EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (this “Employment
Agreement”)
is
made and entered into as of February 15th,
2008,
by and between Measurement Specialties, Inc., a New Jersey corporation with
corporate offices located in Hampton, Virginia (the “Employer”),
and
Xxxx XxxXxxxxx (the “Executive”).
The
Employer and the Executive are sometimes individually referred to herein as
a
“Party”
or
collectively referred to herein as the “Parties.”
(a) Effective
Date.
Subject
to the provisions of Section 3(a) hereof, this Employment Agreement shall be
effective as of February 15th,
2008
(the “Effective
Date”).
(b) Employment
At Will.
This
Agreement shall be effective and the Executive’s employment under this
Employment Agreement shall commence on the Effective Date. The Executive is
an
at-will employee of the Employer. Subject to the requirements of Section 4,
either Party may elect to terminate the Executive’s employment by 30-day written
notice to the other Party. Termination of the Executive’s employment shall not
terminate the obligations of either Party and, in particular, the Executive’s
obligations under Sections 5 and 6 shall survive termination of Executive’s
employment by either Party. This Agreement shall continue in effect until and
unless amended or terminated pursuant to Section 4.
(c) Prior
Agreements.
This
Agreement shall supersede any prior agreement relating to Executive’s employment
by the Employer except to the extent specifically provided herein.
(a) Position
and Duties.
The
Employer hereby employs the Executive and the Executive hereby accepts
employment with the Employer to serve as Group Vice President, PFG. Executive
shall perform the services and duties attendant to such office as set forth
herein or in the Bylaws of the Employer, subject in all respects to the
direction and supervision of the Board of Directors of the Employer, provided
that such services and duties are consistent with the normal and customary
responsibilities of an Officer of the Company and that Executive retains the
position of Vice President. As a Vice President, the Executive shall report
directly to the Chief Executive Officer and the Board of Directors of the
Employer. The Executive shall serve the Employer faithfully and diligently
and
shall devote his full professional time and attention (except for vacation,
sick
leave, and other excused leaves of absence) to the performance of his services
under this Agreement. The
Executive shall at all times act in good faith and in the interests of the
Employer and its affiliates.
(b) Other
Activities.
Except
upon the prior approval of the Employer, during the Employment Term, the
Executive will not: (i) accept any other employment; (ii) accept any position
as
a director or officer of any business or organization other than the Employer
and its affiliates (other than positions with a reasonable number of charitable
organizations) or (iii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that is competitive
with, or that places him or any other business or company in a competing
position to Employer and their respective affiliates.
(a) Compensation.
In
consideration of the services to be rendered by the Executive during the
Employment Term, the Employer shall pay to the Executive, and the Executive
agrees to accept from the Employer, a salary at a rate of $203,000 per year
(the
“Salary”),
payable in accordance with the Employer’s payroll practices in effect during the
course of this Employment Agreement. The Board of Directors of the Employer
or
Compensation Committee shall review the Salary on an annual basis and consider,
at its discretion, any increases therein.
(b) Annual
Bonus.
During
the Employment Term, the Executive shall be eligible for an annual bonus of
up
to 60% of his Salary based on minimum performance standards to be determined
on
an annual basis by management of Employer (the “Annual
Bonus”).
The
Employer shall pay the Executive the Annual Bonus consistent with its normal
bonus practices.
(c) Expenses.
The
Employer shall reimburse the Executive for reasonable travel and other business
expenses (“Business
Expenses”),
which
are properly documented and consistent with the Employer’s expense policies (to
include business class airfare for international travel as appropriate),
incurred by the Executive in the performance of his duties hereunder in
accordance with the Employer’s general policies, as they may be amended from
time to time during the course of this Employment Agreement.
(d) Benefits.
The
Executive shall be entitled to take up to six weeks of paid vacation per year,
subject to accrual and carryover into the next year of a maximum of one week
of
unused vacation consistent with the written vacation pay policies of the
Employer applicable to similarly-situated Executives, and the Executive shall
be
entitled to participate in the same and other employee benefits as are generally
provided to executive employees of the Employer in accordance with such terms,
conditions and eligibility requirements as may from time to time be established
by the Employer for its executive employees generally, provided, however, that
the regular medical and dental insurance made available by the Employer, or
benefits provided through self-insurance, shall be provided at no cost the
Executive. Additionally, to the extent the Executive is asked to work in other
states and incurs additional state income tax, the Employer shall cover that
incremental amount.
