Exhibit 10(s)
EMPLOYMENT, NONDISCLOSURE AND NON-COMPETE AGREEMENT
EMPLOYMENT, NONDISCLOSURE AND NON-COMPETE AGREEMENT
("Agreement") made and entered into as of this 1st day of June,
1998 by and between XXXXXXXXXX ELECTRONICS, LTD., a Delaware
corporation with its principal place of business located at X.X.
Xxx 000, 00X000 Xxxxxxxxx Xxxx, XxXxx, XX 00000-0000 (the
"Company"), and XXXXX XXXXXX of 00000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxx
XX 00000 (hereinafter called "Executive").
RECITALS
WHEREAS, the Company desires to continue to employ Executive
as its Executive Vice President and General Manager, Security
Systems Division upon the terms and conditions stated herein; and
WHEREAS, Executive desires to continue to be so employed by
the Company at the salary and benefits provided for herein; and
WHEREAS, Executive acknowledges and understands that during
the course of his employment, Executive has and will become
familiar with certain confidential information of the Company which
provides Company with a competitive advantage in the marketplace in
which it competes, is exceptionally valuable to the Company, and is
vital to the success of the Company's business; and
WHEREAS, the Company and Executive desire to protect such
confidential information from disclosure to third parties or its
use to the detriment of the Company; and
WHEREAS, the Executive acknowledges that the likelihood of
disclosure of such confidential information would be substantially
reduced, and that legitimate business interests of the Company
would be protected, if Executive refrains from competing with the
Company and from soliciting its customers and employees during and
following the term of the Agreement, and Executive is willing to
covenant that he will refrain from such actions.
NOW THEREFORE, in consideration of the promises and of the
mutual covenants and agreements hereinafter set forth, the parties
hereto acknowledge and agree as follows:
ARTICLE ONE
NATURE AND TERM OF EMPLOYMENT
1.01 Employment. The Company hereby agrees to continue to
employ Executive and Executive hereby accepts continued employment
as the Company's Executive Vice President and General Manager,
Security Systems Division.
1.02 Term of Employment. Executive's employment pursuant to
this Agreement shall commence on June 1, 1998 and, subject to the
other provisions of this Agreement, the term of such employment
(the "Employment Term") shall continue indefinitely. This
Agreement and Executive's employment may be terminated without
reason or cause by not less than one (1) year written notice given
by one party to the other. In the event of such termination the
Company may assign such duties or no duties to Executive as it, in
its discretion, desires during such notice period. The Company may
terminate the Employment Term earlier so long as it pays
compensation in lieu of notice for the required balance of notice
period. This Agreement and Executive's employment may also be
terminated in the circumstances and manner provided in Article Five
below.
1.03 Duties. Executive shall perform such managerial duties
and responsibilities in connection with the Company's Security
Systems Division or its successor, and/or such other duties and
responsibilities as may be assigned by the President/COO, or such
other person as the Company may designate from time to time.
1.04 Compliance With Company Policy. Executive will adhere to
the policies and procedures of the Company, including, without
limitation, its Code of Conduct, and will follow the supervision
and direction of Company's President/COO or such other person as
the Company may designate from time to time in the performance of
his duties. Executive agrees to devote his full working time,
attention and energies to the diligent and satisfactory performance
of his duties hereunder and to developing and improving the
business and best interests of the Company. Executive agrees to
perform such duties and responsibilities to the satisfaction of the
President of the Company. Executive shall not engage in any other
business activity, whether or not such business activity is pursued
for gain or any other pecuniary advantage, without the prior
written consent of the Company. The Company hereby consents to
Executive's engaging in a tropical plant business so long as his
activity in connection therewith does not interfere with his
performance of his duties and obligations as an employee of the
Company. Executive will use all reasonable efforts to promote and
protect the good name of the Company and will comply with all of
his obligations, undertakings, promises, covenants and agreements
as set forth in this Agreement. Executive will not, during the
Employment Term or during any period during which Executive is
receiving payments pursuant to Section 1.02, Article 2 and/or
Section 5.06, engage in any activity which would have, or
reasonably be expected to have, an adverse affect on the Company's
reputation, goodwill or business relationships or which would
result, or reasonably be expected to result, in economic harm to
the Company.
