with
this SECTION 6(b). 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(b) will be binding on both
parties. The Executive must submit to a reasonable number of
examinations by the medical doctor making the determination of
disability under this SECTION 6(b), and the Executive hereby authorizes
the disclosure and release to the Employer of such determination and
all supporting medical records. 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(b), for the purposes of submitting the Executive to the examinations,
and providing the authorization of disclosure, required under this
SECTION 6(b).
(c) Definition of "For Cause." For purposes of SECTION 6(A), the phrase
"FOR CAUSE" means: (i) the Executive's material breach of this
Agreement or the Noncompetition Agreement entered into on the date
hereof between the Buyer and the Executive (the "NONCOMPETITION
AGREEMENT"); (ii) the Executive's failure to adhere to any written
Employer policy if the Executive has been given a reasonable
opportunity to comply with such policy or cure his failure to comply
(which reasonable opportunity must be granted during the ten- (10) day
period preceding termination of this Agreement); (iii) the
appropriation (or attempted appropriation) of a material business
opportunity of the Employer, including attempting to secure or securing
any personal profit in connection with any transaction entered into on
behalf of the Employer; (iv) the misappropriation (or attempted
misappropriation) of any of the Employer's funds or property; or (v)
the conviction of, or the entering of a guilty plea or plea of no
contest with respect to, a felony, the equivalent thereof, or any other
crime with respect to which imprisonment is a possible punishment.
(d) Definition of "For Good Reason." For purposes of SECTION 6(a), the
phrase "FOR GOOD REASON" means any of the following: (i) the Employer's
material breach of this Agreement; (ii) 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; or (iii) the
relocation of the Employer's principal executive offices outside the
Longview/Tyler area; or (iv) 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.
(e) Termination Pay. 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(e), 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. For purposes of this SECTION 6(e), 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.
(i) Termination by the Executive for Good Reason. If the
Executive terminates this Agreement for good reason, the
Employer will pay the Executive: (x) the Executive's Salary
for the remainder of the term of employment set forth in
SECTION 2(b) or for six (6) consecutive calendar months
following such termination, whichever period is longer; and
(y) that portion of the Executive's Incentive Compensation, if
any, for the Fiscal Year during which the termination is
effective, prorated through the date of termination.
Notwithstanding the preceding sentence, if the Executive
obtains other employment prior to expiration of the period for
which the Employer is obligated to pay the Executive's Salary
pursuant to the preceding sentence, he must promptly give
notice thereof to the Employer, and the Salary payments under
this Agreement for any period after the Executive obtains
other employment will be reduced by the amount of the cash
compensation received and to be received by the Executive from
the Executive's other employment for services performed during
such period.
(ii) Termination by the Employer for Cause. 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, but will not be entitled to any
Incentive Compensation for the Fiscal Year during which such
termination occurs or any subsequent Fiscal Year.
(iii) Termination Upon Disability. If this Agreement is
terminated by either party as a result of the Executive's
disability, as determined under SECTION 6(b), the Employer
will pay the Executive his Salary through the remainder of the
calendar month during which such termination is effective, and
that part of the Executive's Incentive Compensation, if any,
for the Fiscal Year during which such termination is
effective, prorated through the date of termination.
(iv) Termination Upon Death. 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, and that part of the
Executive's Incentive Compensation, if any, for the Fiscal
Year during which his death occurs, prorated through the end
of the calendar month during which his death occurs.
(v) Termination After Expiration of Term of Employment. If
Executive's employment is terminated by the Employer following
the term of employment set forth in SECTION 2(b), other than
"for cause," the Employer will pay the Executive's Salary for
the remainder, if any, of the calendar month in which such
termination is effective and for six (6) consecutive calendar
months thereafter.
(vi) Benefits. 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 effective
date the notice of termination is given under this Agreement.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
(a) Acknowledgments by the Executive. The Executive acknowledges that:
(i) during his employment with the Employer and as a part of his
employment, the Executive will be afforded access to Confidential
Information; (ii) public disclosure of such Confidential Information
could have an adverse effect on the Employer and its business; (iii)
because the Executive possesses substantial technical expertise and
skill with respect to the Employer's business, the Employer desires to
obtain exclusive ownership of each Employee Invention, and the Employer
will be at a substantial competitive disadvantage if it fails to
acquire exclusive ownership of each Employee Invention; (iv) the Buyer
has required that the Executive make the covenants in this SECTION 7 as
a condition to its purchase of the Employer's stock; and (v) 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.
(b) 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:
(i) Confidentiality.
1) 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 or as
required by any court of competent jurisdiction or any
governmental or regulatory body.
2) Any trade secrets of the Employer will be entitled to all
of the protections and benefits under Texas common law and any
other 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.
3) 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.