(e) Stock
Options.
The
Executive shall be eligible for an annual grant of options to purchase between
zero and 15,000 shares of the Employer’s Common Stock, as the Employer may
determine from time to time (the “Option”). The exercise price per share of the
Option shall be equal to the fair market value of a share of the Employer’s
Common Stock on the date of such grant, except to the extent that the Employer
determines that the exercise price shall be greater than fair market value
in
order to comply with federal tax or other law (the “Option”). The Option shall
vest over a three-year period in equal installments on each of the next three
anniversaries of the date of grant based solely on the continued employment
of
the Executive with the Employer; provided, however, that all such Options (as
well as any previously granted, un-vested options) shall become immediately
vested upon a “change in control” (as defined in the Option plan or agreement
evidencing such grant). The Option shall be granted pursuant to the Employer’s
2006 Stock Option Plan in accordance with the Employer’s normal option grant
procedures, and shall be subject to the terms, conditions and provisions thereof
and of the certificate or agreement evidencing the Option.
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(a) By
Death.
If the
Executive dies prior to the expiration of the Employment Term, the Employer
will
pay to his beneficiaries or estate in a lump sum, within thirty (30) days of
his
death (or, solely with respect to the Annual Bonus, as soon as practicable
after
determination of the Annual Bonus consistent with the Employer’s normal bonus
determination practices, (i) the unpaid portion of his Salary earned
through the date of his death, together with the amount of any accrued but
unpaid Annual Bonus which was earned in the prior completed fiscal year
(disregarding any requirement that Executive be employed on the date of payment
of the bonus), (ii) unreimbursed business expenses properly documented in
accordance with the Employer’s then existing expense policies and
(iii) accrued but unused vacation. Thereafter, the Employer’s obligations
hereunder shall terminate.
(b) By
Disability.
If the
Executive becomes “Permanently
Disabled”
(as
defined below) prior to the expiration of the Employment Term, then the Employer
shall be entitled to terminate his employment, subject to the requirements
of
applicable law, and the Executive shall be entitled to receive disability
benefits in accordance with any applicable disability policy maintained by
the
Employer as of the date of such disability. In the event of such termination,
the Employer shall pay to the Executive in a lump sum, within ten (10) days
of
his termination (or, solely with respect to the Annual Bonus, as soon as
practicable after determination of the Annual Bonus consistent with the
Employer’s normal bonus determination practices, (i) the unpaid portion of
his Salary earned through the date of termination, together with the amount
of
any accrued but unpaid Annual Bonus which was earned in the prior completed
fiscal year (disregarding any requirement that Executive be employed on the
date
of payment of the bonus), (ii) unreimbursed business expenses properly
documented in accordance with the Employer’s then existing expense policies and
(iii) accrued but unused vacation. Thereafter, the Employer’s obligations
hereunder shall terminate. For the purposes of this Employment Agreement, the
Executive shall be deemed “Permanently
Disabled”
when
the Board of Directors of Employer determines, in good faith, that the Executive
has suffered a physical or mental disability that prevents the Executive from
performing the essential duties of his position with reasonable accommodations
as may be required by law: (i) for a period of ninety (90) consecutive calendar
days; or (ii) for an aggregate of one hundred twenty (120) business days in
any
twelve (12) month period.
3
(1) The
Executive may terminate, without liability, his employment for “Good
Reason”
(as
defined below) upon advance written notice of thirty (30) days to the Employer.
The Employer may terminate the Executive “Other
than for Cause”
(as
defined below) upon advance written notice of thirty (30) days to the Executive.
