EXHIBIT 10.18
EMPLOYMENT AGREEMENT
Employment Agreement, dated as of May 30, 1997 (the "Agreement"),
among Teletrac, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx Xxxxxx, c/o Teletrac, Inc., 000 Xxxx Xxxxxx, Xxxxx Xxxxxxx, XX
00000 (the "Executive").
Concurrently with the execution and delivery of this Agreement,
the Executive is selling or agreeing to sell to Axsys Technologies,
Inc., a Delaware corporation ("Axsys"), all of Executive's shares of
capital stock of the Company, and Axsys is acquiring or agreeing to
acquire the remaining outstanding shares of capital stock of the
Company from the Company's other stockholders, pursuant to a Stock
Purchase Agreement, dated May 27, 1997 (the "Stock Purchase
Agreement"), between Axsys and the stockholders of the Company;
The Company desires to continue to employ the Executive after the
date hereof (the "Effective Date"), upon the terms and subject to the
conditions set forth in this Agreement; and
The Executive wishes to accept such employment with the Company,
upon the terms and subject to the conditions set forth in this
Agreement.
Therefore, the parties hereto hereby agree as follows:
1. Term. The term of employment under this Agreement (the "Term")
shall be for the period commencing on the Effective Date and ending on
the third anniversary of the Effective Date, unless terminated
pursuant to Section 6 hereof prior to the completion of the term.
Unless Executive or the Company shall have otherwise informed the
other in writing not later than ninety (90) days prior to the
expiration of the Term and provided Executive's employment has not
therefore been terminated pursuant to this Agreement, Executive shall
continue to be employed by the Company following the expiration of the
Term; provided, however, that:
(a) such continued employment shall be on an at-will basis
with both the Company and Executive having the right to terminate
such employment relationship at any time with or without cause or
notice; and
(b) during such continued employment, Executive shall be
entitled to the same salary and benefits as were in effect
immediately prior to expiration of the Term (other than the
Incentive Plan (as such term is defined in Section 3(b) hereof)).
2. Employment.
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(a) Position. The Executive will serve as President of the
Company and perform such duties as President as are assigned to
the Executive by the Board of Directors (the "Board") of the
Company. The location at which Executive shall be expected to
perform his duties shall be set in Santa Barbara, California, or
within an area within twenty-five (25) miles radius of Santa
Xxxxxxx, and neither Axsys nor the Company may change this
provision or require relocation without Executive's express
written consent.
(b) Obligations. During the Term, excluding periods of
vacation and sick leave to which the Executive is entitled,
Employee shall devote his full time, attention and reasonable
best efforts to the affairs of the Company; provided, however,
that Executive may attend to his and his family's outside
investments (which are passive investments) and may engage in
activities involving charitable, educational, religious and
similar types of organizations, speaking engagements and similar
type activities to the extent that such other activities do not
inhibit or prohibit the performance of Employee's duties under
this Agreement, or conflict with the business of the Company.
3. Salary.
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(a) Base Salary. The Company agrees to pay or cause to be
paid to the Executive during the term of his employment under
this Agreement a salary at the rate of $225,000 per fiscal year
(the "Salary"). The Salary shall be payable in accordance with
the normal payroll practices of the Company then in effect and
subject to all applicable taxes required to be withheld by the
Company pursuant to federal, state or local law. Subject to the
Company's right to withhold pursuant to this Section 3, the
Executive shall be solely responsible for income and earnings
taxes imposed on the Executive by reason of any cash or non-cash
compensation and benefits provided hereunder. The Salary shall be
reviewed annually and shall be subject to normal increases as may
be determined by the Board of Directors of the Company in its
sole discretion.
(b) Employment Bonus. Subject to Sections 4.3(b) and 4.3(c)
of the Incentive Plan, the Company agrees to pay or cause to be
paid to the Executive, as a bonus in respect of his employment
during each of the fiscal years ending December 31, 1997,
December 31, 1998 and the thirteen months ending January 31,
2000, the awards, if any, to which Executive is entitled under
and in accordance with the terms of the Teletrac, Inc. Management
Incentive Compensation Plan (the "Incentive Plan") determined by
the Committee (as defined therein) in respect of each such year
or period, on or before the 105th day following the end of each
such fiscal year (or, in the case of an award for the thirteen
months ending January 31, 2000, on or before the 105th day
following the end of the fiscal year ending December 31, 1999).
