EMPLOYMENT AGREEMENT
This Agreement is entered into as of August 1, 1996 between CODED
COMMUNICATIONS CORPORATION, a Delaware corporation ("Employer"), and Xxxx
Xxxxxxx, an individual ("Employee"), who agree as follows:
1. Hiring. Employer hereby hires Employee as, and Employee hereby
agrees to act as, Chief Operating Officer.
2. Duties. Employee shall faithfully, loyally and diligently perform
the following duties on a full-time basis: (a) devoting Employee's entire
productive time, ability and attention to the business of Employer, including
such tasks and duties consistent with the position of Chief Operating Officer
as shall be delegated, assigned or referred to Employee by the Chief Executive
Officer or President of the Employer; and (b) performing such other duties as
Employer shall from time to time specify that are consistent with the duties
normally performed by the Chief Operating Officer of Employer.
3. Term. The term of this Agreement shall be 3 years, commencing on
the date of this Agreement and, unless terminated earlier as set forth below,
this Agreement will expire on July 31, 1999 (the "Termination Date").
Notwithstanding the above, this Agreement shall automatically extend for a
period of one year at expiration and each year thereafter unless the Employer
or Employee provides the other party written notice not less than 120 days
prior to the expiration date, of its intent to terminate the Agreement.
4. Termination. At any time that Good Cause (as defined below)
exists or has arisen, Employer may, at its election, terminate this Agreement
by so notifying Employee in writing (the "Good Cause Notice"). From and after
the date of this Agreement, whether or not Good Cause exists or has arisen,
either Employer or Employee may, at either party's election, terminate this
Agreement by so notifying the other in writing (the "Termination Notice"), for
any reason whatsoever or for no reason. Upon the earlier of the Termination
Date, immediately after the giving of the Good Cause Notice, or 7 days after
the giving of the Termination Notice, (a) this Agreement shall be deemed
terminated, (b) neither Employee nor Employer shall have any further rights or
obligations under this Agreement except with respect (i) to Employer's
obligations as set out in paragraphs entitled "Termination Obligations" and
"Indemnification" of this Agreement and (ii) to Employee's obligations under
the paragraphs in this Agreement entitled "Confidentiality," "Proprietary
Information," and "Competition," which obligations shall survive any such
termination, and (c) Employee shall return to Employer all property belonging
to Employer, including without limitation all Confidential Material (as
defined below), promotional material, equipment, advertising information,
samples, price lists and similar items. For purposes of this Agreement, "Good
Cause" shall mean the existence or occurrence of any of the following:
4.1 If Employee is convicted of a felony.
4.2 If Employee commits gross mismanagement, as determined in good
faith by the Board of Directors (or an appointed committee of the Board of
Directors with at least one committee member a disinterested director) and CEO
of Employer, whose determination shall be final and binding.
4.3 The death of Employee.
4.4 If Employee becomes materially disabled to such an extent
that Employee is precluded from performing the duties set forth in this
Agreement for a period of 90 consecutive days, or 120 days in the aggregate
during any one-year period.
5. Compensation. Employee's annual compensation under this Agreement
shall be $125,000 ("Base Salary") payable at the rate of $2403.85 per week,
which payments shall be made in accordance with and at the same times as
Employer's ordinary payroll procedures. The Employee's Base Salary will be
reviewed annually by the CEO and Board of Directors of the Employer; however,
the Base Salary may not be reduced without the written consent of the
Employee.
6. Options. Employer acknowledges the prior grant to Employee of an
initial stock option (the "Options") to purchase 1,250,000 shares of
Employer's common stock (the "Option Shares") at a price per share equal to
$.30 per share. The Options are granted and subject to the terms and
conditions of the Employer's 1992 Stock Option Plan, as amended.
7. Bonus Plan. Annually, the Board of Directors shall establish an
Executive Bonus Plan pursuant to which the Employee may earn up to 30% of his
annual Base Salary. The terms and conditions of the Executive Bonus Plan will
be set annually by the Board of Directors and will be primarily based upon
fiscal year financial targets and goals such as revenue, gross margin,
operating income and cash flow.