ARTICLE TWO
COMPENSATION AND BENEFITS
For all services to be rendered by Executive in any capacity
hereunder (including as an officer, director, committee member or
otherwise of the Company or any parent or subsidiary thereof or any
division of any thereof) on behalf of the Company, the Company
agrees to pay Executive so long as he is employed hereunder, and
the Executive agrees to accept, the compensation set forth below.
2.01 Salary. During the term of Executive's employment
hereunder, the Company shall pay to Executive an annual salary
("Salary") of One Hundred Forty Thousand and 00/100 Dollars
($140,000.00), payable in installments as are customary under the
Company's payroll practices from time to time. The Company at its
sole discretion may, but is not required to, review and adjust the
Executive's Salary from year to year; provided, however, that,
except as may be expressly consented otherwise in writing by
Executive, Company may not decrease Executive's Salary. No
additional compensation shall be payable to Executive by reason of
the number of hours worked or by reason of hours worked on
Saturdays, Sundays, holidays or otherwise.
2.02 Bonus Plan. During the term of the Executive's
employment hereunder, the Executive shall be a participant in the
Strategic Business Unit Manager Incentive Plan, as modified from
time to time (the "Annual Incentive Plan"). The Executive's
"target bonus percentage" for purposes of the Annual Incentive Plan
shall be fifty percent (50%) of base Salary for fiscal year 1999.
Such bonus shall be determined and paid strictly in accordance with
the Annual Incentive Plan as modified or reduced by Company from
time to time at its discretion, and for any partial fiscal year the
bonus shall be computed and paid only for the portion of the fiscal
year Executive is employed hereunder, i.e. until the end of the
Employment Term.
2.03 Special Bonus. The Company shall pay Executive a special
bonus in the amount of One Hundred Eighty Seven Thousand Five
Hundred Dollars ($187,500), of which amount Forty Six Thousand
Eight Hundred Seventy Five Dollars will be paid in the form of a
Restricted Stock Award under the Company's 1996 Incentive
Compensation Plan on June 1, 1998 and the balance of One Hundred
Forty Thousand Six Hundred Twenty Five Dollars will be paid in cash
in three equal annual installments of Forty Six Thousand Eight
Hundred Seventy Five Dollars each on December 1, 1998, December 1,
1999 and December 1, 2000.
2.03 Other Benefits. Company will provide Executive such
benefits (other than bonus, severance and incentive compensation
benefits) as are generally provided by the Company to its other
Executives, including but not limited to, health/major medical
insurance, dental insurance, disability insurance, life insurance,
sick days and other Executive benefits (collectively "Other
Benefits"), all in accordance with the terms and conditions of the
applicable Other Benefits Plan. Nothing in this Agreement shall
require the Company to maintain any benefit plan nor prohibit the
Company from modifying any such plan as it sees fit from time to
time. It is only intended that Executive shall be entitled to
participate in any such plan offered for which he may qualify under
the terms of any such plan as it may from time to time exist, in
accordance with the terms thereof.
2.04 Disability. Any compensation Executive receives under
any disability benefit plan provided by Company during any period
of disability, injury or illness shall be in lieu of the
compensation which Executive would otherwise receive under Article
Two during such period of disability, injury or sickness.
2.05 Withholding. All salary, bonus and other payments
described in this Agreement shall be subject to withholding for
federal, state or local taxes, amounts withheld under applicable
benefit policies or programs, and any other amounts that may be
required to be withheld by law, judicial order or otherwise.
