EXHIBIT 10.b
TERMINATION AGREEMENT
THIS AGREEMENT, made and entered into as of May 1, 1998 is by and
between TECH-SYM CORPORATION, a Nevada corporation (the "Company"), and J.
XXXXXXX XXXX (the "Employee").
W I T N E S S E T H:
WHEREAS, Employee presently serves the Company or one or more of its
subsidiaries as a senior executive officer; and
WHEREAS, the services of Employee and Employee's business experience
and knowledge are of great value to the Company; and
WHEREAS, the Company considers it prudent to enter into this
Agreement with employee in order to ensure Employee's continued services and
managerial guidance, to receive the benefits of Employee's business knowledge
and experience and to define the nature and terms of Employee's termination
benefits;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements herein contained, the Company and Employee
hereby agree as follows:
1. TERM. This Agreement shall commence on the date hereof and shall
continue until December 31, 2000; provided, however, that commencing on January
1, 2000, and on each January 1st thereafter, the term of this Agreement shall
automatically be extended for one additional year unless at least 90 days prior
to such January 1st date, the Company shall have given written notice to
Employee of the termination of this Agreement as of the December 31 next
following the January 1st in respect of which such notice is given by the
Company; and provided further, that this Agreement shall automatically terminate
in all events on the earlier of Employee's death or 65th birthday if it has not
been earlier terminated as provided above. Termination of this Agreement after a
change in control of the Company shall not alter or impair the rights of
Employee arising hereunder prior to such termination.
2. CHANGE IN CONTROL. For purposes of this Agreement, a "change in control
of the Company" shall be deemed to have occurred upon, and shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 25% or more
of either (i) the then outstanding shares of Common Stock of the Company
(the "Outstanding Company Common Stock") or (ii) the combined voting power
of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); PROVIDED, HOWEVER, that the following acquisitions shall not
constitute a change of control: (w) any acquisition directly from the
Company (excluding an acquisition by virtue of the exercise of a
conversion privilege), (x) any acquisition by the Company, (y) any
acquisition by any employee benefit plan(s) (or related trust(s))
sponsored or maintained by the Company or any corporation controlled by
the Company or (z) any acquisition by any corporation pursuant to a
reorganization, merger or consolidation, if, immediately following such
reorganization, merger or consolidation, the conditions described in
clauses (i), (ii) and (iii) of subsection (c) of this Section 2 are
satisfied;
(b) Individuals who, as of the date hereof, constitute the Company's
Board of Directors (the "Incumbent Board"), cease for any reason to
constitute at least a majority of the Company's Board of Directors (the
"Board"); PROVIDED, HOWEVER, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election
by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either (i) an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act), or an actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board or (ii) a plan or agreement to replace a majority of
the members of the Board then comprising the Incumbent Board; or
(c) Approval by the stockholders of the Company of a reorganization,
merger or consolidation, in each case unless, immediately following such
reorganization, merger or consolidation, (i) more than 60% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or consolidation
and the combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of directors
is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation in substantially the same
proportions as their ownership, immediately prior to such reorganization,
merger or consolidation, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (ii) no Person
(excluding the Company, any employee benefit plan(s) (or related trust(s))
of the Company and/or its subsidiaries or such corporation resulting from
such reorganization, merger or
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consolidation and any Person beneficially owning, immediately prior to
such reorganization, merger or consolidation, directly or indirectly, 25%
of more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 25% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such reorganization, merger
or consolidation or the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors and (iii) at least a majority of the members of the
board of directors of the corporation resulting from such reorganization,
merger or consolidation were members of the Incumbent Board at the time of
the execution of the initial agreement providing for such reorganization,
merger or consolidation; or
(d) Approval by the stockholders of the Company of (i) a complete
liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company,
other than to a corporation, with respect to which immediately following
such sale or other disposition, (A) more than 60% of, respectively, the
then outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other
disposition in substantially the same proportion as their ownership,
immediately prior to such sale or other disposition, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the
case may be, (B) no person (excluding the Company and any employee benefit
plan (or related trust) of the Company or such corporation and any Person
beneficially owning, immediately prior to such sale or other disposition,
directly or indirectly, 25% or more of the Outstanding Company Common
Stock or Outstanding Company Voting Securities, as the case may be)
beneficially owns, directly or indirectly, 25% or more of, respectively,
the then outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors and
(C) at least a majority of the members of the board of directors of such
corporation were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board providing for
such sale or other disposition of assets of the Company.