Upon a termination of Executive’s employment Other than for Cause or for Good
Reason, Executive shall be entitled to receive from the Employer the following
sums, each payable within the time frame set forth herein: (i) in a lump sum
the
amount of Executive’s Salary accrued through the date of termination and unpaid,
together with the amount of any accrued but unpaid Annual Bonus earned in the
prior completed fiscal year, or a pro-rata portion of the accrued annual bonus
versus the total target bonus for the current fiscal year (disregarding any
requirement that Executive be employed on the date of payment of the bonus),
to
be paid within twenty (20) business days after the date of termination (or,
solely with respect to the Annual Bonus, as soon as practicable after
determination of the Annual Bonus consistent with the Employer’s normal bonus
determination practices), (ii) subject to Section 4(c)(2), an additional amount
equal to 100% of Executive’s Annual Salary as in effect at the date of
termination, to be paid in equal installments over the course of one year
following the date of termination in accordance with the Employer’s payroll
practices then in effect, beginning with the first payroll payment date
beginning after the date of termination, (iii) the amount of any outstanding
business expenses that were incurred by Executive prior to the date of
termination but not reimbursed as of such date, to be paid in a lump sum within
twenty (20) business days after the date of termination, and (iii) a lump
sum payment for accrued but unused vacation to be paid within twenty (20)
business days after the date of termination. Thereafter, except as specifically
excluded from the Release (as hereinafter defined), the Employer’s obligations
hereunder shall terminate.
(2) The
payments and benefits provided for in Section 4(c)(1)(ii) are contingent on
(i)
the receipt by the Employer of a release (the “Release”)
executed by the Executive in the form attached as Exhibit
A
(which
is to be executed and delivered by the Executive following Executive’s
termination), and (ii) the lapse of the seven day revocation period set forth
in
the Release without receipt by the Employer of a notice of revocation. The
Executive acknowledges that to the extent the Employer does not receive a
Release in the form attached as Exhibit
A
executed
by Executive on or within twenty-one (21) days after Executive’s termination or
if the Release is revoked by the Executive during the seven day revocation
period, the Executive shall not be entitled to the payments and benefits
provided for in Section 4(c)(1)(ii). The Executive acknowledges and agrees
that,
to the extent he delivers the Release and accepts the payments and benefits
provided for in Section 4(c)(1)(ii), the payments and benefits provided for
in
Section 4(c)(1)(ii) of this Agreement are the sole and exclusive remedies of
the
Executive against the Employer and its affiliates if the employment of the
Executive is terminated pursuant to this Section 4(c); provided,
however,
that
the Executive shall retain all of the claims excluded in the Release.
(3) Upon
a
termination of Executive’s employment by the Employer Other than for Cause (or
by the Executive for Good Reason), a pro rata portion of the annual installment
of the Option otherwise vesting within a 12 month window of the period in which
the termination of the Executive’s employment occurs shall be deemed to have
vested as of the date of termination in proportion to the percentage of the
fiscal year for which the Executive was actually employed by the
Employer.
4
(4) For
the
purposes of this Employment Agreement, “Good
Reason”
shall
exist for a period of sixty (60) days after the occurrence of any of the
following events: (i) the Employer shall continue to be in default of any
obligations under this Employment Agreement after the Executive has given the
Employer notice of such default and an opportunity to cure such default within
ten (10) days of receipt of such notice; (ii) there is any material diminution
in the title, job responsibilities, authority, powers or duties of the
Executive, provided, however, that a change in the Executive’s reporting
structure shall not constitute a diminution of the Executive’s title, job
responsibilities, authority, powers or duties; (iii) the Employee’s required
place of employment is relocated from Xxxxx, PA; or (iv) there is any reduction
of Executive’s Annual Bonus target percentage. If the Executive elects not to
terminate his employment within sixty (60) days after the occurrence of any
event specified above, the Executive shall be deemed to have consented to the
occurrence of such event and any subsequent termination by the Executive of
his
employment which he claims to be result thereof shall nonetheless be deemed
a
termination by the Executive other than for Good Reason.
(5) “Other
than for Cause”
shall
mean any termination by the Employer of the Executive’s employment other than
pursuant to Section 4(b) or 4(e). In the event that this Employment Agreement
is
not renewed by the Employer upon the expiration of the Initial Term or any
Renewal Term pursuant to Section 1(b) hereof, such non-renewal shall be deemed
a
termination of the Executive’s employment Other than for Cause and shall entitle
the Executive to the payments and benefits set forth in Section
4(c)(1).
(d) By
the
Executive other than for Good Reason.
