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EMPLOYMENT AGREEMENT
BETWEEN
XX. XXXX XXXXXXXXX AND HONEYWELL ACQUISITION CORP.
This Employment Agreement ("Agreement") is entered into between Xx. Xxxx
Xxxxxxxxx ("Executive"), and Honeywell Acquisition Corp. (the "Company"), a
corporation incorporated under the laws of Delaware. In this Agreement,
Executive and the Company are collectively referred to as "the parties". The
term "the Company" as used in this Agreement includes all subsidiaries,
affiliates, and businesses of Honeywell Acquisition Corp. and following the
Effective Time (as defined in the Merger Agreement (as defined below)) means
Honeywell-Measurex Corporation as the surviving entity of the Merger (as defined
below) and all of its subsidiaries, affiliates and businesses. The effective
date of this Agreement is the Effective Time.
I. BACKGROUND.
A. Acquisition of Measurex. Under the terms of the Agreement and Plan of
Merger, dated as of January 26, 1997 ("Merger Agreement"), Honeywell
Acquisition Corp. (a wholly owned subsidiary of Honeywell Inc.
("Honeywell")) has agreed to purchase all of the issued and outstanding
shares of capital stock of Measurex Corporation ("Measurex"). After the
acceptance for purchase of shares of common stock of Measurex pursuant to
the Offer, Honeywell Acquisition Corp. will be merged with and into
Measurex at the Effective Time (the "Merger"), with Measurex being the
surviving company thereafter to be named Honeywell-Measurex Corporation.
B. Executive's Position with Measurex. Executive is the President and
Chief Operating Officer of Measurex.
C. Measurex's Business. Measurex is engaged in the design, manufacture
and servicing of computer-integrated measurement, control and information
systems and will be operated as a unit of Honeywell's Industrial Automation
and Control business.
II. SUPERSEDES AND REPLACES ALL PRIOR AGREEMENTS. Executive and the Company
agree that as of the Effective Time this Agreement will supersede and replace
all agreements, contracts, or promises of any kind between Executive and
Measurex, and that all such agreements, contracts and promises will be revoked
and of no further force or effect including, without limitation, that certain
Severance Agreement dated as of May 15, 1995.
III. EMPLOYMENT POSITION WITH THE COMPANY. The Company wishes to employ
Executive, and Executive wishes to be employed by the Company, in the position
of President of the Company. This Agreement sets out the mutual considerations
and undertakings between the Company and Executive which are entered into for
the purpose of employing Executive in this position, or another position as
assigned by the Company and as may be agreed to by Executive.
A. Duties and Authority.
1. Executive will have all of the duties and responsibilities, and
will be subject to all terms and conditions of employment, which are
customary and reasonable for his position.
2. Executive will be subject to, and will abide by the requirements
of, all Honeywell and Company policies which are communicated to
Executive and which are from time to time in effect for management or
executive employees of Honeywell and the Company, including without
limitation, Honeywell's Code of Ethics and Business Conduct.
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3. Executive will perform the duties and exercise the powers of his
position in accordance with the direction of the Board of Directors of
the Company and in accordance with the direction of the President of
Honeywell Industrial Automation and Control.
B. Term of Agreement. Subject to the terms of this Agreement, Executive's
employment with the Company pursuant to this Agreement will commence at the
Effective Time. Unless terminated sooner and subject to the terms of
Paragraph IV.D. hereof, this Agreement expires on December 31, 1998.
C. Compensation. As long as Executive remains an employee of the Company
and this Agreement remains in effect, Executive will be compensated in
accordance with the terms of Honeywell's Executive Compensation Program, as
a Level J executive. Executive shall have the base salary, incentive
compensation, benefits, expense reimbursement, stock options, performance
stock program participation and perquisites (including executive life
insurance, automobile, financial counseling and club membership) to the
extent provided to all other Honeywell Level J executives pursuant to the
Executive Compensation Program (a copy of which has been provided to
Executive). Executive shall be reimbursed for first-class business travel.
As a Level J executive, Executive's initial base salary shall be two
hundred and fifty thousand dollars ($250,000.00) on an annualized basis,
less all standard legal deductions and all other deductions, contributions,
and payments authorized by Executive payable on a bi-weekly basis.