The Company shall not amend the terms of the Incentive Plan so as
to adversely affect the rights of Executive thereunder. Executive
understands and agrees that any such bonus will be treated by
Executive and the Company as compensation for tax purposes and
that payment of any such bonus is subject to the Company's
obligations to withhold taxes from any such payments.
4. Employee Benefits. The Executive shall be entitled to
participate in all employee benefit plans, practices and programs
maintained by the Company and made available to employees generally
(collectively, the "Company Benefit Plans"), including, without
limitation, any pension, retirement, profit sharing, savings, medical,
hospitalization, disability, dental, life or travel accident insurance
benefit plans, vacation and sick leave, as in effect from time to
time; provided, however, that the benefits to Executive under the
Company Benefit Plans shall, in the aggregate, be no less favorable to
Executive (determined after giving effect to any benefits granted to
Executive under the Axsys Executive Plans) than the benefits to
Executive under the Company Benefit Plans as in effect immediately
prior to the Effective Date and the terms of the Company's 401(k) Plan
shall be amended to be consistent with the Axsys 401(k) Plan. Schedule
I hereto sets forth a true and complete list of all Company Benefit Plans as in
effect immediately prior to the Effective Date. The Executive's participation in
the Company Benefit Plans shall be on the same basis and terms as are applicable
to employees of the Company generally. Axsys may determine to offer Executive
the opportunity to participate, on terms determined by Axsys, in the Axsys
Technologies Inc. Long-Term Stock Incentive Plan, the Axsys Technologies, Inc.
Supplemental Revenue Growth Incentive Plan, the Axsys Technologies, Inc. cash
bonus plan and such other plans of Axsys, in each case as determined by Axsys
(collectively, the "Axsys Executive Plans"). There shall be included in the
definition of the Company Benefit Plans the key man life insurance policy
insuring the life of Executive in the amount of $350,000 and having a current
premium of approximately $2,350 per annum. The Company shall maintain such
policy (or a similar policy if such policy lapses or is cancelled or if a
similar policy is otherwise available) and shall pay the policy premium while
Executive is employed with the Company or thereafter in accordance with Section
7 hereof, provided (i) such policy (or similar replacement policy) is available
and (ii) the annual premium payable in respect thereof shall not exceed 150% of
the current cost, and provided further, that such policy or similar replacement
policy shall be subject to whatever limitations are applicable to any renewal or
replacement thereof. If the current policy or any replacement or renewal thereof
is not available for the benefit amount set forth above, the premium to be borne
by the Company as set forth herein, shall continue to be the obligation of the
Company and Executive may, at his election decide to either (a) retain such
insurance up to the maximum benefit available at the premium to be paid by the
Company or (b) pay the increased additional premium amount to obtain the maximum
benefit described above. Executive may name the beneficiary under such policy as
Executive shall determine. Executive waives any right to any payment under the
Company's unwritten discretionary cash bonus practice in respect of any period
commencing February 1, 1997, and represents and warrants that no such payment to
Executive have been made thereunder.
5. Other Benefits.
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(a) Expenses. The Executive shall be entitled to receive
prompt reimbursement of all expenses reasonably incurred by him
in connection with the performance of his duties hereunder.
(b) Office and Facilities. The Executive shall be provided
with office space, equipment, supplies and such other facilities
and support as the Company deems necessary or appropriate for the
performance of the Executive's duties hereunder.
6. Termination. The Executive's employment hereunder may be
terminated under the following circumstances:
(a) Death. Upon death of the Executive.
(b) Disability. The Company may terminate the
Executive's employment after having established the
Executive's Disability (as defined in Standard
Insurance Company, Group Long Term Disability Insurance
Policy, Policy No. 07825-A). A determination of
Disability shall be made by a physician satisfactory to
both the Executive and the Company, which physician's
determination as to Disability shall be made within ten
(10) days of the request therefor and shall be binding
on all parties; provided, however, that if the
Executive and the Company do not agree on a physician,
the Executive and the Company shall each select a
physician and these two together shall select a third
physician, which third physician's determination as to
Disability shall be binding on all parties. The
Executive shall be entitled to the compensation and
benefits provided for under this Agreement for any
period prior to the establishment of the Executive's
Disability during which the Executive is unable to work
due to a physical or mental infirmity. Notwithstanding
anything contained in this Agreement to the contrary,
until the Termination Date specified in a Notice of
Termination (as each term is hereinafter defined )
relating to the Executive's Disability, the Executive
shall be entitled to return to his position with the
Company as set forth in this Agreement, in which event
no Disability of the Executive will be deemed to have
occurred.