If the
Executive terminates his employment for any reason other than for Good Reason
then all the Employer’s obligations hereunder shall immediately terminate,
except that the Employer shall pay to the Executive in a lump sum, within ten
(10) business days (or, solely with respect to the Annual Bonus, as soon as
practicable after determination of the Annual Bonus consistent with the
Employer’s normal bonus determination practices, (i) the unpaid portion of
his Salary earned through the date of termination, together with the amount
of
any accrued but unpaid Annual Bonus earned in the latest completed fiscal year
(disregarding any requirement that Executive be employed on the date of payment
of the bonus), (ii) accrued but unused vacation and (iii) unreimbursed
business expenses properly documented in accordance with the Employer’s then
existing expense policies incurred through the date of such
termination.
(e) By
the
Employer for Cause.
If the
Employer terminates the Executive for Cause, then all of the Employer’s
obligations hereunder shall immediately terminate, except that the Employer
shall pay to the Executive, within ten (10) business days, the portion of his
Salary earned through the date of termination and unreimbursed Business Expenses
properly documented in accordance with the Employer’s then existing expense
policies incurred through the date of such termination. For purposes of this
Employment Agreement, “Cause”
shall
mean: (i) any act or omission that constitutes a material breach by the
Executive of any of his obligations under this Employment Agreement or any
material written policy of the Employer or any of its affiliates of which the
Executive has been given prior notice; (ii) the failure or refusal by the
Executive to follow any lawful reasonable direction of the Chief Executive
Officer or the Board of Directors of the Employer that is material and is
consistent with the Executive’s obligations under this Employment Agreement; or
(iii) the conviction of the Executive (including a nolo
contendere
or
guilty plea) of a felony or a crime involving fraud, misappropriation or
dishonesty. Notwithstanding the foregoing, the occurrence of an event described
in clause (i) or (ii) above shall not constitute Cause unless and until the
Employer has provided the Executive with written notice of the event and action
required to remedy the same, including a description and details of same, and
(A) the Executive has failed to remedy the same within ten (10) business days
of
such notice, or (B) if such conduct is not remediable by diligent efforts within
ten (10) business days, but the Executive has commenced diligent action to
remedy such situation within ten (10) business days, the Executive has failed
to
remedy the same with twenty (20) business days of such notice.
5
(f) Termination
of Employment.
For
purposes of this Agreement, any references to a termination of employment or
to
the time at which the Executive terminates his employment will be construed
consistent with a “separation from service” within the meaning of Section 409A
of the Code.
(a) Defined.
For
purposes of this Employment Agreement, “Proprietary
Information”
shall
mean all proprietary, secret or confidential information pertaining to the
business and affairs of the Employer and its respective affiliates (whether
or
not such information is in written form). Without limiting the generality of
the
foregoing, Proprietary Information shall include: (i) client lists, lists of
potential clients and details of agreements with clients; (ii) acquisition,
expansion, marketing, financial and other business information, projections
and
plans; (iii) research and development; (iv) computer programs and computer
software; (v) sources of supplies and supplier lists; (vi) identity of
specialized consultants and contractors and Proprietary Information that is
developed or learned by the Executive in the course of his relations with the
Employer and its affiliates; (vii) purchasing, operating and other cost data;
(viii) special client needs, cost and pricing data; (ix) employee information;
(x) all Proprietary Rights, which shall mean the following: (A) any and all
patents and patent applications (including all provisional, divisions,
continuations, continuations in part, and reissues), patentable inventions,
and
business methods; (B) all registered and unregistered fictional business names,
trade names, trademarks, service marks, and registered domain names and all
applications with respect to any of the foregoing; (C) registered and
unregistered copyrights in both published works and unpublished works and
copyrightable subject matter, including software; and (D) all know-how, trade
secrets, customer lists, confidential information, technical information, data,
process technology, plans, drawings, and blueprints.); and (xi) all data,
concepts, ideas, findings, discoveries, developments, programs, designs,
inventions, improvements, methods, practices and techniques, whether or not
patentable, relating to present and planned future activities and the products
and services of the Employer and their respective affiliates. Proprietary
Information also includes information recorded in manuals, memoranda,
projections, minutes, plans, drawings, designs, formula books, specifications,
computer programs and records, whether or not legended or otherwise identified
as Proprietary Information, as well as information that is the subject of
meetings and discussions and not so recorded; provided,
however,
that
Proprietary Information shall not include any information which (i) is or
becomes generally available to the public other than as a result of disclosure
by the Executive, (ii) was or becomes available to the Executive on a
non-confidential basis from a third party, which source is not bound by a
confidentiality agreement or other duty of confidentiality with respect to
such
Proprietary Information, or (iii) disclosure was specifically authorized in
writing by the Employer. In the event that the Executive becomes legally
compelled (by oral questions, interrogatories, requests for information or
documents, subpoena, criminal or civil investigative demand or other legal
process or requirement) to disclose any Proprietary Information, the Executive
shall be entitled to disclose any Proprietary Information he is legally
compelled to disclose and will provide the Employer with prompt written notice
of such request or requirement so that the Employer, at the Employer’s expense,
may seek a protective order or other appropriate remedy or relief and/or waive
compliance with the provisions of this Employment Agreement prior to such
disclosure and consult with the Executive to a reasonable extent on the
advisability of taking steps to resist or narrow the scope of such request
or
requirement.