1. Incentive Compensation. Although Executive will receive the same
forty percent (40%) of base salary on-plan incentive compensation
specified for Level J executives, the plan upon which Executive's
incentive compensation shall be based during the first calendar year
of his employment, even if Executive's employment with the Company
commences after the start of the calendar year, shall be based upon
the results reflected in the 1997 Measurex operating plan previously
delivered to Honeywell and in the pulp and paper segment of the 1997
Honeywell operating plan, with the objectives of operating profit and
economic value added weighted 60% and 40%, respectively; if his
employment does commence after the start of the calendar year, his
incentive compensation for such first calendar year of employment
shall be prorated. Objectives and weightings for the subsequent
calendar years of employment, should Executive's employment continue
pursuant to this Agreement, shall be determined by the President,
Honeywell Industrial Automation and Control, during the fourth quarter
of the year preceding each such subsequent year. If this Agreement
terminates before the end of a calendar year, any incentive
compensation due Executive for that calendar year shall be determined
on a prorated basis.
2. Special Additional Compensation. As an additional incentive for
Executive to remain employed by the Company for the entire term of
this Agreement, and as additional consideration for Executive's
covenants and promises in this Agreement, the Company will provide the
following incentives to Executive:
a. An aggregate cash payment of approximately $2,039,724 (with
the final amount to be determined by the Company and Executive at
the Effective Time) payable in six equal installments the first of
which shall be made on the Effective Time and the remaining five
of which shall be made at the end of each four-month period
following the Effective Time if Executive has remained continually
employed by the Company from the Effective Time through the end of
such period; provided, however, that if Executive is terminated by
the Company other than for Cause (as defined below) prior to such
date, Executive shall remain entitled to the full amount of the
unpaid portion of such payment which shall be payable in a lump
sum upon termination and; further, provided, that if Executive
voluntarily
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terminate his employment with the Company for any reason, he shall
be entitled to receive only a pro rata portion of such payment to
the date of termination; provided further, however, that if
Executive resigns as a result of a material breach of this
Agreement by the Company, Executive shall be entitled to the full
amount of such payment which shall be payable in a lump sum upon
termination;
b. On the scheduled issue date for the Honeywell Stock Option
Program in February 1998, if Executive has remained continually
employed by the Company through such date, seven thousand five
hundred (7,500) shares of nonqualified stock options with a ten
(10) year term (provided that if Executive's employment with the
Company is thereafter terminated, the exercisability of such
options after the date of termination shall be subject to the
terms of Honeywell's Stock Option Program, a copy of which has
been delivered to Executive (the "Option Plan"), at an exercise
price determined in accordance with the Option Plan.
c. Twenty five thousand (25,000) shares of nonqualified stock
options with a ten (10) year term (provided that if Executive's
employment with the Company is terminated, the exercisability of
such options after the date of termination shall be subject to the
terms of the Option Plan), at an exercise price equal to the
closing price of Honeywell common stock on the New York Stock
Exchange on the Effective Time, vesting on December 31, 1998 (i)
with respect to 10,000 shares contingent on the attainment by the
Company of 1997 financial performance goals to be determined by
the Company and Executive and (ii) with respect to 15,000 shares
contingent on the attainment by the Company of 1998 financial
performance goals to be determined by the Company and Executive;
d. That number of shares of performance restricted stock of
Honeywell issued pursuant to the terms of the Honeywell
Performance Stock Program equal to up to the product obtained by
multiplying 4,333 by a fraction, the numerator of which is the
number of calendar months (including the month during which the
Effective Time occurs) from the Effective Time through December
31, 1997 and the denominator of which is 24.
e. Three thousand (3,000) shares of restricted Honeywell stock
vesting on December 31, 1998. Five thousand (5,000) shares of
restricted Honeywell stock vesting on December 31, 1999,
contingent on the attainment by the Company of 1997 and 1998
financial performance goals to be determined by the Company and
Executive.
f. An aggregate cash payment of one hundred thousand dollars
($100,000) payable in equal installments on or about the first day
of each calendar month during 1997 following the Effective Time.
D. Termination. On termination of employment, for whatever reason, and
whether the termination is voluntary or involuntary, Executive shall
immediately resign all offices held with or on behalf of the Company. Other
than as is specifically provided in this paragraph III.D., Execu- tive
shall not be entitled to receive any payment or compensation for loss of
office, or by reason of his separation from employment with the Company. If
Executive fails to immediately resign all offices as set forth above, the
Company is hereby irrevocably authorized to appoint an individual of the
Company's choice to, in Executive's name and on Executive's behalf, sign
any documents or to do any thing necessary or requisite to give effect to
Executive's resignation from all such offices.
