Exhibit 10.18
EXECUTIVE EMPLOYMENT AGREEMENT
PLANAR SYSTEMS, INC.
PARTIES: Planar Systems, Inc. ("Company"),
0000 XX Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Balakrishnan Krishnamurthy ("Executive")
0000 XX 000xx Xxxxx
Xxxxxxxx, XX 00000
DATE: September 24, 1999
RECITAL:
The Company wishes to obtain the services of the Executive and Executive
wishes to provide his services to the Company upon the terms and conditions set
out in this Agreement.
AGREEMENT:
NOW, THEREFORE, for valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
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1.1 "Base Salary" shall mean regular cash compensation paid on a periodic
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basis exclusive of benefits, bonuses or incentive payments.
1.2 "Board" shall mean the Board of Directors of Company.
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1.3 "Disability" shall mean the inability of the Executive to perform the
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essential functions of his position under this Agreement, with reasonable
accommodation, because of physical or mental incapacity for a continuous
period of five (5) months, as reasonably determined by the Board after
consultation with a qualified physician selected by the Board.
1.4 "Company" shall mean Planar Systems, Inc. and, any successor in
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interest by way of consolidation, operation of law, merger or otherwise.
ARTICLE 2
EMPLOYMENT, DUTIES AND TERM
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Exhibit A - List of Business Interests
2.1 Employment. Upon the terms and conditions set forth in this
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Agreement, the Company hereby employs the Executive in the position of
President and Chief Executive Officer, and the Executive accepts such
employment effective as of September 27, 1999.
2.2 Duties. The Executive shall devote his full-time and best efforts to
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the Company and to fulfilling the duties of his position which shall
include all duties commonly incident to the offices of President and Chief
Executive Officer, including but not limited to, supervision and direction
of Company operations; personnel and financial matters; reports to the
Board concerning all phases of the operation of the Company and maintenance
of all records sufficient to meet the reporting requirements of the
Company, and such other duties as may from time to time be assigned to him
by the Board. The Executive shall comply with the Company's policies and
procedures to the extent they are not inconsistent with this Agreement, in
which case the provisions of this Agreement shall prevail.
2.3 Term. This Agreement shall remain in effect until the earlier of (i)
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termination pursuant to Article 4 of this Agreement or (ii) the second
Anniversary of the date hereof; provided, however, that commencing on the
second Anniversary of the date hereof and each Anniversary thereafter, the
term of this Agreement shall automatically be extended for one additional
year unless at least 90 days prior to such Anniversary Executive or the
Company shall have given notice to the other that the term of this
Agreement shall not be extended.
2.4 Board Membership. Company shall appoint Executive to the Board to
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serve until the next Board election at which time Company shall use its
best efforts to obtain Executive's re-election to the Board.
ARTICLE 3
COMPENSATION AND EXPENSES
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3.1 Base Salary. For all services rendered under this Agreement, the
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Company shall pay Executive a Base Salary at an annual rate of $350,000.
Company shall pay Executive in approximately equal monthly amounts pursuant
to its standard payroll schedule. All amounts paid to Executive under this
Agreement shall be reduced by such amounts as are required to be withheld
by law.
3.2 Bonus. Upon execution of this Agreement, the Company shall pay
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Executive a bonus of $75,000, reduced by such amounts as are required to
be withheld by law. In addition, Executive shall be eligible to participate
in the Company's Executive Bonus Program. Such program shall provide an
opportunity for Executive to earn annual bonus compensation in the amount
of 70% ($245,000) of his annual Base Salary if target performance is
achieved; provided, however, that Executive's bonus pursuant to the
Company's Executive Bonus Program for fiscal year 2000 shall not be less
than $140,000.
Page 2 - Executive Employment Agreement
3.3 Stock Grant. Upon execution of this Agreement or within ten days
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thereafter, Company shall grant Executive 50,000 shares of the Company's no
par value common stock ("Shares"). Except as otherwise stated herein, the
grant of such Shares shall be subject to the terms and conditions of the
Planar Systems, Inc. Restricted Stock Award Agreement in the form attached
hereto as Exhibit A.
3.4 Stock Options. Upon execution of this Agreement or within ten days
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thereafter, Company shall grant Executive options to purchase 250,000
shares of the Company's no par value common stock as follows: (i) options
to purchase up to 50,000 shares shall be incentive stock options with an
exercise price fixed in accordance with the provisions of the Planar
Systems, Inc. 1996 Stock Incentive Plan and the exact number of options
determined based on the application of the statutory $100,000 limitation,
and (ii) the remaining options shall be nonqualified stock options with an
exercise price of $6.5625. Except as otherwise stated herein, such Shares
shall be subject to the terms and conditions of the Planar Systems, Inc.