8. Benefits. Employee shall be entitled to the following benefits
during the term of this Agreement:
8.1 Three weeks paid vacation for each one-year period during the
term of this Agreement (prorated for any partial year), to be taken at such
times that are consistent with Employer's standard vacation practices and
policies.
8.2 Reimbursement for reasonable business expenses incurred in
the proper performance of Employee's duties under this Agreement, in
accordance with Employer's standard practices and policy.
8.3 Inclusion in Employer's group medical and other insurance
plans for Employer's employees. Insurance premiums for dependent coverage
shall be paid by the Employer.
8.4 A monthly automobile allowance of $600 per month, in
accordance with employer's standard practices and policy.
8.5 All benefits generally available to other employees of
Employer.
8.6 A monthly housing allowance of $2800.00 in accordance with
Employer's standard practices and policy (the monthly automobile and housing
allowance are collectively the "Compensation Package").
8.7 Inclusion in Employer's term life insurance plan for
Executive Officers, with premiums paid by Employer, in accordance with
Employer's standard practices and policy.
9. Relocation Reimbursement. The Employee will be reimbursed by the
Employer for the reasonable out-of-pocket expenses incurred by Employee to
relocate from Atlanta, Georgia to San Diego, California.
9.1 Employee shall be reimbursed for reasonable closing costs,
estimated at approximately $3,000 for closing costs on the sale of Employee's
personal residence in Atlanta and approximately $11,000 for closing costs on
the purchase of Employee's personal residence in San Diego, California.
9.2 The Employee will be reimbursed for the reasonable out-of-
pocket expense incurred by Employee to relocate Employee's personal property
to San Diego, California, and for reasonable out-of-pocket travel expenses for
Employee's immediate family from Atlanta to San Diego.
9.3 In the event Employee is terminated by Employer within 12
months of the date of this Agreement for any reason other than Good Cause,
then Employer will reimburse Employee for all reasonable out-of-pocket
expenses incurred by Employee to relocate from San Diego, California to
Atlanta, Georgia. These expenses are to include the reasonable costs to move
Employee's personal belongings to Atlanta and the travel expenses of the
Employee's immediate family, and are to be comparable to the relocating
expense package offered to Employee on the move from Atlanta to San Diego.
10. Termination Obligations. In the event this Agreement is
terminated, the Employee will be entitled to the following termination
benefits.
10.1 If terminated by the Employee for any reason (except for the
employment of Employee by a competitor of the Employer) with 30 day notice to
Employer, then Employee is to receive a severance benefit of 25% of Base
Salary payable in a lump sum on the date of termination.
10.2 If terminated by the Employer for Good Cause (except if
termination is the result of Employee's committing a felony), then Employee is
to receive a severance benefit of 25% of Base Salary and Compensation Package,
payable in a lump sum at the date of termination.
10.3 If terminated by the Employer for any reason other than for
Good Cause, (or for Good Cause within 12 months following a change of control
(defined as a person, firm or entity through one or a series of transactions,
acquiring more than 40% of the Employer's common stock or purchasing
substantially all of the Employer's assets and/or business), then the Employee
is to receive a severance benefit of the greater of (i) 100% of annual Base
Salary and Compensation Package or (ii) the value of the remainder of this
Base Salary and Compensation Package payable under this Agreement; payable in
12 equal consecutive monthly installments on the date of termination.
10.4 If terminated by the Employer due to the disability of
Employee, as the term "disability" shall be defined under Employer's long-term
disability group insurance plan, then Employee is to receive a severance
benefit of 50% of annual Base Salary and Compensation Package, less any
amounts payable to Employee under any disability insurance plan maintained by
the Employer for the benefit of the Employee, payable in six (6) equal
consecutive monthly installments beginning on the date of termination.
10.5 If terminated by the Employer due to the death of the
Employee, then the Employee's beneficiaries are to receive a death benefit
equal to 50% of Employee's annual Base Salary and Compensation Package, less
any benefits paid to Employee's beneficiaries under any Executive Officer term
life insurance plan maintained by Employer for the benefit of Executive
Officers, payable in three (3) equal consecutive monthly installments
beginning on the date of termination.