3. TERMINATION OF EMPLOYMENT. If a change in control of the Company occurs
during the Term while Employee is employed by the Company, Employee shall be
entitled to the benefits provided in Section 4 hereof if during the Termination
Period (as hereinafter defined) Employee becomes disabled or Employee's
employment is terminated, unless such termination is (a) due to Employee's
death, (b) by the Company for Cause or Employee's Disability or (c) by Employee
for other than Good Reason. For
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purposes of this Agreement, the "Termination Period" shall mean the period of
time beginning with the change in control of the Company and ending on the
earlier to occur of Employee's 65th birthday or the third anniversary of such
change in control of the Company. If Employee's employment is terminated prior
to both (x) a change in control of the Company and (y) May 1, 2000 (such period
being the "Alternative Termination Period") either by the Company other than (1)
for Cause or (2) Employee's Disability or by Employee for a Good Reason, then
Employee shall be entitled to the benefits provided in Section 4(iv) hereof.
(i) DISABILITY. If, as a result of Employee's incapacity due to physical
or mental illness, Employee shall have been absent from Employee's duties
with the Company on a full-time basis for 150 consecutive calendar days,
and within 30 days after written Notice of Termination (as defined
hereinafter) Employee shall not have returned to the full-time performance
of Employee's duties, the Company may terminate Employee's employment for
"Disability"; provided, however, a termination of Employee's employment
for Disability for purposes of this Agreement shall not alter or impair
Employee's rights as a "disabled employee" under any of the Company's
employee benefit plans.
(ii) CAUSE. The Company may terminate Employee's employment for Cause. For
the purposes of this Agreement, the Company shall have "Cause" to
terminate Employee's employment hereunder only upon (A) the willful and
continued failure by Employee to perform substantially Employee's duties
with the Company, other than any such failure resulting from Employee's
incapacity due to physical or mental illness, which continues unabated
after a demand for substantial performance is delivered to Employee by the
Board that specifically identifies the manner in which the Board believes
that Employee has not substantially performed Employee's duties or (B)
Employee willfully engages in gross misconduct materially and demonstrably
injurious to the Company. For purposes of this paragraph, an act or
failure to act on Employee's part shall be considered "willful" if done or
omitted to be done by Employee otherwise than in good faith and without
reasonable belief that Employee's action or omission was in the best
interest of the Company. Notwithstanding the foregoing, Employee shall not
be deemed to have been terminated for Cause unless and until there shall
have been delivered to Employee a copy of a resolution duly adopted by the
affirmative vote of not less than 75% of the entire membership of the
Board, including at least 50% of the "continuing directors,"as hereinafter
defined, at a meeting of the Board called and held for the purpose (after
reasonable notice to Employee and an opportunity for Employee, together
with Employee's counsel, to be heard before the Board), finding that in
the good faith opinion of the Board Employee was guilty of conduct set
forth in clauses (A) or (B) of the first sentence of this subsection (ii)
and specifying the particulars thereof in reasonable detail. The term
"continuing director" shall mean an individual who was a member of the
Board elected by the public stockholders prior to the time of the
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change in control of the Company or the individual recommended to succeed
a continuing director by a majority of continuing directors.