Nonqualified Stock Option Agreement in the form attached hereto as Exhibit
B and the Planar Systems, Inc. 1996 Stock Incentive Plan and the associated
Planar Systems, Inc. 1996 Stock Incentive Plan Stock Option Agreement,
respectively.
3.5 Benefits. Executive shall be entitled to receive such insurance and
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other employment benefits as are available to other executive officers of
Company under the same terms and conditions applicable to such other
executive officers. Such benefits may change from time to time or may be
eliminated by Company.
3.6 Business Expenses. The Company shall, in accordance with, and to the
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extent of, its policies in effect from time to time, reimburse all ordinary
and necessary business expenses reasonably incurred by the Executive in
performing his duties as an employee of the Company, provided that the
Executive accounts promptly for such expenses to the Company in the manner
prescribed from time to time by the Company.
3.7 Vacation. Executive shall be immediately credited with 200 hours of
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Paid Time Off (PTO) which may be used at Executive's discretion at any time
after the date hereof. Except as provided herein, Executive shall be
entitled to vacation and sick leave according to the standard policies and
procedures of Company.
3.8 Reimbursement of Professional Expenses. Company shall reimburse
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professional fees incurred by Executive to obtain tax and financial
planning advice up to a maximum amount of $10,000 annually.
ARTICLE 4
TERMINATION
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4.1 Termination. This Article 4 governs termination of this Agreement at
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any time during the term of this Agreement.
Page 3 - Executive Employment Agreement
4.2 Termination for Cause. The Company may terminate this Agreement and
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Executive's employment immediately for "Cause" as that term is defined
herein, upon written notice to the Executive.
4.2.1 "Cause" means any one of the following: (a) fraud, (b)
misrepresentation by Executive (c) theft or embezzlement of the
Company assets, (d) intentional violations of law involving
moral turpitude, (e) the continued failure by the Executive to
satisfactorily perform his duties as reasonably assigned to the
Executive pursuant to Section 2.2 of this Agreement for a
period of thirty (30) days after a written demand for such
satisfactory performance which specifically and with reasonable
detail identifies the manner in which it is alleged that the
Executive has not satisfactorily performed such duties,
provided, however, that no termination for Cause pursuant to
this subparagraph (e) will be effective until after Executive,
together with Executive's counsel, have had an opportunity to
be heard before the Board, and (f) any material breach of this
Agreement which, if curable, has not been cured within thirty
(30) days after written notice to Executive of such breach.
4.2.2 In the event of termination for Cause pursuant to this Section
4.2, the Executive shall be paid his Base Salary through the
date of termination specified in any notice of termination.
Executive shall not be entitled to any additional compensation
or severance.
4.3 Termination Without Cause. This Section 4.3 shall not be applicable in
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the event of a Change of Control Termination (which shall be governed by
Article 6), where Cause for termination is asserted or in the event of
termination due to Executive's death or Disability.
4.3.1 Executive may terminate this Agreement and Executive's
employment at any time by providing at least thirty (30) days'
written notice to Company.
4.3.2 If any of the following events occur without Executive's prior
written consent, Executive may terminate this Agreement and
Executive's employment by providing written notice to the
Company specifically describing the event upon which such
termination is based not later than ninety (90) days after the
occurrence of such event:
4.3.2.1 A reduction in Executive's Base Salary or annual bonus
opportunity under the Company's Executive Bonus
Program below the amounts stated in Sections 3.1 and
3.2, respectively.
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4.3.2.2 The removal of Executive from the position as Chief
Executive Officer of the Company or the institution by
the Company of a requirement that Executive regularly
report other than to the Board of Directors.
4.3.2.3 The institution by the Company of a requirement that
Executive be based anywhere other than within 25 miles
of Beaverton, Oregon.
4.3.3 The Company may terminate this Agreement and Executive's
employment at any time without Cause upon giving Executive at
least thirty (30) days' written notice; provided, however, that
the Company shall have the option of making termination of the
Agreement and termination of Executive's employment effective
immediately upon notice, in which case, in addition to the
payments provided for by Section 4.3.4 below, Executive shall
be paid his Base Salary through a notice period of thirty (30)
days.