4) 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, 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 Executive's control, and the
Executive shall not retain any copies, abstracts, sketches, or
other physical embodiment of any of the Proprietary Items.
(ii) Employee Inventions.
1) Each Employee Invention will belong exclusively to the
Employer. The Executive acknowledges that all of the
Executive's Employee Inventions are works made for hire and
the property of the Employer, including any copyrights,
patents, semiconductor mask protection, or other intellectual
property rights pertaining thereto. If it is determined that
any such Employee Inventions 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, patent, semiconductor mask protection, and other
intellectual property rights, to or in such Employee
Inventions. The Executive covenants that he will promptly:
a. disclose to the Employer in writing any Employee
Invention;
b. 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;
c. 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;
d. sign all other papers necessary to carry out the
above obligations; and
e. give testimony and render any other assistance,
but without expense to the Executive, in support of
the Employer' s rights to any Employee Invention,
other than in connection with a dispute between the
Executive and the Employer.
(c) 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. NONCOMPETITION AND NON-INTERFERENCE
(a) Acknowledgments by the Executive. The Executive acknowledges that:
(i) the services to be performed by him under this Agreement are of a
special, unique, unusual, extraordinary, and intellectual character;
(ii) the Employer's business is international in scope and its products
are marketed throughout the world; (iii) the Employer competes with
other businesses that are or could be located in any part of the world;
(iv) the Buyer has required that the Executive make the covenants set
forth in this SECTION 8 as a condition to the Buyer's purchase of the
Executive's stock in the Employer; and (v) the provisions of this
SECTION 8 are reasonable and necessary to protect the Employer's
business.
(b) 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:
(i) 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 with the products or activities
of the Employer; provided, however, that the Executive may
purchase or otherwise acquire up to (but not more than) one
percent (1%) of any class of securities of any enterprise (but
without otherwise participating in the activities of such
enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under
Section 12(g) of the Securities Exchange Act of 1934;
(ii) whether for the Executive's own account or for the
account of any other person, at any time during the Employment
Period, solicit business of the same or similar type 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;
(iii) whether for the Executive's own account or the account
of any other person (i) at any time during the 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,
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
(iv) at any time during or after the Employment Period,
disparage the Employer or any of its shareholders, directors,
officers, employees, or agents.
If any covenant in this SECTION 8(b) 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(b) 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(b) is in
effect, give notice to the Employer, within ten (10) days after
accepting any other employment, of the identity of the Executive's
employer. The Buyer or 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.
9. GENERAL PROVISIONS
(a) 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, 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. Without limiting the Employer's rights
under this SECTION 9 or any other remedies of the Employer, if the
Executive materially breaches any of the material provisions of
SECTIONS 7 or 8, the Employer will have the right to cease making any
payments otherwise due to the Executive solely under this Agreement.
(b) 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 Buyer would not have
purchased the Executive's stock under the Stock Purchase Agreement and
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 and
have been advised in all respects concerning the reasonableness and
propriety of such covenants, with specific regard to the nature of the
business conducted by the Employer. 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.
(c) 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 Buyer has against the Executive under the Stock
Purchase Agreement or the Noncompetition Agreement to the extent such
claims have been proven by Buyer in a court of competent jurisdiction.
(d) 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: (i)
violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to the Executive; or (ii)
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.
(e) 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.
(f) 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, (i) 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; (ii) no waiver that
may be given by a party will be applicable except in the specific
instance for which it is given; and (iii) 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.
(g) 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.
(h) 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: (i) delivered by hand (with written confirmation of
receipt); (ii) sent by facsimile (with written confirmation of
receipt), provided that a copy is mailed by registered mail, return
receipt requested; or (iii) 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):
IF TO EMPLOYER:
CADDX-CADDI Controls, Inc.
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
With a copy to:
ITI Technologies, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx Xx. Xxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
IF TO THE EXECUTIVE:
CADDX-CADDI Controls, Inc.
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxx XxXxxxxxx & Oaks Xxxxxxxx
P.O. Box 3999
Longview, Texas
Attention: Xxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
(i) Entire Agreement; Amendments. This Agreement, the Noncompetition
Agreement, the Stock Purchase Agreement, and the documents executed in
connection with the Stock Purchase Agreement, contain the entire
agreement between the parties with respect to the subject matter hereof
and supersede 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.
(j) Governing Law. This Agreement will be governed by the laws of the
State of Texas without regard to conflicts of laws principles.
(k) 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 Xxxxx, or, if it has or can acquire jurisdiction, in
the United States District Court for the Eastern 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.
(l) 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.
(m) 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.
(n) 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.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
EMPLOYER: EXECUTIVE:
CADDX-CADDI CONTROLS, INC.
/s/ Xxx Xxxxx
-------------------------
Xxx Xxxxx, Individually
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx, Vice President
Engineering and Secretary