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1. Disability.
a. If, as a result of the incapacity of Executive due to
physical or mental illness, he is unable to perform substantially
and continuously the duties assigned to him (such incapacity being
referred to as a "Disability") for a period of six (6) consecutive
months during the term of this Agreement, the Company may
terminate his employment upon thirty (30) days prior written
notice to Executive.
b. During any period that Executive fails to perform his duties
with the Company as a result of a Disability (the "Disability
Period"), Executive shall be entitled to receive his base salary
at the rate then in effect minus any compensation payable to him
under any applicable disability insurance plan of the Company. In
the event Executive's employment shall thereafter be terminated
pursuant to paragraph III.D.1.a. or by reason of his death,
Executive (or his estate or beneficiary) shall be entitled to
receive any incentive compensation payable with respect to the
year in which the termination or death occurred on a prorated
basis, such incentive compensation to be paid on the date of the
Company's normal distribution of incentive compensation for the
year in question and shall be entitled to receive any compensation
due and not yet paid pursuant to paragraph III.C.2.a. of this
Agreement. Thereafter, the Company shall have no further
obligation under this Agreement to Executive, Executive's estate
or beneficiary, or to any other party (as opposed to obligations,
if any, under any other agreement).
2. Death.
a. Executive's employment shall terminate immediately upon his
death.
b. In the event of Executive's death during the term of this
Agreement, his estate or beneficiary shall be entitled to receive
his base salary at the rate then in effect as set forth in
paragraph III.C. of this Agreement through the date of his death,
and shall be entitled to receive the incentive compensation
payable with respect to the year in which death occurred on a
prorated basis, such incentive compensation to be paid on the date
of the Company's normal distribution of incentive compensation for
the year in question and shall be entitled to receive any
compensation due and not yet paid pursuant to paragraph III.C.2.a.
of this Agreement. Thereafter, the Company shall have no further
obligation under this Agreement to Executive, Executive's estate
or beneficiary, or to any other party (as opposed to obligations,
if any, under any other agreement).
3. Cause. The Company shall be entitled at any time during the term
of this Agreement to terminate Executive's employment and all of
Executive's rights under this Agreement for "Cause". For purposes of
this Agreement, "Cause" for termination by the Company of Executive's
employment shall mean (i) the willful and continued failure by
Executive to substantially perform his duties with the Company (other
than any such failure caused by Executive's incapacity due to physical
or mental illness) after a written demand for substantial performance
is delivered to Executive by the President, Honeywell Industrial
Automation Control, which demand identifies the manner in which the
President believes that Executive has not substantially performed his
duties; (ii) the willful engaging by Executive in conduct which is
demonstrably and materially injurious to the Company or its
subsidiaries, monetarily or otherwise; (iii) a conviction, plea of
nolo contendere, guilty plea or confession by Executive to an act of
fraud, misappropriation, or embezzlement or to a felony. For purposes
of clauses (i) and (ii) of this definition, no act, or failure to act,
on Executive's part shall be deemed "willful" unless Executive's act,
or failure to act, was not in good faith, and Executive
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did not have a reasonable belief that his act, or failure to act, was
in, or not opposed to, the best interest of the Company.
If, prior to the time this Agreement expires, Executive's employment
shall be terminated by the Company for Cause, the Company shall pay
Executive's (i) base salary at the rate then in effect as set forth in
paragraph III.C. of this Agreement through the date of such termina-
tion, such base salary to be paid not later than the date of
termination and (ii) his incentive compensation with respect to the
year in which such termination occurred on a prorated basis, such
incentive compensation to be paid on the date of the Company's normal
distribution of incentive compensation for the year in question.
Thereafter, the Company shall have no further obligation under this
Agreement to Executive, Executive's estate or beneficiary, or to any
other party (as opposed to obligations, if any, under any other
agreement).