(iii) GOOD REASON. Employee may terminate Employee's employment for Good
Reason. For purposes of this Agreement "Good Reason" shall mean:
(A) without Employee's express written consent, Employee is assigned
any duties inconsistent with Employee's positions, duties,
responsibilities and status with the Company immediately prior to a
change in control of the Company, or a change in Employee's
reporting responsibilities, titles or offices as in effect
immediately prior to a change in control of the Company, or any
removal of Employee from or any failure to re-elect or appoint
Employee to any of such responsibilities, titles, offices or
positions, except in connection with the termination of Employee's
employment for Cause or Disability, or as a result of Employee's
death, or by Employee for other than Good Reason;
(B) a reduction in Employee's annual rate of base salary as in
effect immediately prior to the change in control of the Company or
as the same may be increased from time to time thereafter (referred
to hereinafter as the "Base Salary");
(C) a failure by the Company to continue the Company's Incentive
Bonus Plan as the same may be modified from time to time, but
substantially in the form in effect immediately prior to the change
in control of the Company (the "Bonus Plan"), or a failure by the
Company to continue Employee as a participant in the Bonus Plan in
at least the same amount (the "Bonus Amount") as the average annual
amount paid or payable to Employee with respect to the two full
calendar years immediately preceding a change in control of the
Company or with respect to such shorter period during which the
Employee has been employed by the Company (bonus amounts related to
less than a full year shall be annualized);
(D) the failure by the Company to continue in effect any other
employee benefit or compensation plan program or policy, in which
Employee is participating immediately prior to a change in control
of the Company, unless the Company establishes such new plans,
programs or policies as is necessary to provide Employee with
substantially comparable benefits; the taking of any action by the
Company not required by law that would adversely affect Employee's
participation in or reduce Employee's benefits under any of such
plans, programs or policies or deprive Employee of any fringe
benefit enjoyed by Employee immediately prior to the change in
control of the Company;
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(E) the relocation of the Company's principal executive offices to a
location outside the greater Houston area, or the Company's
requiring Employee to relocate anywhere other than the location of
the Company's principal executive offices except for required travel
on the Company's business to an extent substantially consistent with
Employee's business travel obligations immediately prior to the
change in control of the Company;
(F) the amendment, modification or repeal of any provision of the
Certificate of Incorporation, as amended, or the Bylaws of the
Company which was in effect immediately prior to such change in
control of the Company, if such amendment, modification or repeal
would materially adversely effect Employee's right to
indemnification by the Company;
(G) the failure of the Company to obtain the assumption of the
agreement to perform this Agreement by any successor as contemplated
in Section 6 hereof; or
(H) any purported termination of Employee's employment that is not
effected pursuant to a Notice of Termination satisfying the
requirements of subparagraph (iv) below and, if applicable,
subparagraph (ii) above; and for purposes of this Agreement, no such
purported termination shall be effective.
Employee's right to terminate his employment for Good Reason
hereunder shall not be affected by his incapacity due to a physical or
mental illness nor shall Employee's continued employment following any
circumstance that constitutes Good Reason hereunder, regardless of the
length of such continued employment, constitute a consent to or a waiver
of Employee's rights hereunder with respect to such circumstance.
With respect to a termination of Employee's employment during the
Alternative Termination Period, "Good Reason" shall be determined as
provided in Clauses (A) through (H) above, but by substituting "the
Employee's termination of employment" for "the change in control of the
Company" where applicable in such clauses.
(iv) NOTICE OF TERMINATION. Any termination by the Company pursuant to
subparagraphs (i) or (ii) above or by Employee pursuant to subparagraph
(iii) above, shall be communicated by written Notice of Termination to the
other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice that shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of Employee's employment under the provision so indicated.
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(v) DATE OF TERMINATION. "Date of Termination" shall mean (A) if Employee
is terminated for Disability, 30 days after Notice of Termination is
given, provided that Employee shall not have returned to the performance
of Employee's duties on a full-time basis during such 30-day period, (B)
if Employee's employment is terminated pursuant to subparagraph (iii)
above, the date specified in the Notice of Termination and (C) if
Employee's employment is terminated for any other reason, the date on
which a Notice of Termination is given; provided, however, that if within
10 days after any Notice of Termination is given, the party receiving such
Notice of Termination notifies the other party in writing that a dispute
exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding and final arbitration award or by a
final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been
perfected); and provided further, that for purposes of this Section 3,
notwithstanding a final determination of the Date of Termination occurring
beyond the Termination Period, such termination shall be deemed to have
occurred within the Termination Period as of the initial date of the
Notice of Termination.