(c) Cause. The Company may terminate the
Executive's employment for "Cause." For purposes of
this Agreement, "Cause" shall mean a good faith
determination by the Company that the Executive (i)
willfully failed to perform the Executive's duties
under this Agreement (other than a failure resulting
from the Executive's incapacity due to physical or
mental illness) which failure continued for a period of
at least ten (10) days after a written notice of demand
for substantial performance has been delivered to the
Executive specifying the manner in which the Executive
has failed to substantially perform, (ii) is in breach
of the Noncompetition Agreement entered on the date
hereof between Executive and Axsys or (iii) willfully
engaged in conduct which is materially injurious to the
Company, monetarily or otherwise. No act or failure to
act on the Executive's part shall be considered
"willful" unless the Executive has acted or failed to
act with an absence of good faith and without a
reasonable belief that his action or failure to act was
in the best interest of the Company.
(d) Voluntary. The Executive may voluntarily
terminate his employment at any time without the
Employer's consent. Without limiting the generality of
the foregoing, the Executive may terminate his
employment for "Good Reason". For purposes of this
Agreement, "Good Reason" shall mean a good faith
determination by the Executive that (i) the Company has
failed to pay when due any amounts required to be paid
pursuant to Section 3(a), 3(b) or 5(a) of this
Agreement, (ii) the Company has materially breached its
obligations under Section 4 of this Agreement, (iii)
the Company has breached its obligation under the
second sentence of Section 2(a) of this Agreement, (iv)
there has occurred a material lessening of Executive's
duties and responsibilities under this Agreement, (v)
the Company or Axsys has reached their respective
obligations under Section 5(d) of the Stock Purchase
Agreement, (vi) Axsys has breached its obligations
under either (x) Section 1.3(b) of the Stock Purchase
Agreement with respect to the registration of Buyer
Shares (as defined therein) or (y) the Stockholder
Agreement (as defined in the Stock Purchase Agreement)
with respect to the exchange of Axsys Common Stock for
Retained Shares (as such capitalized terms are defined
in the Stockholder Agreement); (vii) there has been
entered a final, non-appealable order of a court of
competent jurisdiction that Axsys has breached its
indemnification obligations under Section 7 of the
Stock Purchase Agreement arising from a material breach
by Axsys of its representations and warranties
contained in the Stock Purchase Agreement. Executive
shall not be permitted to terminate his employment
pursuant to this Section 6(d) for Good Reason without
providing the Company and Axsys at least ten (10)
business days prior written notice specifying in
reasonable detail the alleged breach or circumstances
allegedly constituting Good Reason and permitting the
Company (or Axsys, as the case may be) an opportunity
to cure such alleged breach or circumstances within
such ten-day period.
(e) Notice of Termination.
(i) Termination by the Company. Any purported
termination (except for death) by the Company
shall be communicated to Executive by written
"Notice of Termination by the Company" to the
Executive. For purposes of this Agreement, a
"Notice of Termination by the Company" shall mean
a notice which indicates 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 the Executive's employment under
the provision so indicated. For purposes of this
Agreement, no such purported termination of
employment shall be effective without such Notice
of Termination by the Company.
(ii) Termination by Executive. The Executive
shall provide notice of Executive's voluntary
termination under Section 6(d) above by written
"Notice of Termination by Executive." For purposes
of this Agreement, a "Notice of Termination by
Executive" shall mean a notice which indicates
that Executive is voluntarily terminating his
employment pursuant to Section 6(d) and, in the
case Executive is voluntarily terminating his
employment for Good Reason (which pursuant to
Section 6(d) shall follow the expiration of the
ten business day notice period and the failure of
the Company during such period to have cured any
alleged breach or circumstances), the specific
provision of Good Reason relied upon, setting
forth in reasonable detail the facts and
circumstances claimed to provide a basis for
termination of the Executive's employment under
the provision so indicated. For purposes of this
Agreement, no such purported termination of
employment shall be effective without such Notice
of Termination by the Executive.