ARTICLE THREE
CONFIDENTIAL INFORMATION
RECORDS AND
REPUTATION
3.01 Definition of Confidential Information. For purposes of
this Agreement, the term "Confidential Information" shall mean all
of the following materials and information (whether or not reduced
to writing and whether or not patentable) to which Executive
receives or has received access or develops or has developed, in
whole or in part, as a direct or indirect result of his employment
with Company, its predecessors or its subsidiaries or through the
use of any of the Company's, its predecessors' or its
subsidiaries's facilities or resources:
(1) Customer lists, including, but not limited to, customer
names, customer contact persons, customer requirements,
and customer data; supplier lists, including, but not
limited to, supplier names, supplier contact persons,
supplier capabilities, and supplier data; marketing
techniques; practices; methods; plans; systems;
processes; purchasing information; price lists; pricing
policies; quoting procedures; product information;
operating policies and procedures; financial information;
and other materials or information relating to the manner
in which the Company, its predecessors or its subsidiar-
ies, or its customers and/or suppliers do business;
(2) Discoveries, concepts and ideas, whether patentable or
not, or copyrightable or not, including without
limitation the nature and results of research and
development activities, processes, formulas, techniques,
"know-how," designs, drawings and specifications;
(3) Any other materials or information related to the
business or activities of Company which are not generally
known to others engaged in similar businesses or
activities or which could not be gathered or obtained
without expenditure of time, effort and money; and
(4) All inventions and ideas which are derived from or relate
to Executive's access to or knowledge of any of the above
enumerated materials and information.
The Confidential Information shall not include any materials or
information of the types specified above to the extent that such
materials or information are publicly known or generally utilized
by others engaged in the same business or activities in the course
of which the Company, its predecessors or its subsidiaries
utilized, developed or otherwise acquired such information or
materials and which Executive has gathered or obtained from such
other public sources by his own (other than on behalf of the
Company, its predecessors or subsidiaries) expenditure of time,
effort and money. Failure to xxxx any of the Confidential Informa-
tion as confidential shall not affect its status as part of the
Confidential Information under the terms of this Agreement.
3.02 Ownership of Confidential Information. Executive agrees
that the Confidential Information is and shall at all times remain
the sole and exclusive property of Company. Executive agrees to
disclose immediately to Company all Confidential Information
developed in whole or part by him during the term of his
employment with Company under this Agreement or any prior or
subsequent agreement (oral or written) and to assign to Company any
right, title or interest he may have in such Confidential
Information.
Without limiting the generality of the foregoing, every invention,
improvement, product, process, apparatus, or design which Executive
may take, make, devise or conceive, individually or jointly with
others, during the period of his employment by the Company under
this Agreement or any prior or subsequent agreement (oral or
written), whether during business hours or otherwise, which relates
in any manner to the business of the Company either now or at any
time during the period of his employment), or which may be related
to the Company in connection with its business (hereinafter
collectively referred to as "Invention") shall belong to and be the
exclusive property of the Company and Executive will make full and
prompt disclosure to the Company of every Invention. Executive
will assign to the Company, or its nominee, every Invention and
Executive will execute all assignments and other instruments or
documents and do all other things necessary and proper to confirm
the Company's right and title in and to every Invention; and
Executive will perform all proper acts within his power necessary
or desired by the Company to obtain letters patent or copyright or
other registration in the name of the Company (at the Company's
expense) for every Invention in whatever countries the Company may
desire, without payment by the Company to Executive of any royalty,
license fee, price or additional compensation.
3.03. Non Disclosure of Confidential Information. Except
as required in the faithful performance of Executive's duties
hereunder (or as required by law), during the term of his
employment with Company under this Agreement or any prior or
subsequent agreement (oral or written) and for a period after the
termination of such employment until the Confidential Information
no longer meets the definition set forth above of Confidential
Information with respect to Executive, Executive agrees not to
directly or indirectly reveal, report, publish, disseminate,
disclose or transfer any of the Confidential Information to any
person or entity, or utilize for himself or any other person or
entity any of the Confidential Information for any purpose
(including, without limitation, in the solicitation of existing
Company customers or suppliers), except in the course of performing
duties assigned to him by Company. Executive further agrees to use
his best endeavors to prevent the use for himself or others, or
dissemination, publication, revealing, reporting or disclosure of,
any Confidential Information.
3.04 Protection of Reputation. Executive agrees that he will
at no time, either during his employment with the Company under
this Agreement or any prior or subsequent agreement (oral or
written) or at any time after termination of such employment,
engage in conduct which injures, xxxxx, corrupts, demeans, defames,
disparages, libels, slanders, destroys or diminishes in any way the
reputation or goodwill of the Company, its subsidiaries, or their
respective shareholders, directors, officers, employees, or agents,
or the services provided by the Company or the products sold by the
Company, or its other properties or assets, including, without
limitation, its computer systems hardware and software and its data
or the integrity and accuracy thereof.