6
(b) General
Restrictions on Use.
The
Executive agrees to hold all Proprietary Information in strict confidence and
trust for the sole benefit of the Employer and its affiliates, as the case
may
be, or, with regard to Proprietary Information that is the property of a
customer or client of the Employer, for the sole benefit of such entity, and
to
not, directly or indirectly, disclose, use, copy, publish, summarize, or remove
from the premises of the Employer or its affiliates, without the prior written
consent of the Employer, any Proprietary Information except during the
Employment Term to the extent necessary to carry out the Executive’s
responsibilities under this Employment Agreement.
(c) No
Conflict with Other Obligations.
The
Executive hereby represents to Employer that he is not a party to, or obligated
by, any restrictive covenant or any other obligation or agreement that would
interfere with the performance of his obligations under this Employment
Agreement or limit in any way his ability to render services to Employer or
their respective affiliates.
(1) The
Executive, as part of the consideration for this Employment Agreement and for
his continued employment by the Employer, hereby assigns to the Employer, to
the
extent permitted by applicable law, the entire right, title, and interest in
and
to any and all inventions, know-how, technology, copyrights, trade secrets,
improvements, plans and specifications and any and all proprietary rights of
any
nature whatsoever: (i) which he alone, or in conjunction with others, may make,
conceive or develop while he is employed by the Employer; and (ii) which relate
to or derive from any subject matter or problem with respect to which the
Executive shall have become informed by reason of his relations with the
Employer or any affiliate, or to any product or process involved in the business
of the Employer or any affiliate.
(2) The
Executive further agrees that he will promptly disclose fully to the Employer
such inventions, trade secrets, improvements, plans and specifications and
will
at any time render to the Employer such reasonable cooperation and assistance
(excluding financial assistance) as the Employer may deem to be advisable in
order to obtain copyrights or patents, as the case may be, on or otherwise
perfect or defend the Employer’s rights in each such invention, trade secret,
improvement, plan or specification, including, but not limited to, the execution
of any and all applications for copyrights or patents, assignments of copyrights
or patents and other instruments in writing which the Employer, its officers
or
attorneys may reasonably deem necessary or desirable, and the aforesaid
obligation shall be binding on the assigns, executors, administrators and other
legal representatives of the Executive.
7
(3) The
Executive hereby constitutes and appoints the Employer, its successors and
assigns, the true and lawful attorney-in-fact of the Executive with full power
of substitution, for him and in his name and xxxxx or otherwise, but at the
sole
expense and on behalf of and for the benefit of the Employer, its successors
and
assigns, to institute and prosecute from time to time, any proceedings at law,
in equity or otherwise, that the Employer, its successors or assigns, may
reasonably deem proper in order to assert or enforce any claim, right, or title
of any kind in and to the inventions, trade secrets and improvements described
under this Section 5(d), to defend and compromise any and all actions, suits
or
proceedings in respect of any of said inventions, trade secrets and improvements
and, generally to do any and all such acts and things in relation thereto as
the
Employer, its successors and assigns, reasonably shall deem advisable,
including, but not limited to, execution of any and all applications,
assignments and instruments contemplated under this Section 5(d). The Executive
declares that the appointment hereby made and the powers hereby granted are
coupled with an interest and shall be irrevocable by the Executive.