10.6 If terminated for any reason by Employer, (except if
termination is the result of Employee's committing a felony), then Employer
shall cause to be paid the COBRA medical insurance premiums of Employee,
including dependent premiums if applicable, for a period of nine (9) months
beginning on the date of termination; if terminated by Employee for any
reason, (except for the employment of Employee by a competitor of the
Employer), then Employer shall cause to be paid Employee's monthly COBRA
medical insurance premiums (including dependent coverage) for a period of
three (3) months, beginning on the date of termination.
11. Confidentiality. Employee hereby acknowledges that Employer has
made (or may make) available to Employee certain customer lists, product
design information, know-how, performance standards future plans, business
strategies, financial information, processes and other confidential and/or
proprietary information of Employer or licensed to Employer, including without
limitation trade secrets and copyrighted materials (collectively, the
"Confidential Material"). Except as essential to Employee's obligations under
this Agreement, neither Employee nor any agent, employee, officer, or
independent contractor of or retained by Employee shall make any disclosure of
this Agreement, the terms of this Agreement, or any of the Confidential
Material. Except as essential to Employee's obligations under this Agreement,
neither Employee nor any agent, employee, officer, or independent contractor
of or retained by Employee shall make any duplication or other copy of any of
the Confidential Material. Immediately upon request from Employer, Employee
shall return to Employer all Confidential Material. Employee shall notify
each person to whom any disclosure is made that such disclosure is made in
confidence, that the Confidential Material shall be kept in confidence by such
person, and that such person shall be bound by the provisions of this
Paragraph.
11.1 Notwithstanding the above, Employee shall be required to
execute Employer's standard Employee Confidentiality Agreement. In the event
there are any contradictions between the Employee's obligations under the
Employer's Standard Confidentiality Agreement and Employee's obligations
hereunder, then the most restrictive provisions shall apply.
12. Proprietary Information. For purposes of this Agreement,
"Proprietary Information" shall mean any information, future plans, business
strategies, financial information, processes, observation, data, written
material, record, document, computer program, software, firmware, invention,
discovery, improvement, development, tool, machine, apparatus, appliance,
design, promotional idea, customer list, practice, process, formula, method,
technique, trade secret, product and/or research related to the actual or
anticipated research development, products, organization, business or finances
of Employer (or any of its affiliates). All right title and interest of every
kind and nature whatsoever in and to the Proprietary Information made,
discussed, developed, secured, obtained or learned by Employee during the term
of this Agreement, or the 60-day period immediately following termination of
this Agreement, shall be the sole and exclusive property of Employer for any
purposes or uses whatsoever, and shall be disclosed promptly by Employee to
Employer. The covenants set forth in the preceding sentence shall apply
regardless of whether any Proprietary Information is made, discovered,
developed, secured, obtained or learned (a) solely or jointly with others, (b)
during the usual hours of work or otherwise, (c) at the request and upon the
suggestion of Employer or otherwise,
or (d) with Employer's materials, tools, instruments or on Employer's premises
or otherwise. All Proprietary Information developed, created, invented,
devised, conceived or discovered by Employee that are subject to copyright
protection are explicitly considered by Employee and Employer to be works made
for hire to the extent permitted by law. Employee hereby assigns to Employer
all of Employee's right, title and interest in and to the Proprietary
Information. Employee hereby forever fully releases and discharges Employer,
any affiliates of Employer and their respective officers, directors and
employees, from and against any and all claims, demands, damages, liabilities,
costs and expenses of Employee arising out of, or relating to, any Proprietary
Information. Employee shall execute any documents and take any action
Employer may deem necessary or appropriate to effectuate the provisions of
this Agreement, including without limitation assisting Employer in obtaining
and/or maintaining patents, copyrights or similar rights to any Proprietary
Information assigned to Employer, if Employer, in its sole discretion,
requests such assistance. Employee shall comply with any reasonable rules
established from time to time by Employer for the protection of the
confidentiality of any Proprietary Information. Employee irrevocably appoints
the CEO or President of Employer to act as Employee's agent and attorney-in-
fact to perform all acts necessary to obtain and/or maintain patents,
copyrights and similar rights to any Proprietary Information assigned by
Employee to Employer under this Agreement if (a) Employee refuses to perform
those acts, or (b) is unavailable, within the meaning of any applicable laws.