4.3.4 If the Company gives notice pursuant to Section 2.3 that the
term of this Agreement shall not be extended, or if this
Agreement and Executive's employment are terminated by
Executive pursuant to Section 4.3.2 or by the Company pursuant
to Section 4.3.3, then:
4.3.4.1 for a period of eighteen (18) months following the
effective date of Executive's termination, the Company
shall continue to pay Executive his Base Salary,
payable according to Company's normal payroll
practices; and
4.3.4.2 If Executive elects to continue his group health
benefits under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"), the Company
shall pay the premium for Executive's COBRA
continuation coverage for a period of up to eighteen
(18) months; and
4.3.4.3 If life and disability insurance coverage maintained
by Executive through the Company may, under the terms
of the plans, be continued in effect for former
employees, Company shall pay the premiums to continue
such coverage in effect for a period of eighteen (18)
months following the effective date of Executive's
termination; and
4.3.4.4 All outstanding stock options and stock grants held by
Executive at the effective date of Executive's
termination that would, by their terms, vest within
eighteen (18) months of the effective date of
Executive's termination shall become fully vested
effective as of the effective date of Executive's
termination; and
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4.3.4.5 As a condition of receiving the compensation and other
benefits pursuant to this Section 4.3.4, Executive
agrees to sign, at the time of termination, the form
of release attached hereto as Exhibit C.
4.4 Termination in the Event of Death or Disability. This Agreement and
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Executive's employment shall terminate immediately in the event of
Executive's death or Disability. Executive shall cooperate with the Board
to provide information and submit to such examinations as the Board may
find necessary to make a determination regarding Executive's Disability.
4.4.1 In the event of the Executive's death, the Company shall pay
Executive's Base Salary owing to Executive as of the date of
termination plus an amount equal to eighteen (18) months of
Base Salary at the rate in effect at the time of Executive's
death. Such amount shall be paid (1) to the beneficiary or
beneficiaries designated in writing to Company by Executive,
(2) in the absence of such designation, to the surviving
spouse, or (3) if there is no surviving spouse, or such
surviving spouse disclaims all or any part, then the full
amount, or such disclaimed portion, shall be paid to the
executor, administrator or other personal representative of
Executive's estate. The amount shall be paid as a lump sum as
soon as practicable following Company's receipt of notice of
Executive's death. No further payments shall be made by Company
to Executive.
4.4.2 In the event of termination due to Executive's Disability,
Executive's Base Salary shall be paid through the date of
termination. In addition, the Company shall pay Executive a
lump sum amount equal to eighteen (18) months Base Salary at
the rate in effect at the time of termination. No further
payments shall be made by Company to Executive.
4.4.3 In the event of termination after the second anniversary of the
date of this Agreement due to Executive's death or Disability,
all outstanding stock options and stock grants held by
Executive at the effective date of Executive's termination that
would, by their terms, vest within eighteen months of the
effective date of Executive's termination shall become fully
vested as of the effective date of Executive's termination.
4.5 Entire Termination Payment. The compensation provided for in this
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Article 4 shall constitute Executive's sole remedy for termination of this
Agreement.
4.6 Resignation From The Board. Upon termination of Executive's
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employment with Company for any reason, Executive shall offer his
resignation as a member of the Board and as an officer or director of any
subsidiary or affiliate of the Company in which he holds such positions.
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ARTICLE 5
CONFIDENTIALITY/NONCOMPETITION/CONFLICT OF INTEREST
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5.1 Proprietary Information. Executive shall keep confidential, except
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as the Company may otherwise consent in writing, and not disclose or make
any use of except for the benefit of the Company, at any time either during
or subsequent to his employment by the Company, any Proprietary Information
which he may produce, obtain or otherwise acquire during the course of his
employment. As used herein, "Proprietary Information" shall include any
trade secrets, confidential information, knowledge, data, or other
information of the Company relating to products, processes, know-how,
software designs, formulae, test procedures and results, customer lists,
business plans, marketing plans and strategies, and pricing strategies, or
other subject matter pertaining to any business of the Company for any of
its clients, customers, consultants, licensees of affiliates, which
information is not in the public domain at the time of the alleged breach.
In the event of the termination of the Executive's employment for any
reason whatsoever, Executive shall promptly return all records, materials,
equipment, drawings, software and the like pertaining to any Proprietary
Information.