(f) Termination Date, Etc. "Termination Date"
shall mean: (i) in the case of the Executive's
death, the date of death; (ii) in all other cases
of termination by the Company, provided, however,
that if the Executive's employment is terminated
by the Company for Cause or due to Disability, the
date specified in the Notice of Termination by the
Company shall be at least thirty (30) days from
the date the Notice of Termination by the Company
is given to the Executive, provided that, in the
case of Disability, the Executive shall not have
returned to the full-time performance of the
employment duties hereunder during such period of
at least thirty (30) days; or (iii) in the case of
voluntary termination by Executive, with or
without Good Reason, the date specified in the
Notice of Termination by Executive, provided,
however, that such date shall not be more than
thirty (30) days from the date the Notice of
Termination by Executive is given to the Company.
7. Compensation Upon Termination. Upon termination of the
Executive's employment prior to the expiration of the Term, the
Executive shall be entitled to the following benefits:
(a) If the Executive's employment is terminated by the
Company for Cause or Disability of the Executive or by the
Executive without Good Reason, or as a result of the Executive's
death, the Company shall pay the Executive (or his estate) all
amounts earned or accrued hereunder through the Termination Date
but not paid as of the Termination Date in respect of Salary and,
(ii) reimbursement for any and all monies advanced or expenses
incurred in connection with the Executive's employment for
reasonable and necessary expenses incurred by Executive on behalf
of the Company for the period ending on the Termination Date.
Subject to Section 7(d) hereof, the Executive's (or his estate's)
entitlement to any other compensation or benefits shall be
determined in accordance with the Incentive Plan, Company Benefit
Plans and Axsys Executive Plans then in effect.
(b) If the Executive's employment by the Company shall be
terminated by the Company other than for Cause (and not
Disability of the Executive) or by Executive with Good Reason,
then the Executive shall be entitled to the benefits provided
below:
(i) the amounts specified in Section 7(a);
(ii) Salary payable after the Termination Date for the
balance of the Term (determined as if Executive's employment
had not terminated);
(iii) the right to receive 40% of any amounts payable after
the Termination Date under the Incentive Plan in respect of
Incentive Compensation Pool and the Additional Incentive
Compensation Pool (determined as if Executive's employment
had not terminated); and
(iv) Company Benefit Plans providing for medical,
hospitalization, dental, life and travel accident insurance
shall be maintained during the balance of the Term
(determined as if Executive's employment had not
terminated).
(c) The amounts provided for in this Section 7 shall be paid
within five (5) business days after the Executive's Termination
Date, provided, however, that any amounts payable under Section
7(b)(iii) shall be paid when provided for in Section 3(b). If the
Executive's employment is terminated by the Company for Cause or
Disability of the Executive or by the Executive without Good
Reason, then the Company shall extend to Executive, commencing on
the Termination Date, COBRA Benefits for a period of 18 months
(or such longer period as may be required by law), with all
premium costs and expenses (employee's and employer's portions)
to be borne by Executive. If the Executive's employment is
terminated by the Company without Cause (and not Disability of
the Executive) or by the Executive with Good Reason, then the
Company shall extend to Executive, commencing on the expiration
of the Term, COBRA Benefits for a period of 18 months (or such
longer period as may be required by law) with all premium costs
and expenses (employee's and employer's portions) to be borne by
Executive.
(d) Benefits. Except as set forth in Sections 7(b)(iii) and
7(b)(iv) hereof, the Executive's accrual of benefits under and
participation in the Incentive Plan, Company Benefit Plans and
Axsys Executive Plan providing for any employee benefits
("Benefits") will cease after the Termination Date and the
Executive will be entitled to Benefits accrued prior to the
Termination Date pursuant to such plans only as provided in such
plans. Nothing contained herein shall be deemed to limit in any
manner whatsoever the rights of the Executive to receive any
benefits under any insurance policies, including, but not limited
to, comprehensive general liability and directors' and officers'
liability and indemnification and reimbursement insurance
coverage, but only to the extent relating to any conduct or
activity engaged in by the Executive in his capacity as an
officer, employee, director of the Company prior to the
termination of his employment relationship with the Company;
provided, however, that Executive understands and agrees that
prior to the date hereof the Company has not maintained any such
insurance policies and after the date hereof neither the Company
nor Axsys shall have any obligations to maintain or make
available to or for the benefit of Executive any such insurance.
