Exhibit 10.7
EMPLOYMENT AGREEMENT BETWEEN
XXXX X. XXXXXXXX
AND
OEI INTERNATIONAL, INC.
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EMPLOYMENT AGREEMENT
THIS AGREEMENT dated as of April 10, 1998, between OEI International,
Inc., a Delaware, corporation (the "COMPANY"), and Xxxx X. Xxxxxxxx, a resident
of Dallas, Texas the ("EXECUTIVE"),
W I T N E S S E T H:
WHEREAS, on the date of this Agreement, the Company, Petrocon
Engineering, Inc. ("PETROCON"), PEI Acquisition, Inc., a Texas corporation and a
wholly owned subsidiary of OEI (the "MERGER SUBSIDIARY"), and the stockholders
of Petrocon, including the Executive, are entering into an Agreement and Plan of
Reorganization (the "ACQUISITION AGREEMENT"), under which Petrocon will merge
with the Merger Subsidiary in a merger (the "MERGER") of which Petrocon will be
the surviving corporation and as a result of which Petrocon will become a wholly
owned subsidiary of OEI; and
WHEREAS the Company is entering into similar merger transactions with
W-Industries, Inc., a Texas corporation, Chemical & Industrial Engineering,
Inc., a Kentucky corporation, Xxxxxx Engineering, Inc., a Texas corporation and
Xxxxxx Xxxxxxxxxx and Xxxxxx, Inc., a New Jersey corporation (collectively,
these corporations and Petrocon are the "Acquired Companies")
WHEREAS, the Executive has been serving as an officer and director of
Petrocon, and has contributed substantially to Petrocon's growth and success;
and
WHEREAS, OEI wishes to insure that the Company and the Acquired
Companies will have the continued benefit of the Executive's knowledge and
experience concerning the affairs of the Company, the Acquired Companies and the
engineering services industry generally, and to keep them from being availed of
by third parties, and has therefore required as a condition to its execution of
the Acquisition Agreement that the Executive enter into this Agreement to become
effective upon consummation of the Merger; and
WHEREAS, the Executive is willing to accept employment by the Company on
the terms and conditions of this Agreement;
NOW, THEREFORE, the Company and the Executive agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 EMPLOYMENT BY THE COMPANY. The Company agrees to employ the
Executive as Executive Vice President-Manager of Mergers and Acquisitions of the
Company for the duration of the Employment Term (as defined in Section 2 below),
to render such services and to perform such duties as are normally associated
with and inherent in the executive capacity in which the Executive will be
serving, as well as such other duties, which are not inconsistent with the
Executive's position as an executive of the Company, as shall from time to time
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reasonably be assigned to him by the Board of Directors of the Company (the
"BOARD OF DIRECTORS") or the officers of the Company senior to the Executive.
1.2 ACCEPTANCE OF EMPLOYMENT BY THE EXECUTIVE. The Executive
accepts such employment for the Employment Term and agrees to render the
services required of him under Section 1.1. During the Employment Term, the
Executive shall devote his full business time, attention and energy to the
business of the Company and the performance of his duties under this Agreement.
The foregoing shall not, however, prohibit the Executive from making and
managing personal investments, or from engaging in civic or charitable
activities, that do not materially impair the performance of his duties under
this Agreement. If appointed or elected, as applicable, the Executive also shall
serve during all or any part of the Employment Term as any other officer and/or
as a director of the Company or any of its subsidiaries or affiliates, without
any additional compensation other than that specified in this Agreement.
1.3 PLACE OF PERFORMANCE. The Executive shall be based in the
Dallas, and nothing in this Agreement shall require the Executive to relocate
his base of employment or principal place of residence from the Dallas.
1.4 TERMINATION OF EXISTING CONTRACTS. The Executive agrees that
all agreements and contracts, whether written or oral, relating to the
employment of the Executive by the Company shall be terminated effective as of
the commencement of the Employment Term. However, nothing in this Section 1.4
shall (i) affect accrued vacation, holiday or sick pay accruals (but only to the
extent such accruals were reflected in the Acquired Company's financial
statements delivered to OEI pursuant to the Acquisition Agreement), (ii) require
the Acquired Company to cease to make available to the Executive, and, subject
to his meeting all applicable eligibility requirements, the Executive shall be
entitled to continue to be covered under, all group health, medical and dental
insurance policies, plans and programs maintained by the Company for its
employees generally, in each case until replacement coverage is provided by the
Company, or (iii) impair or adversely affect any indemnification rights that
Executive may have under statutes empowering corporations in the Acquired
Company's state of incorporation to indemnify their officers and directors, or
under the Acquired Company's bylaws or any written indemnification agreement
between the Executive and the Acquired Company implementing such statutory
indemnification rights, but only with respect to third-party claims or
proceedings that relate to actions taken by the Executive as an officer or
director of the Acquired Company prior to the date hereof and that are disclosed
to OEI in the Disclosure Statement delivered to OEI pursuant to the Acquisition
Agreement or, if asserted or brought for the first time after the date hereof,
would not constitute a breach of the representations or warranties of the
Acquired Company or its stockholders under the Acquisition Agreement.