Employee acknowledges that the grant of the foregoing power of attorney is
coupled with an interest and shall survive the death or disability of
Employee. Employee shall promptly disclose to Employer in confidence (a) all
Proprietary Information that Employee creates during the term of this
Agreement, and (b) all patient applications filed by Employee within one year
after termination of this Agreement. Any application for a patient copyright
registration or similar right filed by Employee within one year after
termination of this Agreement shall be presumed to relate to Proprietary
Information created by Employee during the term of this Agreement, unless
Employee can prove otherwise. Nothing contained in this Agreement shall be
construed to preclude Employer from exercising all of its rights and
privileges as sole and exclusive owner of all of the Proprietary Information
owned by or assigned to Employer under this Agreement. Employer, in
exercising such rights and privileges with respect to any particular item of
Proprietary Information, may decide not to file any patent application or any
copyright registration on such Proprietary Information, may decide to maintain
such Proprietary Information as secret and confidential, or may decide to
abandon such Proprietary Information or dedicate it to the public. Employee
shall have no authority to exercise any rights or privileges with respect to
the Proprietary Information owned by or assigned to Employer under this
Agreement. This Agreement does not apply to any Proprietary Information that
qualifies fully under the provisions of California Labor Code Section 2870 or
any similar or successor statute.
13. Competition. During the term of this Agreement, Employee shall
not own a 5% or more interest in, operate or participate in, or be connected
as an officer, director, employee, agent, independent contractor, partner,
shareholder or principal of any business entity or person producing,
designing, providing, soliciting orders for selling, distributing, or
marketing products, goods, equipment and/or services which compete with
Employer's products, goods, equipment and/or services.
13.1 Employee, except within the course of the performance of his
duties hereunder, shall not at any time while he is in the employ of Employer
or any of its parents, subsidiaries or affiliates, and for a period of six (6)
months thereafter (i) employ any individual who was employed by
Employer or any of its parents, subsidiaries or affiliates, at any time during
the period of six (6) months prior to the date Employee intends to employ such
person or (ii) in any way cause, influence, or participate in the employment
of any individual which would be contrary to Employer's best interests, as
determined by the Employer, in its sole discretion.
14. Injunctive Relief. Each of Employer and Employee hereby
acknowledge (a) the unique nature of the provisions set forth in the Paragraph
of this Agreement entitled "Confidentiality," "Proprietary Information," and
"Competition," (b) that Employer will suffer irreparable harm if Employee
breaches any of such provisions, and (c) that monetary damages will be
inadequate to compensate Employer for such breach. Therefore, if Employee
breaches any of such provisions, then Employer shall be entitled to injunctive
relief (in addition to any other remedies at law or equity) to enforce such
provisions.
15. Survival. The representations, warranties and covenants of
Employee in this Agreement shall survive any termination of this Agreement.
16. Governing Law. This Agreement is governed by and construed in
accordance with the laws of the State of California, irrespective of
California's choice-of-law principles.
17. Further Assurances. Each party to this Agreement shall execute
and deliver all instruments and documents and take all actions as may be
reasonably required or appropriate to carry out the purposes of this
Agreement.
18. Venue and Jurisdiction. All actions and proceedings arising in
connection with this Agreement must be tried and litigated exclusively in the
State and Federal courts located in the County of San Diego, State of
California, which courts have personal jurisdiction and venue over each of the
parties to this Agreement for the purpose of adjudicating all matters arising
out of or related to this Agreement. Each party authorizes and accepts
service of process sufficient for personal jurisdiction in any action against
it as contemplated by this paragraph by registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of notices
set forth in this Agreement.
19. Arbitration. Any controversy arising between the Employer and
Employee involving the construction or application of any of the terms,
provisions or conditions of this Agreement shall, on the written request of
either party served on the other, be submitted to arbitration. Any
arbitration arising under this Agreement shall comply with the American
Arbitration Association's Commercial Arbitration Rules and shall be final and
conclusive upon both parties. Any judgment upon the award may be entered in
any court having jurisdiction thereof.