3.05 Records and Use of Company Facilities. All notes, data,
reference materials, memoranda and records, including, without
limitation, data on the Company's computer system, computer
reports, products, customers and suppliers lists and copies of
invoices, in any way relating to any of the Confidential
Information or Company's business, all records relating to the
Company's or any subsidiary's operations, investigations, and
business, and any notes with respect to such records, made or
received by Executive in connection with his employment under this
Agreement or any prior or subsequent agreement (oral or written) ,
and all copies of such records or notes made by, for, or with the
consent of Executive, are and shall be the Company's property
exclusively, and Executive agrees to maintain them in a manner so
as to secure their confidentiality and to turn over to Company all
copies of such materials (in whole or in part) in his possession
or control at the request of Company or, in the absence of such a
request, upon the termination of Executive's employment with
Company. Upon termination of Executive's employment with Company,
Executive shall immediately refrain from seeking access to
Company's (a) telephonic voice mail, E-mail or message systems, (b)
computer system and (c) computer data bases and software. The
foregoing shall not prohibit Executive from using Company's public
Internet (not Intranet) site.
ARTICLE FOUR
NON-COMPETE AND NON-SOLICITATION COVENANTS
4.01 Non-Competition and Non-Solicitation. Executive
acknowledges that it may be very difficult for him to avoid using
or disclosing the Confidential Information in violation of Article
Three above in the event that he is employed by any person or
entity other than the Company in a capacity similar or related to
the capacity in which he is employed by the Company. Accordingly
for that reason, as well as independently thereof, Executive agrees
that he will not, during the term of employment with Company under
this or any subsequent agreement (oral or written) and for a period
of two (2) years after the termination of such employment,
irrespective of the time, manner or cause of such termination
(except that if Executive's termination of employment is
involuntary then the period of restriction shall be for one year
after the end of the period for which the Company has paid
compensation to Executive, or if Executive's termination of
employment is by Executive because, and Company has not, provided
the capital investment called for by the agreed to annual Business
Plan, then the restriction shall terminate on the date of termination
of employment), directly or indirectly (whether or not for
compensation or profit):
(1) Engage in any business or enterprise the nature of which
is directly competitive with that of the Company,
including, without limitation, a business or enterprise
engaged primarily in the business of distributing closed
circuit television security systems and fire or burglar
alarm systems, and parts, components or services for such
systems in the territories served by the Company's
Security Systems Division and in the channels and to the
customers served by such Division, or manufacturing of
such products if also engaged in distribution thereof
such as, Ultrak, any Pittway company and any DSC/Tried
company, (a "Prohibited Business"); or
(2) Participate as an officer, director, creditor, promoter,
proprietor, associate, agent, employee, partner,
consultant, sales representative or otherwise, or promote
or assist, financially or otherwise, or directly or
indirectly own any interest in any person or entity
involved in any Prohibited Business; or
(3) Canvas, call upon, solicit, entice, persuade, induce,
respond to, or otherwise deal with, directly or
indirectly, any individual or entity which, during
Executive's term of employment with the Company under
this or any subsequent agreement (oral or written), was
or is a customer or supplier, or proposed customer or
supplier, of the Company, for the following:
(a) to purchase (with respect to customers) or sell
(with respect to suppliers) products of the types
or kinds sold by the Company or which could be
substituted for (including, but not limited to,
rebuilt products), or which serve the same purpose
or function as, products sold by the Company (all
of which products are herein sometimes referred to,
jointly and severally, as "Prohibited Products"),
or
(b) to request or advise any such customer or
supplier to withdraw, curtail or cancel its business with
the Company; or
(4) For himself or for or through any other individual or
entity call upon, solicit, entice, persuade, induce or
offer any individual who, during Executive's term of
employment with the Company under this or any subsequent
agreement (oral or written), was an employee or sales
representative or distributor of the Company, employment
by, or representation as sales agent or distributor for,
any one other than the Company, or request or advise any
such employee or sales agent or distributor to cease
employment with or representation of the Company, and
Executive shall not approach, respond to, or otherwise
deal with any such employee or sales representative or
distributor of Company for any such purpose, or authorize
or knowingly cooperate with the taking of any such
actions by any other individual or entity.