2. EMPLOYMENT TERM. The term of the Executive's employment under this
Agreement (the "EMPLOYMENT TERM") shall commence on the date of consummation of
the Merger pursuant to the Acquisition Agreement (the "COMMENCEMENT DATE"), and
shall continue through and expire on the third anniversary of the Commencement
Date (the "EXPIRATION DATE"), unless earlier terminated as herein provided.
However, if the Acquisition Agreement is terminated under the terms of its
Article XII, then this Agreement shall also terminate, automatically and without
the requirement of any action on the part of either of its parties.
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3. COMPENSATION AND OTHER BENEFITS.
3.1 ANNUAL SALARY. As compensation for services to be rendered
under this Agreement, the Company shall pay the Executive a salary (the "ANNUAL
SALARY"), subject to such increases as the Board of Directors may, in its
discretion, approve, at a rate of $200,000 per annum. The Executive shall also
be eligible, during the Employment Term, to receive such other compensation,
whether in the form of cash bonuses, incentive compensation, stock options,
stock appreciation rights, restricted stock awards or otherwise (collectively,
the "ADDITIONAL COMPENSATION"), as the Board of Directors (or any committee of
the Board) may, in its discretion, approve. The Annual Salary and the Additional
Compensation shall be payable in accordance with the applicable payroll and/or
other compensation policies and plans of the Company as in effect from time to
time during the Employment Term, less such deductions as shall be required to be
withheld by applicable law and regulations.
3.2 PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Executive shall
be permitted, during the Employment Term, if and to the extent he is and
continues to meet all applicable eligibility requirements, to participate in any
group life, hospitalization or disability insurance plan, health program,
pension plan, similar benefit plan or other "fringe benefits" of the Company,
which may be available to all other similarly situated members of the Company's
management on generally the same terms.
3.3 EXECUTIVE SUPPORT. The Company shall provide to the Executive
office facilities, furniture, and equipment, secretarial and support personnel
and other management level support services as the Executive shall reasonably
require in connection with his performance of his duties under this Agreement.
3.4 REIMBURSEMENT OF BUSINESS EXPENSES. The Executive may incur
reasonable, ordinary and necessary business expenses in the course of his
performance of his duties under this Agreement, including expenses for travel,
food and entertainment. The Company shall reimburse the Executive for all such
business expenses if (i) the expenses are incurred by the Executive in
accordance with the Company's business expense reimbursement policy, if any, as
may be established and modified by the Company from time to time, and (ii) the
Executive provides to the Company a record of and appropriate receipts for (A)
the amount of the expense, (B) the date, place and nature of the expense, (C)
the business reason for the expense and (D) the names, occupations and other
data concerning individuals entertained sufficient to establish their business
relationship to the Company. The Company shall have no obligation to reimburse
the Executive for expenses that are not incurred and substantiated as required
by this Section 3.4.