4. Voluntary Termination by the Company.
a. The Company may terminate Executive's employment at any time
during the term of this Agreement for any reason other than Cause,
Death or Disability upon thirty (30) days prior written notice to
Executive.
b. If the Company voluntarily terminates Executive's employment
pursuant to this paragraph III.D.4., changes his title or job
duties in any material respect or demands, as a condition of
continued employment, that Executive relocate, or regularly
perform duties (other than normal travel in the ordinary course of
the Company's business and other than to or in Phoenix, Arizona
provided that the Company reimburses Executive for the expenses
incurred during the term of this Agreement in connection with any
relocation thereto which expenses shall include the cost of
temporary furnished housing for executive and his spouse in
Phoenix for the duration of the assignment, but no longer than the
term of this Agreement, and the reasonable costs of maintaining
Executive's unoccupied home in Saratoga, California, plus an
amount equal to any income taxes owed by Executive as a result of
such reimbursements), outside a twenty-five mile radius of
Cupertino, California and Executive refuses to comply with such
condition of employment, promptly upon any of such events, the
Company shall provide Executive with (i) his base salary at the
applicable rate and otherwise in accordance with the provisions of
paragraph III.C. of this Agreement for twelve (12) months after
such termination, which base salary shall be paid in a lump-sum
payment, (ii) his incentive compensation, if any, with respect to
the fiscal year of the Company during which such termination
occurred on a prorated basis, such incentive compensation to be
paid on the date of the Company's normal distribution of incentive
compensation for the year in question and (iii) any compensation
due and not yet paid pursuant to paragraph III.C.2.a. of this
Agreement.
c. In exchange for the Company's payments to Executive pursuant
to paragraph III.D.4.b., Executive shall execute and deliver to
the Company, in a form acceptable to the Company, a legally
effective release and waiver of all claims, complaints, and causes
of action (other than claims or rights to compensation or
severance payments pursuant to paragraphs III.C. and III.D.
hereof), whether known or unknown, which he has or may have
against the Company. The Company shall deliver to Executive the
base salary lump sum payment set forth in paragraph III.D.4.b.(i)
and other compensation, if any, set forth in paragraph
III.D.4.b.(iii) within fourteen (14) days of the expiration of any
legally applicable rescission or revocation period for Executive's
release and waiver of claims, and shall deliver his incentive
com-
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pensation, if any, as soon as practicable but in no event before
delivery of his base salary lump sum payment; delivery of the
base salary lump sum payment and such additional compensation and
incentive compensation, if any, will not occur if Executive
revokes or rescinds his release and waiver, or if Executive does
not deliver the executed waiver and release to the Company before
the expiration of any applicable rescission or revocation period.
All deliveries under this paragraph shall be accomplished in
accordance with the provisions of paragraph V.
5. Voluntary Resignation by Executive. Executive may terminate his
employment at any time during the term of this Agreement upon thirty
(30) days prior written notice to the Company. If Executive
voluntarily terminates his employment with the Company pursuant to
this paragraph III.D.5., the Company shall pay him (i) his base salary
at the rate then in effect as set forth in paragraph III.C. of this
Agreement through the date of such termination, such base salary to be
paid not later than the date of termination, (ii) his incentive
compensation, if any, with respect to the fiscal year of the Company
during which such termination occurred on a prorated basis, such
incentive compensation to be paid on the date of the Company's normal
distribution of incentive compensation for the year in question and
(iii) that portion of any compensation due and not yet paid pursuant
to paragraph III.C.2.a. of this Agreement. Thereafter, the Company
shall have no further obligation under this Agreement to Executive,
Executive's estate or beneficiary, or to any other party (as opposed
to obligations, if any, under any other agreement).
E. Service. Throughout the term of his employment with the Company,
Executive will devote his full time and attention to the business and
affairs of the Company and its subsidiaries and affiliates, and will not,
without the express written consent of the President, Honeywell Industrial
Automation and Control, become a director or employee of any other company
or organization, although he may become an uncompensated member of the
Board of Directors of a not-for-profit religious, educational or charitable
organization or a paper industry trade organization. Executive will use
his reasonable efforts to promote the interests of the Company and its
subsidiaries and affiliates.
IV. COVENANTS.
A. Reasonableness. Executive confirms that he has not signed any other
agreement, and has not accepted any obligation, which would interfere or
conflict with his ability to comply with this Agreement. He agrees that he
will be employed by the Company in a position of trust, and that in the
course of his employment he will have access to information which is
important to the success of the business, and that he is or will become
familiar with the Company's strategies, plans, secrets, customers and
vendors. He agrees that the Company has expended considerable time and
expense in developing its business reputation and good will, and that the
Company has a legitimate interest in protecting its business information,
its ties with customers and vendors, and its good will and business
reputation.
In addition, Executive acknowledges and agrees that in the course of his
employment with Measurex, he had access to, and created, information and
strategic plans which were integral to the success of Measurex's business;
Executive further acknowledges and agrees that, due to his unique history
with and knowledge of Measurex, he is in a position to significantly and
irrevocably damage the value of Measurex to Honeywell, should he in any
manner compete with the lines of business of the Company with which
Executive was actively involved after the Effective Time.