8. Effect of Termination.
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(a) Cooperation. In the event of Executive's
termination of employment, for whatever reason, for a period
of three years thereafter, upon written request by the
Company, the Executive agrees to cooperate with the Company
and to be reasonably available to the Company with respect
to continuing and/or future matters arising out of the
Executive's employment or any other relationship with the
Company, whether such matters are business-related, legal or
otherwise. With respect to each written request by the
Company for the Executive's cooperation or availability
under this Section 8, the Company agrees to pay the
Executive, for each day the Executive renders services to
the Company pursuant to such request, an amount per day
equal to the Executive's pro rata Salary applicable on the
Date of Termination and to reimburse the Executive for the
Executive's reasonable travel expenses incurred in complying
with the terms of this paragraph upon delivery by the
Executive to the Company of valid receipts for such
expenses. Notwithstanding anything contained herein to the
contrary, in no event (but subject to applicable law,
including any right of the Company, by subpoena or other
similar judicial order, to compel Executive's testimony as a
witness or otherwise or the production by Executive of
documents) shall the Executive be required to assist or
cooperate or remain available to provide such cooperation if
to do so would unreasonably interfere with the Executive's
conduct or activity of any employment, consulting or other
personal services undertaking or commitment. Moreover, in
the event that the Executive is required (as a result of the
foregoing provisions of this Section 8(a) and not as a
result of the exercise of the Company's rights (subject to
applicable law) to compel, by subpoena or other similar
judicial order, testimony or produce documents) to assist or
cooperate in any legal, regulatory or other similar
proceeding or matter, whether as a witness or otherwise, to
the extent that any actual or potential conflict of interest
exists or arises between the interests of the Executive and
those of the Company, Axsys or any of their Affiliates, the
Executive shall have the right to be represented by separate
counsel, the expense and cost of which shall be borne by the
Company or Axsys, as the case may be.
(b) Survival. The provision of Sections, 7, 8, 9, 10,
11, 12, 13 and 14 shall survive any termination of
Executive's employment.
9. Confidential Information. Executive shall not at any time
during the Term or thereafter disclose to any person or entity
any Confidential Information (as defined below) learned or
obtained by him while in the Company's employ, or use the same
for any purposes other than in the performance of his or her
duties as an employee. As used herein, the term "Confidential
Information" means all information disclosed to Executive or
known by Executive as a consequence of, or through employment,
including, without limitation the clients, customers, suppliers,
employees, consultants, computer or other files, projects,
products, computer disks or other media, computer hardware or
computer software programs, source and object codes, data,
programs, other works of authorship, information regarding plans
for research, development, new products, marketing plans,
financial information, methodologies, know-how, processes, trade
secrets, practices, projections, forecasts, formats, systems data
gathering methods or strategies and other Intellectual Property
(as defined in the Stock Purchase Agreement) of the Company and
any of its "Affiliates." As used herein, "Affiliates" means any
entity that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control with, the Company. Notwithstanding the immediately
preceding sentence, Confidential Information shall not include
any information that (a) is, or becomes, a part of the public
domain or generally available to the public other than as a
result of a breach by Executive of this confidentiality
provision; (b) is or becomes available to Executive from a source
other than the Company, provided at the time it is made so
available the Executive had no actual knowledge after due inquiry
that such source was bound by a confidentiality agreement with
the Company with respect to such information; or (c) which is
required by law to be disclosed.
10. Inventions.
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(a) The Executive agrees that all inventions, modifications,
innovations, discoveries or other developments related directly
or indirectly to the Company's business (collectively
"Inventions") made by Executive while employed by the Company
shall be the property of the Company and that the Company shall
have the exclusive proprietary rights and ownership in them.
(b) Executive will make full and prompt disclosure to the
Company of all Inventions, which are created, made, conceived or
reduced to practice by Executive or jointly with others while
employed by the Company, whether or not during normal working
hours or on the premises of the Company, subject to California
Labor Code Section 2870 to the extent applicable.