20. Counterparts and Exhibits. This Agreement may be executed in
counterparts, each of which is deemed an original and all of which together
constitute one document. All exhibits attached to and referenced in this
Agreement are incorporated into this Agreement.
21. Attorney's Fees. The prevailing party(ies) in any litigation,
arbitration, mediation, bankruptcy, insolvency or other proceeding
("Proceeding") relating to the enforcement or interpretation of this Agreement
may recover from the unsuccessful party(ies): all costs, expenses, and actual
attorney's fees (including expert witness and other consultants' fees and
costs) relating to or
arising out of (a) the Proceeding (whether or not the Proceeding proceeds to
judgment), and (b) any post-judgment or post-award proceeding including,
without limitation, one to enforce or collect any judgment or award resulting
from the Proceeding. All such judgments and awards shall contain a specific
provision for the recovery of all such subsequently incurred costs, expenses,
and actual attorney's fees.
22. Indemnification. The Employer shall indemnify the Employee, if the
Employee was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Employer), by reason of the fact that he is or was a director,
officer, employee or agent of the Employer, or is or was a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against any and all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Employer, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendre or its equivalent, shall not of
itself, create a presumption that the Employer did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Employer, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
22.1 Actions or Suits by or in the Right of the Employer. The
Employer shall indemnify the Employee if the Employee, was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Employer to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Employer or is or was serving at the request of the Employer as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against and all expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Employer and except that no indemnification shall be made in respect of any
claim, issue or matter as to which the Employee shall have been adjudged to be
liable to the Employer unless and only to the extent that the Court of Chancery
for the State of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, the Employee is fairly and
reasonably entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.
22.2 Persons Successful. To the extent that the Employee has been
successful on the merits or otherwise in defense or any action, suit or
proceeding referred to herein this Agreement, or in defense of any claim, issue
or matter therein, he shall be indemnified against any and all expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
22.3 Advance Payment. Expenses incurred by the Employee defending
a civil or criminal action, suit or proceeding shall be paid by the Employer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the Employee to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Employer pursuant to this Article.
22.4 Other Rights. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
Article shall not be deemed exclusive of any other rights to which the Employee
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action in any
other capacity while holding such office.
22.5 Insurance. The Employer may purchase and maintain insurance
on behalf of the Employee who is or was a director, officer, employee or agent
of the Employer, or is or was serving at the request of the Employer as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Employer would have the power to indemnify him against such
liability under the provisions of this Article or of Title 8, Section 145, of
the General Corporation Law of the State of Delaware.
22.6 Persons Ceasing to be a Director or Officer. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Article unless otherwise provided when authorized or ratified, shall
survive the termination of this Agreement, whether upon the expiration of the
term or otherwise and shall continue as to the Employee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of the Employee.
23. Modification. This Agreement may be modified only by a contract
in writing executed by the party to this Agreement against whom enforcement of
the modification is sought.
24. Headings. The paragraph headings in this Agreement: (a) are
included only for convenience, (b) do not in any manner modify or limit any of
the provisions of this Agreement, and (c) may not be used in the
interpretation of this Agreement.
25. Prior Understandings. This Agreement and all documents
specifically referred to and executed in connection with this Agreement: (a)
contain the entire and final agreement of the parties to this Agreement with
respect to the subject matter of this Agreement, and (b) supersede all
negotiations, stipulations, understandings, agreements, representations and
warranties, if any, with respect to such subject matter, which precede or
accompany the execution of this Agreement.
26. Interpretation. Whenever the context so requires in this
Agreement, all words used in the singular may include the plural (and vice
versa) and the word "person" includes a natural person, a corporation, a firm,
a partnership, a joint venture, a trust, an estate or any other entity. The
terms "includes" and "including" do not imply any limitation. For purposes of
this Agreement, the term "day" means any calendar day and the term "business
day" means any calendar day other than a Saturday, Sunday or any other day
designated as a holiday under California Government Code Sections 6700-6701.