Executive acknowledges and agrees that the restrictions contained in this
Agreement are reasonable and will not prevent him from finding other
employment if his employment with the Company ends. He also acknowledges
and agrees that if he uses the Company's confidential information, or
competes with the Company in violation of the terms of this Agreement, that
he will be causing the Company irreparable harm.
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B. Consideration. Executive agrees that the promises and agreements made
by the Company in this Agreement are full and complete consideration for
all promises and agreements made by him herein, including his agreement to
all covenants contained in this Agreement.
C. Covenants.
1. Nondisclosure of Trade Secrets and Confidential Information.
Executive realizes that during his employment with the Company, he
will acquire or become acquainted with the Company's and Honeywell's
trade secrets and confidential information. He agrees that while he
works for the Company, and after his employment with the Company ends
(no matter what causes his employment to end), he will not reveal or
make accessible to anyone any Company or Honeywell trade secrets or
confidential information, except when he does so in the ordinary
course of the Company's business and for the Company's benefit. He
also agrees that he will not use Company or Honeywell trade secrets or
confidential information in any way other than for the benefit of the
Company. He understands and agrees that "confidential information"
includes any information or compilations of information that derive
independent economic value from not being generally known or readily
ascertainable by proper means by other persons and which relate to any
aspect of the Company's or Honeywell's business, including but not
limited to information relating to the Company's or Honeywell's
technology, processes, systems and products, research and development,
philosophies and strategies, product design and manufacturing
information, buying habits and preferences of present and prospective
custom- ers, pricing and sales policies, sales techniques and
concepts, information pertaining to current or pending bids and
proposals, and vendor and customer lists. Any information which he
obtains at the Company while he is employed there which he has reason
to believe to be confidential information, or which is treated by the
Company or Honeywell as being confidential information, will be
considered to be confidential information for purposes of this
Agreement.
2. Conflicts of Interest. During Executive's employment with the
Company, he agrees to avoid relationships with individuals or
businesses which might impair or seem to impair the proper performance
of his responsibilities at the Company. He agrees not to become
involved with any activity if that activity:
a. Competes with the Company or Honeywell or provides services
or assistance to a competitor of the Company or Honeywell; or
b. Interferes in any way with his Company duties, such as
requiring Company time or facilities; or
c. Embarrasses the Company or Honeywell or interferes with the
Company's or Honeywell's ability to meet its objectives.
Executive understands that he may not use the Company's facilities or
identifications (such as telephone number or address) to operate
another business, profession, or to do any other work on his own
behalf or for another employer, either during the term of his
employment with the Company or thereafter.
3. Non-competition.
a. Period of Non-Competition. Executive agrees that for a
period which ends either two (2) years after his separation from
employment with the Company, or three (3) years after the
Effective Time, whichever occurs later, no matter why his
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employment ends and regardless of whether the termination of his
employment was voluntary or involuntary, he will not
(1) directly or indirectly enter into the employ of, or
render or engage in any services to, any person, firm,
corporation, or organization which is a competitor of
Honeywell or the Company with respect to (i) products which
the lines of business of Honeywell or the Company with which
Executive was actively involved during the term of his
employment with the Company (the "Relevant Lines of
Business") are producing, or services which the Relevant
Lines of Business are providing, at that time, or (ii)
products or services which Executive has reason to know the
Relevant Lines of Business has plans to produce or provide
within eighteen months of that time, or (iii) products which
Honeywell or the Company has produced or services which
Honeywell or the Company has provided at any time subsequent
to the Effective time (competitors with respect to (i)
through (iii), above, are hereinafter referred to as
"Competitor"), where Executive would be performing services
for the competitor within the United States of America,
Asia, Europe, or any other country in which the Relevant
Lines of Business do business on the date of Executive's
separation from employment with the Company; or
(2) directly or indirectly serve as a partner, shareholder,
creditor, director, officer, principal, agent, employee,
trustee, consultant or advisor for or on behalf of any such
Competitor. The ownership of less than five percent (5%) of
any class of the outstanding securities of any corporation
whose shares are traded on a U.S. national securities
exchange or quoted on The Nasdaq Stock Market, even though
such corporation may be a Competitor, shall not be deemed to
constitute an interest in such Competitor which violates
clause (2) of the immediately preceding sentence.