4. COMPENSATION DURING DISABILITY OR UPON TERMINATION.
(i) If during the Termination Period Employee fails to perform Employee's
normal duties as a result of incapacity due to physical or mental illness,
Employee shall continue during the period of disability to receive
Employee's full Base Salary and any awards, deferred and nondeferred,
payable during such period of disability under the Bonus Plan, less any
amounts paid to Employee during such period of disability pursuant to the
Company's disability or sick-leave program(s) until Employee's employment
is terminated for Disability pursuant to Section 3(i) hereof. This Section
4(i) shall not reduce or impair Employee's rights to terminate his
employment for Good Reason as otherwise provided herein.
(ii) If during the Termination Period Employee's employment shall be
terminated for Cause, the Company shall pay Employee's earned but unpaid
Base Salary through the Date of Termination and the Company shall have no
further obligations to Employee under this Agreement.
(iii) If during the Termination Period the Company shall terminate
Employee other than pursuant to Section 3(i) or 3(ii) hereof, or if during
the Termination Period Employee shall terminate Employee's employment for
Good Reason, then the Company shall pay to Employee, by wire transfer or
certified or bank cashier's check, the amounts (and at the time or times)
specified in subparagraphs A through C below and shall provide Employee
the continued welfare benefits as provided in subparagraph D below:
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(A) beginning with the first of the month coincident with or next
following the Date of Termination and continuing for each month (or
part thereof) during the Termination Period or until Employee's
death, if earlier, (the "Employment Period") an amount equal to
1/12th of Employee's Base Salary, reduced by the amount(s), if any,
of monthly base salary paid to Employee by another employer for that
month or net earnings from self-employment received by Employee that
month;
(B) within 15 business days of (1) the close of each annual bonus
period under the Bonus Plan (for purposes of this subparagraph (B),
the Bonus Plan, if in existence on the date of the change in control
of the Company, shall be deemed to have been continued for the
entire Employment Period, regardless of whether it is terminated
following such change in control) ending coincident with or
subsequent to the Date of Termination and prior to or coincident
with the end of the Employment Period, an amount equal to the Bonus
Amount and (2) the end or the Employment Period, if the end of the
Employment Period does not coincide with the end of an annual bonus
period, an amount equal to the product of the Bonus Amount and a
fraction the numerator of which is the number of days from the end
of the immediately preceding annual bonus period and the denominator
of which is 365, reduced by the amount of bonus paid to Employee for
such bonus period(s) by another employer;
(C) within 15 business day after the Date of Termination, an amount
equal to that portion of Employee's Base Salary earned, and vacation
pay vested for the prior year and accrued for the current year, to
the Date of Termination but not paid, and all other amounts
previously deferred by Employee or earned but not paid as of such
date under all Company bonus or pay plans or programs; and
(D) the Company shall maintain in full force and effect for the
continued benefit of Employee and his dependents for the Employment
Period all group life, accidental death and dismemberment, long-term
disability and health benefits available to Employee and his
dependents by virtue of being an employee of the Company as of the
Date of Termination, provided that Employee's continued
participation is possible under the general terms and provisions of
such plans and programs, and provided further that Employee pays the
regular active employee contribution, if any, required by such
programs. In the event that participation by Employee in any such
plan or program after the Date of Termination is barred pursuant to
the terms thereof, the Company shall obtain comparable coverage
under individual insurance policies with Employee paying an amount
of the premium not greater than that which he would have been
required to pay under the Company's group program. At the end of the
Employment Period, which end shall be treated by the
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Company as the beginning of Employee's COBRA continuation period for
all purposes, the Company shall arrange to make available to
Employee and his dependents comparable insurance coverage by taking
all action necessary to enable Employee to convert his coverage
under the group plans or programs to an individual insurance policy
for the benefit of Employee and his dependents, or to assume any
individual insurance policies, with Employee paying the full
premiums after the end of the Employment Period (or, with respect to
any group health plan under which Employee has elected COBRA
continuation coverage, after the end of such COBRA continuation
period); provided, however, if Employee retires on the Date of
Termination, Employee's participation shall continue in such group
plans and programs to the extent such group plans and programs
provide benefits for retirees. In the event Employee becomes covered
by another employer's group plan or programs during the Employment
Period, the Company's plans or programs shall be liable for benefits
only to the extent such benefits are not covered by the subsequent
employer's plans or programs. Notwithstanding anything herein to the
contrary, if Employee's continued coverage under any health plan of
the Company that is self-insured results in Employee being taxed on
such coverage or benefits received thereunder, the Company shall
make employee "whole" on an after-tax basis for the consequences of
such coverage or benefits under such plan.