(c) Executive agrees to assign and does hereby assign to the
Company (or any person or entity designated by the Company) all
of Executive's right, title and interest in and to all Inventions
and all related patents, patent applications, copyrights and
copyright applications. This Section 9 shall not apply to
inventions which do not relate to the present or planned business
or research and development of the Company and which are made and
conceived by the Executive not during normal working hours, not
on the Company's premises and not using the Company's tools,
devices, equipment or Confidential Information. Executive
understands that, to the extent this Agreement shall be construed
in accordance with the laws of any state (such as California
Labor Code Section 2870 to the extent applicable) which precludes
a requirement in any employee agreement to assign certain classes
of Inventions made by an employee, this Section 10 shall be
interpreted not to apply to any Invention which a court rules
and/or the Company agrees falls within such classes. The
Executive also hereby waives all claims to moral or equitable
rights in any Inventions.
(d) Executive agrees to cooperate fully with the Company,
both during and after the term of this Agreement, and at the
Company's sole expense, with respect to the procurement,
maintenance and enforcement of copyrights, patents and other
intellectual property rights (both in the United States and
foreign countries) relating to Inventions. Executive shall, at
the Company's expense, sign all papers, including, without
limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignments of priority
rights, and powers of attorney, which are reasonably necessary or
desirable in order to protect the Company's rights and interests
in any Invention. Executive further agrees that if the Company is
unable, after reasonable effort, to secure the signature of
Executive on any such papers, any executive officer of the
Company shall be entitled to execute any such papers as the agent
and the attorney-in-fact of the Executive, and the Executive
hereby irrevocably designates and appoints each executive officer
of the Company as Executive's agent and attorney-in-fact to
execute any such papers on Executive's behalf, and to take any
and all actions as the Company may deem necessary or desirable in
order to protect its rights and interest in any Inventions, under
the conditions described in this sentence.
(e) Executive acknowledges that the Company from time to
time may have agreements with other parties which impose
obligations or restrictions on the Company regarding Inventions
made during the course of work under such agreements or regarding
the confidential nature of such work. Executive agrees to be
bound by all such obligations and restrictions which are made
known to Executive and to take all action necessary to discharge
the obligations of the Company under such agreements.
11. Company Property. Upon any termination of the Executive's
employment, or at the Company's request, Executive shall return all
notebooks, memoranda, notes, records, papers, computer disks or other
documents and all photocopies, or duplicates of such documents or
materials, relating to the Company's (or any Affiliate's) business and
operations and all property associated with the Company (or any
Affiliate) in any way obtained by Executive while employed by the
Company, excluding such information, documents or material, which
becomes publicly known or publicly available, through no fault of
Executive.
12. Disclosure. Executive agrees to disclose the existence of
this Agreement to any prospective employer.
13. Noncompetition. While employed by the Company, Executive
shall refrain from actions and from undertaking interests in
competition or in conflict with the Company. The foregoing shall not
limit Executive's obligations under his Noncompetition Agreement,
dated the date hereof, between Executive and Axsys, entered into by
Executive pursuant to the Stock Purchase Agreement.
14. Miscellaneous Provisions.
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(a) Notices. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will
be deemed to have been duly given when (a) delivered by hand
(with written confirmation of receipt), or by Federal Express,
(b) sent by telecopier (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt
requested), in each case to the appropriate addresses and
telecopier numbers set forth below (or to such other addresses
and telecopier numbers as a party may designate by notice to the
other parties):
If to Executive, to:
Xxxxxxx Xxxxxx
c/o Teletrac, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Telecopy: 000-000-0000
With a copy to:
Price, Xxxxxxx & Parma LLP
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xx Xxxxx
Phone: 000-000-0000
Telecopy: 000-000-0000
If to Company, to:
Xxxxxxx X. Xxxxxxx
c/o Axsys Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Telecopy: 000-000-0000
With a copy to:
Axsys Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Phone: 000-000-0000
Telecopy: 000-000-0000
(b) Jurisdiction; Service of Process. Any action or
preceding seeking to enforce any provision of, or based on any
right arising out of, this Agreement may be brought against any
of the parties in any Los Angeles County Court or United States
District Court located in Los Angeles County, and each of the
parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding
and waives any objection to venue laid therein. Process in any
action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world.
(c) Waiver. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure
nor any delay by any party in exercising any right, power, or
privilege under this Agreement or the documents referred to in
this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise
of such right, power or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this
Agreement or the documents referred to in this Agreement can be
discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by
the other party; (b) no waiver that may be given by a party will
be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed
to be a waiver of any obligation of such party or of the right of
the party giving such notice or demand to take further action
without notice or demand as provided in this Agreement or the
documents referred to in this Agreement.