b. Solicitation of Other Employees. Executive agrees that for a
period which ends either two (2) years after his separation from
employment with the Company, or three (3) years after the
Effective Time, whichever occurs later, no matter why his
employment ends and regardless of whether it was voluntary or
involuntary, he will not, directly or indirectly, solicit to
employ any employee of Honeywell or the Company or employ any
employee of Honeywell or the Company; provided, however, that the
foregoing restriction shall not preclude Executive from employing,
either in response to any general solicitation for employment or
other similar method, any individual whose total annual
compensation, including salary and incentive compensation, is less
than seventy thousand ($70,000.00), or where, notwithstanding
Executive's reasonable inquiry, he is unaware of such individual's
employment with Honeywell or the Company.
c. Survives Expiration of Agreement. Executive agrees that the
covenants contained in this Agreement, including those in this
paragraph IV.C.3., will continue in effect after the termination
of his employment with the Company, and will continue in effect
after the termination of this Agreement.
4. Intellectual Property.
The Parties agree:
a. All right, title and interest in and to any invention, design, or
development, patentable or not, which Executive first conceives and
reduces to writing or first reduces to practice either individually or
jointly with others, and which either (i) arose out of his employment
with Measurex or (ii) which arises out of his employment with the
Company, will be the property of the Company. Executive will
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promptly disclose all such inventions, designs or developments to the
Company and execute all papers necessary to assist the Company in
obtaining patents or any other form of protection in any and all
countries on such inventions, designs, or developments, patentable or
not, and for assigning same to the Company; and
b. All right, title and interest in all copyrightable material and
works of authorship which Executive conceives and reduces to writing
or originates either individually or jointly with others, and which
either (i) arose out of his employment with Measurex, or (ii) arises
out of his employment with the Company will be the property of the
Company. Executive will execute all papers and perform all other acts
necessary to assist the Company in obtaining copyrights on such
materials in any and all countries; and
c. All proprietary, legally protectable know-how, trade secrets
information, and related material or information conceived and reduced
to writing or originated by Executive, either individually or jointly
with others and which either (i) arose out of his employment with the
Measurex, or (ii) arises out of his employment with the Company, shall
be the property of the Company; and
d. Executive further agrees to assign and hereby does assign to the
Company all rights, title, and interest in and to all inventions,
designs, and developments, patentable or not, copyrightable material,
legally protectable know-how, trade secrets and any works of
authorship which either (i) arose out of his employment with Measurex,
or (ii) arises out of his employment with the Company; and
e. Executive will disclose promptly to the Company all ideas,
discoveries, improvements and inventions (hereinafter collectively
called "Invention" or "Inventions") conceived and reduced to writing,
reduced to practice or made by him either individually or jointly with
others, and which (i) arose prior to the Effective TIme out of his
employment with Measurex, or (ii) arises during the term of his
employment with the Company, which (A) relate to the Relevant Lines of
Business's products at the time of the Invention or applicable to or
useful therewith, or (B) relate to the Relevant Lines of Business's
manufacturing or other processes or procedures at the time of the
Invention or to machinery or apparatus useful in connection therewith,
or (C) relate to the Relevant Lines of Business's investigations or to
the nature of the business of the Relevant Lines of Business at the
time of the Invention, or (D) results or relates to any work Executive
may do on behalf or at the request of the Company. All such Inventions
which Executive is obligated to disclose, whether patented or not,
shall be and remain the property of the Company or its nominees,
successors or assigns; and
f. The provisions of paragraphs IV.C.4.a. through e. of this
Agreement shall not apply to any Invention for which no equipment,
supplies, facility or trade secret information of Measurex, Honeywell
or the Company was used and which was developed entirely on
Executive's own time, and (1) which does not relate (a) directly to
the business of the Company or the Relevant Lines of Business or (b)
to the Company's actual or anticipated research or development, and
(2) which does not result from any work performed by Executive for the
Company.
g. Executive will assist the Company and its nominees, successors
and assigns, upon request, in every proper way during and following
the period of his employment by the Company, at no expense to
Executive, to obtain and maintain for the benefit of the Company and
its nominees, successors and assigns, patents in any and all countries
for Inventions which Executive is obligated to assign. Such
assistance shall include, but not be limited to, the execution and
delivery of specific assignments of any such Invention and all
domestic and foreign patent rights
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therein, and all other papers and documents of every nature which
relate to the securing and maintenance of such patent rights, and
the performance of all other lawful acts, such as the giving of
testimony in any interference proceedings, infringement suits or
other litigation, as may be deemed necessary or advisable by the
Company or its nominees, successors or assigns; in providing such
assistance, Executive shall be entitled to reimbursement of all
reasonable out-of-pocket expenses and, if services are provided
by Executive after the period of his employment by the Company,
to reasonable compensation for the time spent by Executive in
performing such services; and
h. This paragraph IV.C.4. of this Agreement shall be binding on
Executive, his heirs and successors, and may be transferred by
the Company.