4. NON-COMPETITION.
4.1 COVENANTS AGAINST COMPETITION. The Executive acknowledges
that (i) the Company, which for purposes of this Section 4 includes OEI and all
of its present and future subsidiaries and affiliates, including subsidiaries
and affiliates that may be formed or incorporated during the Restricted Period
(as defined in Section 4.1.1), is engaged in the business of providing
professional engineering services and designing, engineering, building,
installing, programming, and integrating control and instrumentation systems and
modular processing
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plants (the "Business"); (ii) the Executive is one of a limited number of
persons who has performed a significant role in developing the Business; (iii)
the Business is conducted throughout the United States and internationally; (iv)
his work for the Company has given him, and will continue to give him,
possession of and access to trade secrets of, and confidential information
concerning, the Company; (v) the agreements and covenants contained in this
Section 4 (collectively, the "RESTRICTIVE COVENANTS") are essential to protect
the Business and the goodwill of the Company; and (vi) the Restrictive Covenants
will not impair his ability to do so. Accordingly, the Executive agrees as
follows:
4.1.1 NON-COMPETE. During the Restricted Period, the
Executive shall not (A) engage, anywhere within the Territory (as
hereinafter defined), as an officer, director or in any other managerial
capacity or as an owner, co-owner or other investor or creditor in or
of, whether as an employee, independent contractor, consultant or
advisor, in any business selling or providing any services which are
sold or offered by the Company, within the territory surrounding each
office or fabrication facility (each a "FACILITY") at which the
Executive was employed by the Company within the three-year period
immediately preceding the date of the Executive's termination of
employment (for purposes of this Section 4.1, the territory surrounding
a facility shall be: (1) the city, town or village in which the facility
is located, (2) the county or parish in which the facility is located,
(3) the counties or parishes contiguous to the county or parish in which
the facility is located and (4) the area located within 100 miles of the
facility, all of such locations being herein collectively called the
"TERRITORY"), or (B) call on any person or entity that at the time is,
or at any time within one year prior to the date of termination of the
Executive's employment was, a customer of the Company, for the purpose
of soliciting or selling any product or service which is then sold or
offered within the Territory by the Company if the Executive has
knowledge of that customer relationship; PROVIDED, HOWEVER, that nothing
in this Section 4.1.1 shall prohibit the Executive from owning, directly
or indirectly, solely as an investment, securities of any entity traded
on any national securities exchange or over-the-counter market if the
Executive is not a controlling person of, or a member of a group which
controls, such entity and does not, directly or indirectly, own one
percent or more of any class of securities of such entity. As used in
this Section 4, the term "RESTRICTED PERIOD" means the period beginning
on the Commencement Date and ending:
(i) if during the Employment Term the Executive's
employment terminates as a result of (a) a termination for Cause
under Section 5.2 or (b) the Executive's voluntary resignation,
the fourth anniversary of the Commencement Date;
(ii) if during the Employment Term the Executive's
employment terminates as a result of (a) a termination without
Cause under Section 5.3 or (b) a termination for disability under
Section 5.4, the expiration of the Total Severance Benefit Period
(as defined in Section 5.5); or
(iii) if after the Employment Term the Executive's
employment terminates for any reason, the latest to occur of (a)
the fourth anniversary of the Commencement Date if he is not
eligible for severance benefits under Section 5.5
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or (b) the expiration of the Severance Benefit Period if the
Executive is eligible for severance benefits under Section 5.5.
4.1.2 CONFIDENTIAL INFORMATION; PERSONAL RELATIONSHIPS.
During the Restricted Period and thereafter, the Executive shall keep
secret and retain in strict confidence, and shall not use for the
benefit of himself or others, all confidential matters of the Company,
including, without limitation, "know-how," trade secrets, customer
lists, details of client or consultant contracts, pricing policies,
bidding practices and procedures, operational methods, marketing plans
or strategies, project development techniques or plans, business
acquisition plans, new personnel acquisition plans, methods of
production, manufacture and installation, technical processes, designs
and design projects, inventions and research projects of the Company
learned by the Executive heretofore or during the Restricted Period; nor
shall the Executive exploit for his own benefit, or the benefit of
others, personal relationships with customers, suppliers or agents of
the Company in connection with or adversely affecting the Business
formed previously during the course of his association with the Acquired
Company or formed during the Restricted Period.
4.1.3 PROPERTY OF THE COMPANY. All memoranda, notes,
lists, records and other documents or papers (and all copies thereof),
including such items stored in computer memories, on microfiche or by
any other means, made or compiled by or on behalf of the Executive, or
made available to the Executive relating to the Company, other than
purely personal matters, are and shall be the Company's property and
shall be delivered to the Company promptly upon the termination of the
Executive's employment (whether such termination is for Cause, as
hereinafter defined, or otherwise) or at any other time on request of
the Company.
4.1.4 EMPLOYEES OF THE COMPANY. During the Restricted
Period and thereafter for as long as the Executive shall remain an
employee of or consultant to the Company, the Executive shall not,
directly or indirectly, hire or solicit any employee or consultant
engineer of the Company away from the Company or encourage any such
employee or agent to leave such employment.
4.1.5 CONSULTANTS OF THE COMPANY. During the Restricted
Period and thereafter for as long as the Executive shall remain an
employee of or consultant to the Company, the Executive shall not,
directly or indirectly, hire or solicit any consultant then under
contract with the Company or encourage such consultant to terminate such
relationship.
4.1.6 ACQUISITION CANDIDATES. During the Restricted Period
and thereafter for as long as the Executive shall remain an employee of
or consultant to the Company, the Executive shall not call on any
Acquisition Candidate (as defined below in this Section 4.1.6), with the
knowledge of such Acquisition Candidate's status as such, for the
purpose of acquiring, or arranging the acquisition of, that Acquisition
Candidate by any person or entity other than the Company. In this
Section 4.1.6 "ACQUISITION CANDIDATE" means any person or entity engaged
in any of the businesses of providing professional engineering services,
and (i) which was called on by the Company, in
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connection with the possible acquisition by the Company of that person
or entity, or (ii) with respect to which the Company has made an
acquisition analysis.