Notwithstanding the foregoing, Executive may hire former
employees of the Company, subject to any confidentiality
and non-competition or other obligations any such
employee may have to the Company, at any time after that
date which is (i) one (1) year after the date of such
former employee's date of termination of employment with
the Company if the termination was voluntary on the part
of the employee, or (ii) the date of such former
employee's date of termination of employment with the
Company if the termination was involuntary on the part of
the employee.
4.02 Obligation independent Each obligation of each
subparagraph and provision of Section 4.01 shall be independent of
any obligation under any other subparagraph or provision hereof or
thereof.
4.03 Public Stock Nothing in Section 4.01, however, shall
prohibit Executive from owning (directly or indirectly through a
parent, spouse, child or other relative or person living in the
same household with Executive or any of the foregoing), as a
passive investment, up to 1% of the issued and outstanding shares
of any class of stock of any publicly traded company.
4.04 Business Limitation If, at the termination of
Executive's employment under this or any subsequent agreement (oral
or written) and for the entire period of twelve (12) months prior
thereto his duties and responsibilities are limited by the Company
so that he is specifically assigned to, or responsible for, one or
more divisions, subsidiaries or business units of the Company, then
subparagraphs (1) through (3) of Section 4.01 shall apply only to
any business or products which compete with the business or
products of such divisions, subsidiaries or business units.
4.05 Area Limitation If at the termination of Executive's
employment under this or any subsequent agreement (oral or written)
and for the entire period of twelve (12) months prior thereto he
has responsibility for only a designated geographic area, then
subparagraphs (1) through (3) of Section 4.01 shall apply only
within such area.
4.06 Permitted Activity For purpose of further clarification
it is agreed that Executive may be employed by an entity who or
which is (a) only a manufacturer of a Prohibited Product so long as
such manufacturer does not also act as a distributor, such as,
Ultrak, any Pittway company or any DSC/Tried company, or (b) a
dealer in Prohibited Products so long as such dealer does not also
act as a distributor; provided that in such activity Executive does
not violate the other provisions of this Article Four in his
activities for such an employer except that in his activities on
behalf of a security dealer he may contact and purchase product
from the Company's suppliers.
ARTICLE FIVE
TERMINATION
5.01 Termination of Executive for Cause. The Company shall
have the right to terminate Executive's employment at any time for
"cause." Prior to such termination, the Company shall provide
Executive with written notification of any and all allegations
constituting "cause" and the Executive shall be given five (5)
working days after receipt of such written notification to respond
to those allegations in writing. Upon receipt of the Executive's
response, the Company shall meet with the Executive to discuss the
allegations, but, thereafter, Company may take such action as it
deems appropriate, including, termination of employment.
For purposes hereof, "cause" shall mean (i) an act or acts of
personal dishonesty taken by the Executive and intended to result
in personal enrichment of the Executive, (ii) material violations
by the Executive of the Executive's obligations or duties under, or
any terms of, this Agreement, which are not remedied in a
reasonable period (not to exceed ten (10) days) after receipt of
written notice thereof from the Company, (iii) any violation by the
Executive of any of the provisions of Articles Three, or Four, (iv)
Executive commits or is arrested for, charged with, indicted for or
convicted (by trial, guilty or no contest plea or otherwise) of (a)
a felony, (b) any other crime involving moral turpitude, (c) any
violation of law which would impair the ability of the Company or
any affiliate to obtain any license or authority to do any business
deemed necessary or desirable for the conduct of its actual or
proposed business, or (d) any other criminal activity or conduct in
violation of the Company's Code of Conduct which, in the good faith
opinion of the Company, would impair the Executive's ability to
perform his duties hereunder or would impair the business or
reputation of the Company, (v) the Security Systems Division of the
Company (or the successor entity to such business) fails in any
fiscal year to meet the earnings goal therefor as set forth in the
Business Plan for such fiscal year, or (vi) Executive commits an
act, or omits to take action, in bad faith or in detriment of the
Company.