5.2 Covenant Not to Compete. Executive acknowledges that he will provide
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special skills, and acquire special information, regarding the activities
of the Company. Executive agrees, therefore, that he will not, for a
period of eighteen (18) months from and after the date he ceases to be
employed by the Company, join, control or participate in the ownership,
management, operation or control of or be connected with or provide
services in any manner to, any business which is in direct or indirect
competition with the Company or any of the Company's subsidiaries or
affiliates or which is developing products or services which will be in
direct or indirect competition with the Company or any of the Company's
subsidiaries or affiliates. Executive agrees that he shall be deemed to be
"connected with" a business if such a business is carried on by a
partnership in which he is a general or limited partner or employee of a
corporation or association of which he is a shareholder, officer, director,
employee, member, consultant or agent; provided, that nothing herein shall
prohibit the purchase or ownership by him of shares of less than five
percent (5%) in a publicly or privately held corporation. The non-
competition restrictions of this section are effective regardless of the
reason for Executive's termination of employment with the Company.
5.3 Consent to Injunction. Executive agrees that the Company will or
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would suffer an irreparable injury if Executive were to breach Section 5.1
or 5.2 of this Agreement and that the Company would by reason of such
breach be entitled to injunctive relief in a court of appropriate
jurisdiction and Executive stipulates to the entering of such injunctive
relief.
Page 7 - Executive Employment Agreement
5.4 Severability. The parties intend that the covenants contained in
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Section 5.2 be deemed to be separate covenants as to each county and state,
and that if in any judicial proceeding a court shall refuse to enforce all
of the separate covenants included herein because, taken together, they
cover too extensive a geographic area or because any one includes too large
an area or because they are excessive as to duration, the parties intend
that such covenants shall be reduced in scope to the extent required by law
or, if necessary, eliminated from the provisions hereof, and that all of
the remaining covenants hereof not so affected shall remain fully effective
and enforceable.
5.5 Assignment of Inventions. As used in this Agreement, "inventions"
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shall include, but not be limited to, ideas, improvements, designs, and
discoveries. Executive hereby assigns and transfers to the Company his
entire right, title and interest in and to all inventions whether or not
conceived by Executive (whether made solely by Executive or jointly with
others) during the period of his employment with the Company which relate
in any manner to the actual or demonstrably anticipated business, work, or
research and development of the Company or its subsidiaries, or result from
or are suggested by any tasks assigned to Executive or any work performed
by Executive for or on behalf of the Company or its subsidiaries.
Executive agrees that all such inventions are the sole property of the
Company. The provisions of this Section 5.5 are subject to and qualified by
Executive's obligation to assign to Tektronix, Inc. any inventions
developed by Executive during the six-month period following Executive's
termination of employment from Tektronix that relate to Tektronix
activities or that result from tasks assigned to Executive by Tektronix.
5.6 Disclosure of Inventions, Patents. Executive agrees that in
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connection with any invention as defined in Section 5.5, above:
5.6.1 Executive will disclose such invention promptly in writing to
the Board regardless of whether he believes the invention is
protected by applicable state law, in order to permit the
Company to claim rights to which it may be entitled under this
Agreement. Such disclosure shall be received in confidence by
the Company;
5.6.2 Executive will, at the Company's request, promptly execute a
written assignment of title to the Company for any invention
required to be assigned by Section 5.5 ("assignable invention")
and Executive shall preserve any such assignable invention as
confidential information of the Company;
5.6.3 Upon request, Executive agrees to assist the Company or its
nominee (at its expense) during and at any time subsequent to
his employment in every reasonable way to obtain for its own
benefit patents and copyrights for such assignable inventions
in any and all countries. Executive agrees to
Page 8 - Executive Employment Agreement
execute such papers and perform such lawful acts as the Company
deems to be reasonably necessary to allow it to exercise all
right, title, and interest in such patents and copyrights; and
5.6.4 Executive agrees to submit a list of inventions made prior to
his employment by the Company on Exhibit D attached hereto and
incorporated by reference herein.
5.7 Execution of Documentation. In connection with Section 5.5 and
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Section 5.6, Executive further agrees to execute, acknowledge and deliver
to the Company or its nominee upon request and at its expense all such
assignments of inventions, patents, and copyrights to be issued therefor,
as the Company may determine necessary or desirable for which to apply.
5.8 Third-Party Obligations. Executive acknowledges that the Company from
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time to time may have agreements with other persons or with the U.S.
Government, or agencies thereof, which impose obligations or restrictions
on the Company regarding inventions made during the course of work
thereunder or regarding the confidential nature of such work. Executive
agrees to be bound by all such obligations and restrictions.