(a) Competition.
During
the Restricted Period (as defined below), the Executive will not, directly
or
indirectly, work as an employee, consultant, agent, principal, partner, manager,
stockholder, officer, director or in any other capacity, for any person or
entity inside or outside the United States of America who or which is engaged
in
the business of designing and manufacturing sensors and sensor-based products
competitive with the Company at the time of termination. The restriction
in the preceding sentence shall not apply to ownership of less than five percent
(5%) of the issued and outstanding capital of stock of any corporation that
is
publicly traded and for which capital stock selling and asking prices are
published from time to time in The Wall Street Journal. The “Restricted
Period”
shall
mean the Employment Term plus (i) two (2) years following the termination
thereof by the Executive other than for Good Reason or by the Employer for
Cause, or (ii) (1) year following the termination thereof for any other reason.
(b) Solicitation.
During
the Employment Term, and for a period of two (2) years following the termination
thereof for any reason, the Executive will not, directly or indirectly, either
for himself, or on behalf of any other business enterprise, directly or
indirectly, under any circumstance (i) solicit for employment any person who
is
employed by the Employer or any of its subsidiaries during the period of the
Executive’s service to the Employer, (ii) induce any person who is employed by
the Employer to terminate his or her employment with the Employer or any of
its
subsidiaries, or (iii) call on or solicit any person or entity who or which
is a
customer of the Employer or any of its subsidiaries.
(c) Enforcement.
It is
expressly agreed by the Executive that the nature and scope of each of the
provisions set forth above in this Section 6 are reasonable and necessary.
If,
for any reason, any aspect of the above provisions as it applies to the
Executive is determined by a court of competent jurisdiction to be unreasonable
or unenforceable, the provisions shall only be modified to the minimum extent
required to make the provisions reasonable and/or enforceable, as the case
may
be.
8
(d) Survival.
This
Section 6 shall survive the expiration or termination of this Employment
Agreement for any reason.
7. Assignment.
(a) No
Assignment by the Executive.
Neither
this Employment Agreement nor any right or interest hereunder shall be
assignable by the Executive, his beneficiaries, or legal representatives without
the Employer’s prior written consent; provided,
that
nothing in this Section 7(a) shall preclude the Executive from designating
a
beneficiary to receive, upon his death, any benefit payable hereunder, or the
executors, administrators, or other legal representatives of the Executive’s
estate from assigning any rights hereunder to the person or persons entitled
thereto.
(b) Assignment
to Receive Payments.
Except
as otherwise required by law, without the Employer’s prior written consent, no
right of the Executive to receive payments under this Employment Agreement
shall
be subject to anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge, or hypothecation, or to exclusion, attachment,
levy, or similar process or assignment by operation of law, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void, and
of
no effect.
8. “Key
Man” Life and Disability Insurance.
The
Employer may, in its discretion, apply for and procure, in its own name and
for
its own benefit, life insurance and disability insurance with regard to the
Executive, in any amount or amounts that the Employer may deem advisable. In
connection therewith, the Executive shall submit to any reasonable medical
or
other examination, and execute and deliver any application or other instrument,
as reasonably requested by the Employer. Nothing herein shall obligate the
Employer to establish, maintain or continue any such insurance arrangement.
9. Notices.
All
notices, requests, claims, demands, and other communications under this
Employment Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such address for a party as shall
be
specified by like notice):
If
to the
Employer:
Measurement
Specialties, Inc.
0000
Xxxxx Xxx
Xxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxxx, President and CEO
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If
to the
Executive:
[INSERT
ADDRESS]
10. Entire
Agreement.
The
terms of this Employment Agreement are intended by the parties to be the final
expression of their agreement with respect to the employment of the Executive
by
the Employer and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Employment
Agreement shall constitute the complete and exclusive statement of its terms
and
that no extrinsic evidence may be introduced in any judicial, administrative,
or
other legal proceeding involving this Employment Agreement.
11. Amendments;
Waivers.