5.02 Termination of Executive Because of Executive's
Disability, Injury or Illness. The Company shall have the right to
terminate Executive's employment if Executive is unable to perform
the duties assigned to him by the Company because of Executive's
disability, injury or illness, provided however, such inability
must have existed for a total of one hundred eighty (180)
consecutive days before such termination can be made effective.
Any compensation Executive receives under any disability benefit
plan provided by Company during any period of disability, injury or
illness shall be in lieu of the compensation which Executive would
otherwise receive under Article Two during such period of
disability, injury or sickness.
5.03 Termination as a Result of Executive's Death. The
obligations of the Company to Executive pursuant to this Agreement
shall automatically terminate upon Executive's death.
5.04 Termination of Executive for any Other Reason. The
Company shall have the right to terminate Executive's employment at
any time at will without cause or reason as specified in Section
1.02 above on prior written notice to Executive as therein
specified.
5.05 Termination by Executive. Executive may terminate his
employment by the Company at any time by written notice to Company
as specified in Section 1.02 above.
5.06 Compensation on Termination. If Executive's employment
is terminated by the Company for any reason set forth in Sections
5.01, 5.02 or 5.03 above, the Company's obligation to pay
Executive's Salary and bonus pursuant to the Annual Incentive Plan
for the year in which such termination occurs shall cease on the
date on which the termination of employment occurs and shall be
prorated and accrued to the date of termination. In such case
Executive shall not be entitled to receive, unless otherwise
required by law, any subsequent Other Benefits. If Executive's
employment is terminated as set forth in Sections 5.04 or 5.05,
subject to its rights as specified in Section 1.02, the Company
shall be obligated to continue to pay to Executive his then current
Salary and Other Benefits accrued up to and including the date on
which Executive's employment is so terminated. The Special Bonus
provided for in Section 2.03 will be payable on the dates provided
in Section 2.03 regardless if termination occurs through Section
5.01. 5.02, 5.03, 5.04 or 5.05.
ARTICLE SIX
REMEDIES
6.01 Executive acknowledges that the restrictions contained in
this Agreement will not prevent him from obtaining such other
gainful employment he may desire to obtain or cause him any undue
hardship and are reasonable and necessary in order to protect the
legitimate interests of Company and that violation thereof would
result in irreparable injury to Company. Executive therefor
acknowledges and agrees that in the event of a breach or threatened
breach by Executive of the provisions of Article Three or Article
Four or Section 1.04, Company shall be entitled to an injunction
restraining Executive from such breach or threatened breach and
Executive shall lose all rights to receive any payments under
Section 5.06. Nothing herein shall be construed as prohibiting or
limiting Company from pursuing any other remedies available to
Company for such breach or threatened breach, the rights
hereinabove mentioned being in addition to and not in substitution
of such other rights and remedies. The period of restriction
specified in Article Four shall xxxxx during the time of any
violation thereof, and the portion of such period remaining at the
commencement of the violation shall not begin to run until the
violation is cured.
6.02 Survival. The provisions of this Article Six and of
Articles Three and Four shall survive the termination or expiration
of this Agreement.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Assignment. Executive and Company acknowledge and agree
that the covenants, terms and provisions contained in this
Agreement constitute a personal employment contract and the rights
and obligations of the parties thereunder cannot be transferred,
sold, assigned, pledged or hypothecated, excepting that the rights
and obligations of the Company under this Agreement may be assigned
or transferred pursuant to a sale of the business of the Company's
Security Systems Division, merger, consolidation, share exchange,
sale of substantially all of the Company's assets of its Security
Systems Division, or other reorganization described in Section 368
of the Code, or through liquidation, dissolution or otherwise,
whether or not the Company is the continuing entity, provided that
the assignee, or transferee is the successor to all or
substantially all of the assets of the Company's Security Systems
Division and such assignee or transferee assumes the rights and
duties of the Company, if any, as contained in this Agreement,
either contractually or as a matter of law.