5.9 Confidentiality or Non-Competition Obligations Owed to Others.
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Executive represents that his employment by the Company does not breach any
agreement to keep in confidence proprietary information, knowledge, or data
acquired by Executive in confidence or in trust prior to his employment
with the Company, nor does it breach any restrictive covenant or
noncompetition agreements. Executive will not disclose to the Company, or
induce the Company to use, any confidential or proprietary information or
material belonging to any previous employer or others. Executive agrees
not to enter into any agreement either written or oral in conflict
herewith.
5.10 Conflict of Interest. During Executive's employment with the
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Company, Executive will engage in no activity or employment which may
conflict with the interest of the Company without the prior written consent
of the Company and will comply with the Company's policies and guidelines
pertaining to business conduct and ethics.
5.11 Survival of Obligations. The provisions of this Article 5 shall
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survive termination of this Agreement.
ARTICLE 6
CHANGE OF CONTROL
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For purposes of this Article 6, the following definitions shall be applied:
Page 9 - Executive Employment Agreement
6.1 Definitions.
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6.1.1 "Change of Control" shall mean any of the following events:
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6.1.1.1 the approval by the Company's shareholders of a
merger, reorganization, consolidation or similar
transaction (a "Merger") to which the Company is a
party unless the individuals and entities who were the
beneficial owners (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of the common stock
and other securities of the Company that are entitled
to vote generally in the election of directors
(collectively, "Voting Securities") immediately prior
to the effective date of the Merger would have
beneficial ownership (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934) immediately after
the effective date of the Merger of more than fifty
percent (50%) of the total combined voting power of
the common stock and other securities entitled to vote
generally in the election of directors of the
corporation resulting from the Merger in substantially
the same proportions relative to each other as their
ownership of Voting Securities immediately prior to
the effective date of the Merger;
6.1.1.2 the acquisition (other than directly from the Company)
by any person or entity, or group of associated
persons or entities acting in concert of direct or
indirect beneficial ownership (as defined in Rule 13d-
3 under the Securities Exchange Act of 1934) of
securities of the Company representing twenty-five
percent (25%) or more of the total combined voting
power of the Company's then issued and outstanding
securities;
6.1.1.3 the approval by the Company's shareholders of the sale
of all or substantially all of the assets of the
Company to any person or entity which is not a wholly-
owned subsidiary of the Company; or
6.1.1.4 the approval by the Company's shareholders of any plan
or proposal for the liquidation of the Company.
6.1.2 "Good Reason" shall mean a good faith determination by
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Executive, in Executive's reasonable judgment, that any one or
more of the following events has occurred without Executive's
express written consent, after a Change of Control:
6.1.2.1 A change in Executive's responsibilities, titles or
offices as in effect immediately prior to the Change
of Control, or any removal of Executive from, or any
failure to re-elect Executive to, any of
Page 10 - Executive Employment Agreement
such positions, which has the effect of materially
diminishing Executive's responsibility or authority;
6.1.2.2 A reduction by Company in Executive's Base Salary as
in effect immediately prior to the Change of Control
or any failure to pay Executive any compensation or
benefits to which he or she is entitled when due;
6.1.2.3 A requirement by Company that Executive be based
anywhere other than within 25 miles of Beaverton,
Oregon;
6.1.2.4 Without replacement by plans, programs or arrangements
which, taken as a whole, provide benefits to Executive
at least reasonably comparable to those discontinued
or adversely affected, (A) the failure by Company to
continue in effect (without reduction in benefit level
and/or reward opportunities), any material
compensation or employee benefit plan, program or
arrangement in which Executive was participating
immediately prior to a Change of Control; or (B) the
taking of any action by Company that would materially
adversely affect Executive's participation or
materially reduce Executive's benefits under any of
such plans, programs or arrangements;
6.1.2.5 The failure by Company to obtain an agreement,
reasonably satisfactory to Executive, from any
successor or assign of the Company to assume and agree
to perform this Agreement; or
6.1.2.6 Any material breach of this Agreement by Company which
breach is not remedied for a period of thirty (30)
days following written notice by Executive to Company,
which notice specifically identifies the nature of the
breach.
6.1.3 "Change of Control Termination" shall mean, with respect to
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Executive, any of the following events occurring within two
years after a Change of Control:
6.1.3.1 Termination of the Executive's employment by the
Company for any reason other than for Cause, as
defined in Section 4.2.1 of this Agreement.
6.1.3.2 Termination of the Executive's employment by the
Executive pursuant to Section 6.2 of this Agreement. A
Change of Control Termination shall not, however,
include termination by death or disability.