4.2 RIGHTS AND REMEDIES UPON BREACH. If the Executive breaches or
threatens to commit a breach of the Restrictive Covenants, the Company shall
have the following rights and remedies, each of which shall be independent of
the others and severally enforceable, and each of which is in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity:
4.2.1 SPECIFIC PERFORMANCE. The right and remedy to have
the Restrictive Covenants specifically enforced by any court of
competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to
the Company and that money damages would not provide an adequate remedy
to the Company.
4.2.2 ACCOUNTING. The right and remedy to require the
Executive to account for and pay over to the Company all compensation,
profits, monies, accruals, increments or other benefits derived or
received by the Executive as the result of any transaction constituting
a breach of the Restrictive Covenants.
4.3 SEVERABILITY OF COVENANTS. The Executive acknowledges and
agrees that the Restrictive Covenants are reasonable and valid in geographical
and temporal scope and in all other respects. If any court determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
4.4 REFORMATION. If any court determines that any Restrictive
Covenant, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, such court shall have the power to reduce
the duration or scope of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
4.5 ENFORCEABILITY IN JURISDICTIONS. The Company and the
Executive intend to and hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope of
the Restrictive Covenants. If the courts of any one or more of such
jurisdictions hold the Restrictive Covenants unenforceable by reason of the
breadth of such scope or otherwise, it is the intention of the Company and the
Executive that such determination not bar or in any way affect the Company's
right to the relief provided above in the courts of any other jurisdiction
within the geographical scope of the Restrictive Covenants, as to breaches of
such covenants in such other respective jurisdictions, such covenants as they
relate to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
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5. TERMINATION.
5.1 TERMINATION UPON DEATH. If the Executive dies during the
Employment Term, this Agreement shall terminate, except that the Executive's
legal representatives, successors, heirs or assigns shall be entitled to receive
the Annual Salary, the Additional Compensation and other accrued benefits, if
any, earned up to the date of the Executive's death; PROVIDED, HOWEVER, if any
Additional Compensation or other benefits are governed by the provisions of any
written employee benefit plan or policy of the Company, any written agreement
contemplated thereunder or any other separate written agreement entered into
between the Executive and the Company, the terms and conditions of such plan,
policy or agreement shall control in the event of any discrepancy or conflict
with the provisions of this Agreement regarding such Additional Compensation or
other benefit upon the death, termination or disability of the Executive.
5.2 TERMINATION FOR CAUSE. At any time during the Employment
Term, the Company shall have the right, exercisable by serving notice effective
in accordance with its terms, to terminate the Executive's employment under this
Agreement and discharge the Executive for Cause. If such right is exercised, the
Company's obligation to the Executive shall be limited to the payment of any
unpaid Annual Salary, Additional Compensation and other benefits, if any,
accrued up to the effective date specified in the Company's notice of
termination (which date shall not be retroactive). As used in this Section 5.2
and elsewhere in this Agreement, term "CAUSE" shall mean that a majority of the
Board of Directors shall have determined, and a majority of the Board of
Directors of OEI shall have concurred, that (i) after notice and a right to
cure, there has been a material breach by the Executive of the terms of this
Agreement, (ii) after receipt of a written warning, the Executive has willfully
and persistently failed or refused to follow the reasonable policies and
directives established by the Board of Directors or executive officers of the
Company senior to the Executive, (iii) the Executive has wrongfully
misappropriated money or other assets or properties of the Company or any
subsidiary or affiliate of the Company, (iv) the Executive has been convicted of
any felony or other serious crime, (v) the Executive's employment performance
has been substantially impaired by chronic absenteeism, alcoholism or drug
addiction, or (vi) the Executive has exhibited gross moral turpitude relevant to
his office or employment with the Company or any subsidiary or affiliate of the
Company.
5.3 TERMINATION WITHOUT CAUSE. At any time during the period
beginning on the first anniversary of the Commencement Date and continuing
through the end of the Employment Term, the Company shall have the right,
exercisable by serving notice effective in accordance with its terms, to
terminate the Executive's employment under this Agreement and discharge the
Executive without Cause. If such right is exercised, the Company's obligation to
the Executive shall be as set forth in Section 5.5 below.