(iv) Subject to Section 5 below, if during the Alternative Termination
Period the Company shall terminate Employee other than pursuant to Section
3(i) or Section 3(ii) hereof, or if during the Alternative Termination
Period Employee shall terminate Employee's employment for Good Reason,
then the Company shall pay to Employee, by wire transfer or certified or
bank cashiers check, beginning with the first of the month coincident with
or next following the Date of Termination and continuing until April 30,
2000 or Employee's death, if earlier (the "Continuation Period"), an
amount equal to 1/12th of Employee's Base Salary, reduced by the
amount(s), if any, of monthly base salary paid to Employee by another
employer for that month or net earnings from self-employment received by
Employee that month.
5. MITIGATION OF DAMAGES AND EXPENSES. Employee shall be required to
mitigate the amount of any payments provided for under Section 4 (iii)(A) and
(B) of this Agreement (but not under Section 4(iv) by making reasonable efforts
to seek other employment during the Employment Period; however, Employee shall
not be required to accept any employment with respect to which Employee's
position, authority, duties or responsibilities shall be in any material
respect, as determined by Employee in his good faith opinion, inconsistent with
those contemplated in Section 3 of this Agreement or which is based at any
office or location outside the greater Houston area.
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If any contest or dispute shall arise under this Agreement involving
the termination of Employee's employment with the Company or involving the
failure or refusal of the Company, its successors or assigns to perform in
accordance with the terms hereof, the Company shall reimburse Employee, on a
current basis, for all legal fees and expenses, if any, incurred by Employee in
connection with such contest or dispute, together with interest in an amount
equal to the base rate of Chase Bank, Texas, from time to time in effect but in
no event higher than the maximum legal rate permissible under applicable law on
all payments due under the terms of this Agreement and withheld by the Company,
its successors or assigns, such interest to accrue from the date such payment(s)
become due through the date of payment thereof.
Employee agrees that during the Continuation Period Employee shall
not, in those states in the United States of America in which either the Company
or any of its affiliates is then engaged in business or has, at the Date of
Termination, adopted plans to commence business within such state(s) within the
Continuation Period, directly or indirectly, (i) in any manner whatsoever engage
in any capacity with any business competitive with any business then engaged in
by the Company or any of its affiliates (collectively, the "Company's Business")
for Employee's own benefit or for the benefit of any person or entity other than
the Company or any affiliate of the Company, or (ii) have any interest as an
owner, sole proprietor, shareholder, partner, lender, director, officer,
manager, employee, consultant, agent, member or otherwise in any business
competitive with the Company's Business; PROVIDED, HOWEVER, that Employee may
own, directly or indirectly, solely as an investment, not more than 1% of the
outstanding securities of any person or entity which are listed on any national
securities exchange or regularly traded on the Nasdaq Stock Market
notwithstanding the fact that such person or entity is engaged in a business
competitive with the Company's Business. Employee further agrees that if
Employee breaches the foregoing noncompetition provisions of this paragraph, no
further payments shall be due Employee pursuant to Section 4(iv) after the date
of such breach.
6. SUCCESSORS; BINDING AGREEMENT.
(i) The Company will require any successor, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business and/or assets of the Company, by
agreement in form and substance reasonably satisfactory to Employee,
expressly to assume and agree to perform this Agreement in the same manner
and to the same extent as the Company would have been required if no such
succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle Employee to compensation from
the Company in the same amount and on the same terms as Employee would be
entitled hereunder if Employee terminated Employee's employment for Good
Reason, except that for purposes of implementing the foregoing, the date
on which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall
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mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid that executes and delivers the agreement
provided for in this Section 6 or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
(ii) This Agreement shall inure to the benefit of and be enforceable
by Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Employee should die while any amounts would still be payable to Employee
hereunder if Employee had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Employee's devisee, legatee, or other designee or, if
there be no such designee, to Employee's estate.
7. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or five days after deposit in the United
States mail, registered and return receipt requested, postage prepaid, addressed
to the respective addresses set forth on the last page of this Agreement, or to
such other address as either party shall have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
8. EMPLOYMENT WITH SUBSIDIARIES. Employment with the Company for purposes
of this Agreement (other than in Section 3(iii)) includes employment with any
corporation in which the Company has a direct or indirect ownership interest of
50% or more of the total combined voting power of all classes of stock.
9. MISCELLANEOUS. No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by Employee and by the President or other authorized officer of
the Company. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
10. VALIDITY. The interpretation, construction and performance of this
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Texas without regard to the principle of conflicts of laws.
The invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
each of which shall remain in full force and effect.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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12. DESCRIPTIVE HEADINGS. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement.
13. CORPORATE APPROVAL. This Agreement has been approved by the Company's
Board of Directors, and has been duly executed and delivered by Employee and on
behalf of the Company by its duly authorized representative.
14. ARBITRATION. Any dispute or controversy arising out of or in
connection with this Agreement as to the existence, construction, validity,
interpretation or meaning, performance, non-performance, enforcement, operation,
breach, continuance or termination thereof shall be submitted to arbitration
pursuant to the following procedure:
(a) Either party may demand such arbitration in writing after the
controversy arises, which demand shall include the name of the arbitrator
appointed by the party demanding arbitration, together with a statement of
the matter in controversy.
(b) Within 15 days after such demand, the other party shall name an
arbitrator, or in default thereof, such arbitrator shall be named by the
Arbitration Committee of the American Arbitration Association and the two
arbitrators so selected shall name a third arbitrator within 15 days or,
in lieu of such agreement on a third arbitrator by the two arbitrators so
appointed a third arbitrator shall be appointed by the Arbitration
Committee of the American Arbitration Association.
(c) The Company shall bear all arbitration costs and expenses
incurred by Employee.
(d) The arbitration hearing shall be held at a site in Houston,
Texas, to be agreed to by a majority of the arbitrators on 10 days'
written notice to the parties.
(e) The arbitration hearing shall be concluded within 10 days unless
otherwise ordered by a majority of the arbitrators, and the award thereon
shall be made within 10 days after the close of the submission of
evidence. An award rendered by a majority of the arbitrators appointed
pursuant to this Agreement shall be final and binding on all parties to
the proceeding during the period of this Agreement, and judgment on such
award may be entered by either party in the highest court, state or
federal, having jurisdiction; provided, however, that Employee shall be
entitled to specific performance of Employee's right to be paid until the
Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
The parties stipulate that the provisions hereof shall be a complete
defense to any suit, action, or proceeding instituted in any federal, state, or
local court or before
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any administrative tribunal with respect to any controversy or dispute arising
during the period of this Agreement and which is arbitrable as herein set forth.
The arbitration provisions hereof shall, with respect to such controversy or
dispute, survive the termination of this Agreement.
Notwithstanding the pendency of any dispute or controversy pursuant
to this Section 14, the Company will continue to pay Employee Employee's full
Base Salary in effect when the notice giving rise to the dispute was given and
continue Employee as a participant in all compensation, benefit and insurance
plans in which Employee was participating when the notice giving rise to the
dispute was given, until the dispute is finally resolved in accordance with
Section 3(v) hereof. Amounts paid under this Section 14 are in addition to all
other amounts due under this Agreement and shall not be offset against or reduce
any other amounts due under this Agreement.
IN WITNESS WHEREOF, the Company and Employee have entered into this
Agreement effective for all purposes as of the day and year first above written.
TECH-SYM CORPORATION
Dated: June 17, 1998 By:/s/Xxxxxxx X. Xxxxx
Chairman
EMPLOYEE
Dated: By: /s/ J. XXXXXXX XXXX
J. Xxxxxxx Xxxx
Addresses:
If to the Company:
Tech-Sym Corporation
00000 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: General Counsel
If to Employee:
___________________________
___________________________
___________________________
13