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6.2 Change of Control Termination Right. For a period of two (2) years
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following a Change of Control, Executive shall have the right, at any
time and within Executive's sole discretion, to terminate employment
with Company for Good Reason. Such termination shall be accomplished
by, and effective upon, Executive giving written notice to Company of
Executive's decision to terminate.
6.3 Change of Control Termination Payment. In the event of a Change of
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Control Termination, then, and without further action by the Board,
the Company shall provide the benefits identified in Sections 4.3.4.2,
4.3.4.3 and 4.3.4.4 of this Agreement and, within ten (10) days of
such termination, make a lump sum payment to Executive in an amount
equal to eighteen (18) months Base Salary at the higher of (i) the
rate in effect on the date of the Change of Control, or (ii) the rate
in effect on the date of the Change of Control Termination.
6.4 Interest. In the event the Company does not make timely payment in
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full of the Change of Control Termination payment described in Section
6.3, Executive shall be entitled to receive interest on any unpaid
amount at the prime rate of interest (or such comparable index as may
be adopted) established from time to time by the Company's principal
banking institution.
6.5 Attorneys' Fees. In the event Executive incurs any legal expense to
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enforce or defend his or her rights under this Article VI of this
Agreement, or to recover damages for breach thereof, Executive shall
be entitled to recover from Company any expenses for attorneys' fees
and disbursements incurred.
ARTICLE 7
GENERAL PROVISIONS
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7.1 Notices. All notices, requests and demands given to or made pursuant
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hereto shall, except as otherwise specified herein, be in writing and shall
be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by facsimile and
confirmed by return facsimile, or three days after being mailed by first-
class mail, postage prepaid and return receipt requested in each case to
the applicable address as set forth at the beginning of this Agreement.
Either party may change its address, by notice to the other party given in
the manner set forth in this Section.
7.2 Caption. The various headings or captions in this Agreement are for
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convenience only and shall not affect the meaning or interpretation of this
Agreement.
7.3 Governing Law/Forum. The validity, construction and performance of
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this Agreement shall be governed by the laws of the State of Oregon. The
exclusive forum for any disputes arising under this Agreement that are not
subject to arbitration shall be the appropriate state or federal court
located in Portland, Oregon.
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7.4 Mediation. In case of any dispute arising under this Agreement which
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cannot be settled by reasonable discussion, the parties agree that, prior
to commencing any arbitration proceeding as contemplated by Section 7.5
they will first engage the services of a professional mediator agreed upon
by the parties and attempt in good faith to resolve the dispute through
confidential nonbinding mediation. Each party shall bear one-half of the
mediator's fees and expenses and shall pay all of its own attorneys' fees
and expenses related to the mediation.
7.5 Arbitration. Any dispute concerning the interpretation, construction,
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breach or enforcement of this Agreement or arising in any way from
Executive's employment with the Company or termination of employment shall
be submitted to final and binding arbitration. The arbitration is to be
conducted before a single arbitrator in Portland, Oregon. The arbitration
shall be conducted pursuant to the rules of the American Arbitration
Association ("AAA"). Executive and the Company agree that, except for
Company's right to ask a court for injunctive relief pursuant to Section
5.3, the procedures outlined in Section 7.4 and 7.5 are the exclusive
method of dispute resolution.
7.6 Attorney Fees. If any action at law, in equity or by arbitration is
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taken to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled, including fees and expenses on appeal.
7.7 Construction. Wherever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this
Agreement.
7.8 Waivers. No failure on the part of either party to exercise, and no
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delay in exercising, any right or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right or
remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by any related
document or by law.
7.9 Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the Company and its successors and assigns, and
shall be binding upon the Executive, his administrators, executors,
legatees, and heirs. In that this Agreement is a personal services
contract, it shall not be assigned by the Executive.
7.10 Modification. This Agreement may not be and shall not be modified or
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amended except by written instrument signed by the parties hereto.
7.11 Entire Agreement. This Agreement constitutes the entire agreement
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and understanding between the parties hereto in reference to all the
matters herein agreed
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upon. This Agreement replaces and supersedes all prior agreements or
understandings of the parties hereto with respect to the subject matter
hereof.
7.12 Board Approval. This Agreement shall be subject to approval by the
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Board.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
EXECUTIVE PLANAR SYSTEMS, INC.
/s/ Balakrishnan Krishnamurthy By: /s/ Xxxxxxx X. Xxxxxx
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Balakrishnan Krishnamurthy Title: President and CEO
Page 14 - Executive Employment Agreement