(d) Entire Agreement and Modification: Beneficiaries. This
Agreement supersedes all prior agreements between the parties
with respect to its subject matter (including, without
limitation, the Letter Agreement by and among the Company, the
Executive and certain other stockholders of the Company dated
February 4, 1997, as amended) and constitutes a complete and
exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may
not be amended except by a written agreement executed by the
party to be charged with the amendment, and the parties hereby
expressly agree that no subsequent oral agreement to amend this
Agreement shall be binding. This Agreement shall not confer any
rights or remedies upon any person other than the parties and
their respective successors and permitted assignees; provided,
however, that this Agreement is intended to confer rights and
remedies upon Axsys and its Affiliates and their respective
successors and assignees. Subject to the immediately preceding
sentence, neither party may assign its rights or obligations
under this Agreement.
(e) Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction,
the other provisions of this Agreement will remain in full force
and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
(f) Section Headings, Construction. The headings of Sections
in this Agreement are provided for convenience only and will not
affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement. All words used in this Agreement will
be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
(g) Governing Law. This Agreement will be governed by the
laws of the State of California without regard to its conflicts
of laws principles.
(h) Set-off. Without limiting any other remedy available to
Axsys, the Company or any of their Affiliates, but subject to the
last sentence of this Section 14(h), Axsys and its Affiliates
shall have the option of setting off, against any obligation of
the Company under this Agreement (including any obligation of
Axsys or the Company under the Incentive Plan, but excluding,
while Executive is employed under this Agreement, the Company's
obligations (other than obligations of Axsys or the Company under
the Incentive Plan) to Executive while he is so employed and
excluding accrued and unpaid salary and vacation prior to
termination of employment), the amount of any Adverse
Consequences (as defined in the Stock Purchase Agreement) that
Axsys, the Company or any of their Affiliates may suffer (i) for
which Executive is liable under the terms of the Stock Purchase
Agreement or (ii) as a result of the breach by Executive of any
of his obligations under the Non-Competition Agreement. This
Section 14(h) constitutes a complete statement of the terms of
agreement by the parties with respect to set off rights of Axsys
and the Company with respect to their obligations under this
Agreement (including the Incentive Plan), and neither Axsys nor
the Company shall have any other legal or equitable set off
rights with respect to such obligations.
(i) Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original
copy of this Agreement and all of which, when taken together,
will be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officer and the Executive has
executed this Agreement as of the day and year first above
written.
/s/Xxxxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx
TELETRAC, INC.
By:/s/Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
SCHEDULE I
Group Life Insurance
--------------------
(i) Xxxx Xxxx
Insurance and Benefit Plan Services
X.X. Xxx 0000
Xxxxx Xxxxxxx, XX 00000
(000) 000-0000
(ii) Insurer: AEtna
Insured: Teletrac
(iii) Control #446790
Original Effective Date: Xxxxx 0, 0000
Xxxx: Renewable yearly
- A copy of the plan and a renewal confirmation from
the agent has been provided to the Buyer.
Group Medical Insurance
-----------------------
(i) Xxxx Xxxx
Insurance and Benefit Plan Services
X.X. Xxx 0000
Xxxxx Xxxxxxx, XX 00000
(000) 000-0000
(ii) Insurer: AEtna
Insured: Teletrac
- A copy of the plan and a renewal confirmation from
the agent has been provided to the Buyer.
Group Long-Term Disability Insurance
------------------------------------
(i) Xxxx Xxxx
Insurance and Benefit Plan Services
X.X. Xxx 0000
Xxxxx Xxxxxxx, XX 00000
(000) 000-0000
(ii) Insurer: Standard Insurance Co.
Insured: Teletrac/All eligible employees
(iii) Group Policy #607825 Term: January 1, 1997 - January
1, 1999
-A copy of this policy has been provided to Buyer.
Dental Plan
-----------
A Dental Plan is available to participating employees
at their sole expense. A copy of the Delta Dental brochure
has been provided to Buyer.
Section 125 Plan
----------------
A copy of the Paychex Specimen Section 125 plan and
adoption agreement has been provided to Buyer. Teletrac has
requested an executed copy of the Plan Adoption Agreement
from the Department of Labor.