5. Employer's Property. Executive acknowledges that all items of any
and every nature or kind created or used by Executive (including, but
not limited to, equipment, automobiles, credit cards, books, records,
reports, files, manuals, literature, confidential information or other
materials or authorship of copyrightable materials) pursuant to
Executive's employment by the Company, or furnished by the Company to
Executive, shall remain and be the exclusive property of the Company
at all times and shall be surrendered to the Company, in good condi-
tion, normal wear and tear excepted, promptly on the termination of
Executive's employment irrespective of the time, manner or cause of
the termination. Any information of a proprietary and/or confidential
nature which relates to Honeywell or the Company and which is stored
in Executive's own computer or computer memory medium or the like
shall be destroyed by Executive upon termination of his employment
with the Company unless otherwise directed by the Company.
D. Continuing Obligation. Notwithstanding the cessation of any payments
provided by Paragraph III.C. herein, upon the termination of this Agreement
or termination of Executive's employment pursuant to Paragraph III.D.,
Executive shall not be relieved of his obligations to perform the covenants
contained in Paragraphs IV.C.1., 2., 3., 4., and 5. The requirements and
obligations imposed on Executive and the Company by Paragraphs IV.C.1., 2.,
3., 4., and 5. of this Agreement survive the expiration of Executive's
employment with the Company, and the termina- tion of all other provisions
of this Agreement.
E. Remedies.
1. Injunctive Relief. Executive acknowledges and agrees that, without
prejudice to any other rights of the Company, in the event of his
violation or attempted violation of any of the covenants contained in
Paragraphs IV.C.1., 2., 3., 4., and 5. of this Agreement, an interim
injunction may be granted immediately by any court of competent
jurisdiction. Executive agrees that, in addition to injunctive relief,
the Company shall be entitled to any and all other legal and equitable
relief, including money damages caused by any breach of this
Agreement.
2. Executive's Claims Can Not Preclude Enforcement of Covenants by
the Company. Executive understands and agrees that the Company has a
material interest in preserving the relationship it has developed with
its customers against impairment by his competitive activities.
Accordingly, Executive agrees that the restrictions and covenants
contained in Paragraphs IV.C.1., 2., 3., 4., and 5., and his
agreement to observe them by his execution of this Agreement, are of
the essence to this Agreement and constitute a material inducement to
the Company to enter into this Agreement and to employ Executive, and
that the Company would not enter into this Agreement absent his
agreement to abide by the restrictions and covenants contained in
Paragraphs IV.C.1., 2., 3., 4., and 5. of this Agreement.
Furthermore, any claim or cause of
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action by Executive against the Company, whether predicated on
this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Company of the covenants or restrictions
contained herein.
F. Revisions by Court. If any provision in this Agreement,
including, but not limited to, the provisions and covenants contained
in Paragraphs IV.C.1., 2., 3., 4., and 5. of this Agreement, are
found by a court of competent jurisdiction to be unenforceable as
written, Executive and the Company hereby specifically and irrevocably
authorize and request said court to revise the unenforceable
provisions in a manner which shall result in the provisions being
enforceable while remaining as similar as legally possible to the
purpose and intent of the original.
V. NOTICES. Any notice, demand, request, amendment, waiver or other
communication under this Agreement shall be in writing and shall be deemed
to have been duly given (i) on the date of delivery if delivered to the
address of the party specified below (including delivery by courier), or
(ii) on the fifth day after mailing if mailed to the party to whom notice
is to be given to the address specified below, by first class mail,
certified or registered, return receipt requested, postage prepaid, or
(iii) on the date of transmission if sent by facsimile transmission to the
facsimile number given below, and telephonic confirmation of receipt is
obtained promptly after completion of transmission, as follows:
If to the Company: c/o Honeywell Inc.
00000 X. Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
ATTN: President, Industrial Automation and Control
Facsimile: (000) 000-0000
with a copy to: Honeywell Inc.