7.02 Severability. Should any of Executive's obligations
under this Agreement or the application of the terms or provisions
of this Agreement to any person or circumstances, to any extent, be
found illegal, invalid or unenforceable in any respect, such
illegality, invalidity or unenforceability shall not affect the
other provisions of this Agreement, all of which shall remain
enforceable in accordance with their terms, or the application of
such terms or provisions to persons or circumstances other than
those to which it is held illegal, invalid or unenforceable.
Despite the preceding sentence, should any of Executive's
obligations under this Agreement be found illegal, invalid or
unenforceable because it is too broad with respect to duration,
geographical or other scope, or subject matter, such obligation
shall be deemed and construed to be reduced to the maximum
duration, geographical or other scope, and subject matter allowable
under applicable law.
The covenants of Executive in Articles Three and Four and each
subparagraph of Section 4.01 are of the essence of this Agreement;
they shall be construed as independent of any other provision of
this Agreement; and the existence of any claim or cause of action
of Executive against the Company, whether predicated on the
Agreement or otherwise shall not constitute a defense to
enforcement by the Company of any of these covenants. The
covenants of Executive shall be applicable irrespective of whether
termination of employment hereunder shall be by the Company or by
Executive, whether voluntary or involuntary, or whether for cause
or without cause.
7.03 Notices. Any notice, request or other communication
required to be given pursuant to the provisions hereof shall be in
writing and shall be deemed to have been given when delivered in
person or three (3) days after being deposited in the United States
mail, certified or registered, postage prepaid, return receipt
requested and addressed to the party at its or his last known
addresses. The address of any party may be changed by notice in
writing to the other parties duly served in accordance herewith.
7.04 Waiver. The waiver by the Company or Executive of any
breach of any term or condition of this Agreement shall not be
deemed to constitute the waiver of any other breach of the same or
any other term or condition hereof. Failure by any party to claim
any breach or violation of any provision of this Agreement shall
not constitute a precedent or be construed as a waiver of any
subsequent breaches hereof.
7.05 Continuing Obligation. The obligations, duties and
liabilities of Executive pursuant to Articles Three and Four of
this Agreement are continuing, absolute and unconditional and shall
remain in full force and effect as provided herein and survive the
termination of this Agreement.
7.06 Intentionally Blank
7.07 Attorneys Fees. In the event that Executive or Company
has been found to have violated any of the terms of Articles Three
or Four of this Agreement either after a preliminary injunction
hearing or a trial on the merits or otherwise, the losing party
shall pay the prevailing party's costs and expenses, including
attorneys fees, in enforcing the terms of Articles Three or Four
of this Agreement.
7.08 Advise New Companies. During Executive's employment with
the Company and for two (2) years thereafter, Executive will
communicate the contents of Articles Three and Four to any
individual or entity which Executive intends to be employed by,
associated with, or represent which is engaged in a business which
is competitive to the business of Company.
7.09 Captions. The captions of Articles and Sections this
Agreement are inserted for convenience only and are not to be
construed as forming a part of this Agreement.
7.10 Entire Agreement. This Agreement supersedes any and all
other agreements, written or oral, between the parties hereto with
respect to the employment of Executive by the Company and contains
all of the covenants and agreements between the parties with
respect to such employment. Each party acknowledges that no
representations, inducements, promises, or agreements, written,
oral or otherwise, have been made by any party, or anyone acting or
purporting to act on behalf of any party, which are not embodied
herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid and binding.
7.11 Modifications. This Agreement shall not be subject to
change, modification, or discharge, in whole or in part, except by
written instrument signed by the parties; provided, however, that
if any of the terms, provisions or restrictions of Articles Three
or Four are held to be in any respect unreasonable restrictions
upon Executive, then the court so holding shall reduce the
territory to which it pertains and/or the period of time in which
it operates or effect any other change to the extent necessary to
render any of said terms, provisions or restrictions enforceable.
EXECUTIVE ACKNOWLEDGES THAT HE OR SHE HAS READ AND FULLY
UNDERSTANDS EACH AND EVERY PROVISION OF THE FOREGOING AND DOES
HEREBY ACCEPT AND AGREE TO THE SAME.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
Executive Company
/s/ Xxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxxxxx
Title: Chairman