5.4 TERMINATION UPON DISABILITY. If during the Employment Term
the Executive becomes physically or mentally disabled, whether totally or
partially, as evidenced by the written statement of a competent physician
licensed to practice medicine in the United States, so that the Executive is
unable to substantially perform his services hereunder for (i) a period of six
consecutive months, or (ii) for shorter periods aggregating six months during
any period of twelve consecutive months, the Company may at any time after the
last day of the six consecutive months of disability or the day on which the
shorter periods of disability equal an
aggregate of six months within a period of twelve consecutive months, by written
notice to the Executive, terminate the Executive's employment hereunder. If such
right is exercised, the Company's obligation to the Executive shall be as set
forth in Section 5.5 below.
5.5 SEVERANCE BENEFIT. If at any time during or after the
Employment Term, the Executive's employment by the Company is terminated for any
reason other than (i) a termination for Cause under Section 5.2, (ii) his
voluntary resignation, or (iii) his death, then for a period of one year
following the date of termination of the Executive's employment (the "INITIAL
SEVERANCE BENEFIT PERIOD"), the Company shall continue to (a) pay to the
Executive, in payroll period installments in accordance with the Company's
normal payroll policies, the amount of Annual Salary in effect at the date of
termination of his employment and (b) at the Company's expense, continue to
include the Executive and his eligible dependents under the coverage of all
group health, medical and dental insurance policies, plans and programs
maintained by the Company during Initial Severance Benefit Period for the
Company's employees, or management employees, generally.
The Company, at its option, which shall be exercisable by a written
notice sent to the Executive at least 60 days prior to the expiration of the
Initial Severance Benefit Period, may elect to extend the Initial Severance
Benefit Period for a period of an additional one year following the expiration
of the Initial Severance Benefit Period (the "SECOND SEVERANCE BENEFIT PERIOD").
If the Company so elects to extend the Initial Severance Benefit Period, the
Company, during the Second Severance Benefits Period, shall (i) pay to the
Executive, in payroll period installments in accordance with the Company's
normal payroll policies, an amount equal to 50% of the Annual Salary in effect
at the date of termination of his employment and (ii) at the Company's expense,
continue to include the Executive and his eligible dependants under the coverage
of all group health, medical and dental insurance policies, plans and programs
maintained by the Company during the Second Severance Benefit Period for the
Company's employees, or management employees, generally.
For purposes of Section 4.1.1 of this Agreement, the term "TOTAL
SEVERANCE BENEFIT PERIOD" means the total period (including the Initial
Severance Benefit Period and, if applicable, the Second Severance Benefit
Period) during which the Company is obligated to pay and provide, and performs
its obligations to pay and provide, severance benefits to the Executive under
this Section 5.5
6. INSURANCE. The Company may, from time to time, apply for and take
out, in its own name and at its own expense, naming itself or others as the
designated beneficiary (which it may change from time to time), policies for
health, accident, disability or other insurance upon the Executive or his life,
in any amount or amounts that it may deem necessary or appropriate to protect
its interest. The Executive agrees to aid the Company in procuring such
insurance by submitting to reasonable medical examinations and by filling out,
executing and delivering such applications and other instruments in writing as
may reasonably be required by an insurance company or companies to which any
application or applications for insurance may be made by or for the Company.
7. OTHER PROVISIONS.
7.1 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, five days after the date of deposit in the United
States mail, as follows:
if TO THE COMPANY, to:
OEI International, Inc.
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: X. X. Xxxxxx, Chief Executive Officer
with a COPY TO:
Xxxxxx & Xxxxxx, L.L.P.
Attn: Xxx Xxxxxxxx
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
if TO THE EXECUTIVE, to:
Xxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopy: None
Either party may change its address for notice hereunder by notice to
the other party.
7.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties with respect to its subject
matter and supersedes all prior agreements, written or oral, with respect
thereto; PROVIDED, HOWEVER, that nothing herein shall in any way limit the
obligation, rights or liabilities of the parties under any written stock option
agreement separately entered into by the parties.
7.3 WAIVERS AND AMENDMENTS. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder, nor any single or partial exercise
of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
7.4 GOVERNING LAW; VENUE. This Agreement, except as set forth in
Section 4.5 hereof, shall be governed by, and construed in accordance with, the
laws of the State of Texas without reference to principles governing choice or
conflicts of law.
7.5 ASSIGNMENT. This Agreement, and any rights and obligations
hereunder, may not be assigned by any party hereto without the prior written
consent of the other party, except that the Company may assign this Agreement to
any of its subsidiaries or affiliates without the Executive's consent provided
such assignment does not diminish any of the Executive's benefits, rights or
obligations hereunder.
7.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.7 HEADINGS. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
OEI INTERNATIONAL, INC.
By: /s/ XXXX X. XXXXX
Xxxx X. Xxxxx
President
/s/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