Any act permitted or required to be performed under this Agreement upon a
particular day which is not a business day may be performed on the next
business day with the same effect as if it had been performed upon the day
appointed. No remedy or election under this Agreement is exclusive, but
rather, to the extent permitted by applicable law, each such remedy and
election is cumulative with all other remedies at law or in equity.
27. Partial Invalidity. Each provision of this Agreement is valid and
enforceable to the fullest extent permitted by law. If any provision of this
Agreement (or the application of such provision to any person or circumstance)
is or becomes invalid or unenforceable, the remainder of this Agreement, and
the application of such provision to persons or circumstances other than those
as to which it is held invalid or unenforceable, are not affected by such
invalidity or unenforceability (unless such provision or the application of
such provision is essential to this agreement).
28. Successors-in-Interest and Assigns. Employee may not voluntarily
or by operation of law assign, hypothecate, delegate or otherwise transfer or
encumber all or any part of its rights, duties or other interests in this
Agreement without the prior written consent of Employer, which consent may be
withheld in Employer's sole and absolute discretion. Any such transfer in
violation of this paragraph is void. Subject to the foregoing and any other
restrictions on transferability contained in this Agreement, this Agreement is
binding upon and inures to the benefit of the successors-in-interest and
assigns of each party to this Agreement.
29. Notices. Each notice and other communication required or
permitted to be given under this Agreement ("Notice") must be in writing.
Notice is duly given to another party upon: (a) hand delivery to the other
party, (b) receipt by the other party when sent by facsimile to the address
and number for such party set forth below (provided, however, that the Notice
is not effective unless a duplicate copy of the facsimile Notice is promptly
given by one of the other methods permitted under this paragraph), (c) three
business days after the Notice has been deposited with the United States
postal service as first class certified mail, return receipt requested,
postage prepaid, and addressed to the party as set forth below, or (d) the
next business day after the Notice has been deposited with a reputable
overnight delivery service, postage prepaid, addressed to the party as set
forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery-service-
provider.
To: CODED COMMUNICATIONS CORPORATION
0000 Xxxxxxx Xxxx Xxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000)
To: Xxxx Xxxxxxx
00000 Xxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Each party shall make a reasonable good faith effort to ensure that it will
accept or receive Notices to it that are given in accordance with this
paragraph. A party may change its address for purposes of this paragraph by
giving the other party(ies) written notice of a new address in the manner set
forth above.
30. Waiver. Any waiver of a default or provision under this Agreement
must be in writing. No such waiver constitutes a waiver of any other default
or provision concerning the same or any other provision of this Agreement. No
delay or omission by a party in the exercise of any of its rights or remedies
constitutes a waiver of (or otherwise impairs) such right or remedy. A
consent to or approval of an act does not waive or render unnecessary the
consent to or approval of any other or subsequent act.
31. Drafting Ambiguities. Each party to this Agreement has reviewed
and revised this Agreement and has had the opportunity to have such party's
legal counsel review and revise this Agreement. The rule of construction that
ambiguities are to be resolved against the drafting party or in favor of the
party receiving a particular benefit under an agreement may not be employed in
the interpretation of this Agreement or any amendment to this Agreement.
32. Third Party Beneficiaries. Nothing in this Agreement is intended
to confer any rights or remedies on any person or entity other than the
parties to this Agreement and their respective successors-in-interest and
permitted assignees, unless such rights are expressly granted in this
Agreement to another person specifically identified as a "Third Party
Beneficiary."
33. Receipt of Copy. Employee hereby acknowledges that it has
received a signed copy of this Agreement.
34. Guarantee. The obligations to Employee herein shall be guaranteed
and become the joint and severable obligations of the Employer, its parent
corporation (if any), its affiliated corporations and any corporation or
entity that owns or controls, direct or indirectly, more than 50 percent of
the Employer's common stock.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INDIVIDUAL:
______________________________
Xxxx Xxxxxxx
CODED COMMUNICATIONS CORPORATION,
a Delaware corporation
By:_____________________________________
Xxxx X. Xxxxxxxx, Xx.
President and CEO
APPROVED:
_______________________________________
Ing. Xxxx X. Xxxxx
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