This
Employment Agreement may not be modified, amended, or terminated except by
an
instrument in writing, signed by the Executive and by a duly authorized
representative of the Employer other than the Executive. By an instrument in
writing similarly executed, either party may waive compliance by the other
party
with any provision of this Employment Agreement that such other party was or
is
obligated to comply with or perform; provided
that
such waiver shall not operate as a waiver of, or estoppel with respect to,
any
other or subsequent failure. No failure to exercise and no delay in exercising
any right, remedy, or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, or power hereunder
preclude any other or further exercise thereof, or the exercise of any other
right, remedy, or power provided herein, or by law or in equity.
12. Confidentiality.
The
Executive agrees that the terms and conditions of this Employment Agreement
are
confidential and shall not be disclosed by the Executive to any third parties,
other than the Executive’s immediate family members, lawyers, accountants and
other professional advisors, unless such disclosure is required by
law.
13. Governing
Law.
The
validity, interpretation, enforceability, and performance of this Employment
Agreement shall be governed by and construed in accordance with the law of
the
State of Virginia, without giving effect to conflict of laws
principles.
14. Consent
to Jurisdiction.
Without
in any manner limiting the provisions of this Employment Agreement, any action
or proceeding seeking to enforce any provision of, or based on any right arising
out of, this Employment Agreement may be brought exclusively in the courts
of
the State of Virginia, or, if it has or can acquire jurisdiction, in the United
States District Court for the district of Virginia, and each of the parties
consents to the exclusive 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 any party anywhere in the world. The
foregoing shall not limit the rights of any party to bring the legal action
or
proceeding or to obtain execution of judgment in any appropriate jurisdiction.
Each of the parties hereto further agrees that final judgment against it in
any
such action or proceeding shall be conclusive and may be enforced by any other
jurisdiction within or outside the United States of America by suit on the
judgment, a certified or exemplified copy of which shall be conclusive evidence
thereof.
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15. Remedies.
Except
as otherwise provided in this Employment Agreement and in the Release attached
as Exhibit
A
hereto
(which is the form of Release to be executed and delivered by Executive
following Executive’s termination), (i) none of the remedies provided in this
Employment Agreement are the exclusive remedy of a party for breach of this
Employment Agreement and (ii) the parties hereto shall have the right to seek
any other remedy in law or equity, including without limitation an action for
damages for breach of contract.
16. Additional
Executive Acknowledgment.
The
Executive acknowledges: (i) that he has been advised by Employer to consult
with
independent counsel of his own choice concerning this Employment Agreement
and
has been provided the opportunity to do so; and (ii) that he has read and
understands the Employment Agreement, is fully aware of its legal effect, and
has entered into it freely based on his own judgment.
17. Binding
Effect.
This
Employment Agreement shall be binding upon and shall inure to the benefit of
the
Employer and its respective successors and assigns, but the rights and
obligations of the Executive are personal and may not be assigned or delegated
without the Employer’s prior written consent.
18. Invalid
Provisions.
The
invalidity or unenforceability of a particular provision of this Employment
Agreement shall not affect the enforceability of any other provisions hereof
and
this Employment Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
19. Counterparts;
Facsimile.
This
Employment Agreement may be executed by facsimile and in two or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same instrument.
20. Delay
of Payment.
Notwithstanding any other provision of this Agreement, if the Executive is
a
“specified employee,” within the meaning of Section 409A of the Code to the
extent necessary to comply with Section 409A of the Code, no payments or
benefits (which are not otherwise exempt) may be paid or provided hereunder
before the date which is six months after the Executive’s separation from
service or, if earlier, his death. The amounts that would have otherwise been
required to be paid, and the benefits that would have otherwise have been
provided during such six months or, if earlier until Executive’s death, shall be
paid to the Executive in one lump sum cash payment as soon as administratively
practicable after the date which is six months after the Executive’s separation
from service or, if earlier, after the Executive’s death. Any other payments
scheduled to be made or benefits scheduled to be provided after such period
shall be made and provided at the times otherwise designated in this Agreement
disregarding the delay of payment for the payments and benefits described in
this Section 20.
21. Section
409A.
This
Agreement is intended to comply with the applicable requirements of Section
409A
of the Code and shall be construed and interpreted in accordance therewith.
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MEASUREMENT SPECIALTIES, INC.