Honeywell Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
ATTN: General Counsel
Facsimile: (000) 000-0000
If to Executive: Xx. Xxxx Xxxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Any party may from time to time change its address or facsimile number for the
purpose of notices to that party by a similar notice specifying a new address
or facsimile number, but no such change shall be deemed to have been given
until it is actually received by the party sought to be charged with its
contents.
VI. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the employment of Executive. Any and all
previous agreements, arrangements or understandings, written or oral, express
or implied, between the parties or on their behalf, relating to the employment
of Executive by the Company or Measurex are terminated and canceled, and each
of the parties releases and forever discharges the other of and from all manner
of actions, causes of action, claims and demands whatsoever, under or relating
to any such agreements, arrangements or understandings.
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VII. AMENDMENTS; WAIVERS.
A. This Agreement may be amended or modified, and any of the terms,
covenants, or conditions hereof may be waived only by a written
instrument executed by the parties hereto, or in the case of a waiver, by
the party waiving compliance. Executive may not sign a waiver or
amendment on behalf of the Company.
B. Any waiver or amendment must be communicated in accordance with the
provisions of Paragraph V.
C. Any waiver by Executive or by the Company of a breach of this
Agreement shall not result in a waiver of any other breach by either
party to this Agreement. This means that if a party does not enforce a
particular provision of this Agreement at a particular time, that will
not waive such party's right to enforce that same provision at another
time, or to enforce any other provision at any time.
VIII. SUCCESSORS AND ASSIGNS. Executive understands and agrees that he cannot
assign or otherwise transfer any of his obligations under this Agreement. He
understands and agrees that the Company may, at its option, assign or transfer
its rights under this Agreement to another organization or individual if there
is a merger, consolidation, transfer, or sale of all or substantially all of
the assets or stock of the Company, subject to the assumption of the Company's
obligations hereunder by such assignee or transferee. Executive understands
and agrees that if there is an assignment or transfer of the Company's rights
under this Agreement, then, subject to the assumption of the Company's
obligations hereunder by such assignee or transferee, this Agreement will
continue to be effective, will continue to bind him, and will inure to the
benefit of the organization or individual to whom the transfer or assignment
is made.
IX. SEVERABILITY. If any part of this Agreement is found to be invalid or
unenforceable, the parties agree that the invalid or unenforceable part of the
Agreement shall be considered deleted from the Agreement and the rest of the
Agreement will be unaffected and shall continue in full force and effect. The
parties agree that any provision of this Agreement that is found unenforceable
because it is overbroad will be limited to the extent that it is necessary to
make that provision enforceable under the applicable law. The parties recognize
the uncertainty of the law and agree that this Agreement should be enforced as
fully as the law will allow.
X. DELAWARE LAW AND VENUE. This Agreement will be construed and enforced in
accordance with the laws of the State of Delaware without regard to principles
of conflicts of law. The parties hereby consent to submit to the exclusive
jurisdiction of the courts of the State of Delaware and of the United States of
America located in the District of Delaware for any actions, suits, or
proceedings arising out of or relating to this Agreement, and the parties
further agree that service of any process, summons, notice or document by U.S.
registered mail to the last known address (or any mode of service recognized to
be effective by applicable law) shall be effective service of process for any
action, suit or proceeding brought in such court. The parties agree that any
dispute relating to or arising out of this Agreement shall be venued in the
State of Delaware.
XI. HEADINGS The headings used in this Agreement are for convenience only
and are not to be construed in any way as additions to or limitations of the
covenants and agreements contained in it.
XII. COUNTERPARTS This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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XIII. EXECUTIVE'S ACKNOWLEDGMENT OF VOLUNTARY AGREEMENT. Executive
acknowledges that he has carefully read this Agreement, that he understands its
terms and its legal effect, that all agreements between the Company and
Executive relating to the subjects covered by this Agreement are contained in
this Agreement, and that Executive has entered into this Agreement voluntarily
and not in reliance upon any promises or representations made by the Company
other than those made in this Agreement itself.
BY SIGNING BELOW, THE COMPANY AND EXECUTIVE AGREE TO THE TERMS OF THIS
AGREEMENT AS LISTED AND STATED ABOVE.
HONEYWELL ACQUISITION CORP.
Dated: January 26, 1997 By: /s/ Xxxxxx X. Xxxxxxxxxx
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Its: Vice President
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Dated: January 26, 1997 /s/ Xxxx Xxxxxxxxx
------------------------
Xxxx Xxxxxxxxx
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