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By:
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Name:
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Xxxxx
Xxxxxxx
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Title:
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President
and CEO
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EXECUTIVE
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Xxxx
XxxXxxxxx
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EXHIBIT
A
FORM
OF GENERAL RELEASE
FOR
AND
IN CONSIDERATION OF the severance payments provided for in Section 4(c)(1)(ii)
of the Employment Agreement entered into as of February 15, 2007 (the
“Employment
Agreement”),
by
and between Xxxx
XxxXxxxxx (the “Executive”)
and
Measurement Specialties, Inc. (the “Employer”),
and
pursuant to Section 4 of the Employment Agreement, the Executive agrees, on
behalf of himself, his heirs, executors, administrators and assigns, to release
and discharge the Employer, its affiliates and their current and former
officers, directors, employees, agents, owners, subsidiaries, divisions,
affiliates, parents, successors and assigns (the “Released
Parties”)
from
any and all manner of actions and causes of action, suits, debts, dues,
accounts, bonds, covenants, contracts, agreements, judgments, charges, claims,
and demands whatsoever (“Claims”)
which
the Executive, his heirs, executors, administrators and assigns have or may
have
against the Released Parties or any of them from the beginning of the world
to
the date hereof, arising out of any and all matters relating to the Executive’s
employment by the Employer and the cessation thereof, and all other matters
arising under any federal, state, or local statute, rule, or regulation or
principle of contract law or common law relating to Executive’s employment with
the Employer or the cessation thereof, including but not limited to, Title
VII
of the Civil Rights Act of 1964, as amended,
42
U.S.C. § 2000e et seq.,
the
Age Discrimination in Employment Act of 1967, as amended,
29
U.S.C. § 621 et seq.,
the
Americans with Disabilities Act of 1990, as amended,
42
U.S.C. § 12101 et seq.,
the
Family and Medical Leave Act, Section 1981 of the Civil Rights Act of 1866,
the
Fair Labor Standards Act, the Virginians With Disabilities Act, the Virginia
Human Rights Act, the Virginia Whistleblowers Statute, and any other equivalent
state or local statute, but specifically excluding any Claims with respect
to
amounts due and owing to the Executive pursuant to the terms and conditions
of
Section 4(c) of the Employment Agreement or under any other employee benefit
plan of the Released Parties.
It
is
understood that nothing in this General Release is to be construed as an
admission on behalf of the Released Parties of any wrongdoing with respect
to
the Executive, any such wrongdoing being expressly denied.
The
Executive represents and warrants that he fully understands the terms of this
General Release, that the Employer has advised the Executive to seek the advice
of independent counsel of his own choosing and that he has been provided the
opportunity to do so, and that he knowingly and voluntarily, of his own free
will without any duress, being fully informed and after due deliberation,
accepts its terms and signs the same as his own free act. The Executive
understands that as a result of executing this General Release, he will not
have
the right to assert that the Employer violated any of his rights in connection
with his employment.
The
Executive affirms that he has not filed, and agrees not to initiate or cause
to
be initiated on his behalf, any complaint, charge, claim, or proceeding against
the Released Parties before any federal, state, or local agency, court or other
body relating to his employment and the cessation thereof; provided, however,
nothing in this Release shall preclude the Executive from filing a charge under
the Age Discrimination in Employment Act with the Equal Employment Opportunity
Commission or participating in an investigation, hearing or proceeding conducted
by the Equal Employment Opportunity Commission regarding a charge under that
statute, but the intent of this Release is to waive and release the Executive’s
right to recover damages through any such charge, investigation, hearing or
proceedings.
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The
Executive may take up to 21 days to consider whether to execute this General
Release. Alternatively, the Executive, having had the opportunity to seek the
advice of counsel, may knowingly waive the remainder of the 21-day period he
had
from the date of termination of the Employment Agreement to consider whether
to
execute this General Release. Upon the Executive’s execution of this General
Release, he will have 7 days after execution to revoke it. In the event of
revocation, the Executive must present written notice of revocation to the
CEO
of the Employer. If 7 days pass without receipt of such notice of revocation,
this General Release shall become binding and effective on the 8th
day.
This
General Release shall be governed by the laws of the State of Virginia without
giving effect to its conflict of laws principles.
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[NAME]
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14