AMENDMENT NO. 2 TO EMPLOYMENT AND NON-INTERFERENCE AGREEMENT
This Amendment, dated as of March 18, 1997, by and
between Xxxx X. Xxxxx ("Executive") and PCC Flow
Technologies, Inc., a Delaware corporation (the "Company");
W I T N E S S E T H:
WHEREAS, NEWFLO Corporation was acquired on July 31,
1996 by Precision Castparts Corp. (PCC) and, as of that
date, PCC assumed all liabilities and obligations with
respect to Executive's Employment and Non-interference
Agreement and adopted resolutions to change the legal name
of NEWFLO Corporation to PCC Flow Technologies, Inc.;
WHEREAS, PCC has notified Executive that it intends to
close the Company's business offices located at 000 Xxxx
Xxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and to establish
a new business office in the Houston, Texas, or surrounding
area;
WHEREAS, the Company wishes to obtain the future
services of the Executive for the Company, and wishes for
the Executive to relocate to the Houston, Texas, or
surrounding area;
WHEREAS, the Company and Executive wish to amend the
Executive's Employment and Non-Interference Agreement, which
upon Relocation of the Executive (as defined in Section 9),
will become effective as Amendment No. 2 to the Executive's
Employment and Non-Interference Agreement originally dated
May 2, 1994;
WHEREAS, the Executive is willing, upon the terms and
conditions herein set forth, to continue to provide services
under the Agreement and Amendments No. 1 and 2 to the
Agreement;
NOW, THEREFORE, in consideration of the mutual promises
and covenants contained in the Agreement, the Company and
the Executive, intending to be legally bound, hereby agree
to amend Sections 3(a), 5, 9, 10, 17, and 18 of the
Agreement to read as follows:
Section 3(a) is amended in its entirety to read as
follows:
3. Term of Employment; Termination
(a) The "Term of Employment", as amended under this
Amendment No. 2, shall commence on the date of Executive's
Relocation and shall continue for a term of thirty six
months; provided, that, (i) such term will be continued for
the twelve month period following such thirty six month
period, and for each twelve month period thereafter, unless,
at least 60 days prior to the scheduled expiration date,
either the Executive or the Company notifies the other of
its decision not to continue such term, and (ii) should the
Executive's employment by the Company be earlier terminated
pursuant to Section 3(b), the Term of Employment shall end
on the date of such earlier termination.
Section 5 is amended in its entirety to read as
follows:
5. Reimbursement of Expenses
During the Term of Employment, the Company shall
reimburse Executive for documented travel, entertainment and
other expenses reasonably incurred by Executive in
connection with the performance of his duties hereunder and
in accordance with the rules, customs and usages of the
Company from time to time in effect. The Company also shall
reimburse the Executive for his Relocation from Austin,
Texas to the Houston, Texas, or surrounding area, based on
the PCC Flow Technologies, Inc. Relocation Guidelines, a
copy of which is attached to this Amendment No. 2, labeled
as Exhibit 1.
Section 9 is amended by only adding and changing the
follows definitions:
9. Definitions
"Companies" means PCC Flow Technologies, Inc. and its
successors or any of its direct or indirect subsidiaries.
"Company" has been changed from NEWFLO Corporation to
PCC Flow Technologies, Inc., and is defined in the
introduction to this Amendment No. 2.
"Relocation" means the transfer of Executive,
Executive's family and household goods to Houston, Texas, or
the surrounding area, concluded by Executive's purchase of a
residence in that area.
Section 10. Notice is amended in its entirety to read
as follows:
10. Notice
Any notice, request, demand or other communication
required or permitted to be given under this Agreement shall
be given in writing and if delivered personally, or sent by
certified or registered mail, return receipt requested, as
follows (or to such other addresses or address as shall be
set forth in a notice give in the same manner):
If to Executive: Xxxx X. Xxxxx
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
(new address to be provided upon
Relocation to Houston, Texas area)
If to Company: PCC Flow Technologies, Inc.
000 Xxxxxx Xx.
Xxxxxxxxxx, Xxxxx 00000
Attn: President
With a copy to: Xx. Xxxx X. Xxxxx
Stoel Rives LLP
000 XX Xxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000-0000
Any notices by personal delivery shall be deemed to be given
on the date personally delivered, and notices by facsimile
shall be effective when sent and confirmed by the sending by
facsimile machine.
Section 17. Litigation is amended in its entirety to
read as follows:
17. Litigation
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS, EXCEPT THAT NO DOCTRINE OF CHOICE OF LAW SHALL BE
USED TO APPLY ANY LAW OTHER THAN THAT OF TEXAS, AND NO
DEFENSE, COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR ALLOWED
BY THE LAWS OF ANY OTHER STATE OR JURISDICTION, OR ARISING
OUT OF THE ENACTMENT, MODIFICATION OR REPEAL OF ANY LAW,
REGULATION, ORDINANCE OR DECREE OF ANY FOREIGN JURISDICTION,
BE INTERPOSED IN ANY ACTION HEREON. SUBJECT TO SECTION 18,
EXECUTIVE AND THE COMPANY AGREE THAT ANY ACTION OR
PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT MAY
BE COMMENCED IN THE STATE COURTS, OR IN THE UNITED STATES
DISTRICT COURTS IN HOUSTON, TEXAS. EXECUTIVE AND THE
COMPANY CONSENT TO SUCH JURISDICTION, AGREE THAT VENUE WILL
BE PROPER IN SUCH COURTS AND WAIVE ANY OBJECTIONS BASED UPON
FORUM NON CONVENIENS. THE CHOICE OF FORUM SET FORTH IN THIS
SECTION 17 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT
OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING OF ANY
ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER
JURISDICTION.
Section 18. Arbitration is amended in its entirety to
read as follows:
18. Arbitration
EXCEPT AS SPECIFICALLY PROVIDED FOR IN THIS SECTION 18,
THE EXECUTIVE AND THE COMPANY AGREE THAT ANY DISPUTE BETWEEN
OR AMONG THE PARTIES TO THIS AGREEMENT RELATING TO OR IN
RESPECT OF THIS AGREEMENT, ITS NEGOTIATION, EXECUTION,
PERFORMANCE, SUBJECT MATTER, OR ANY COURSE OF CONDUCT OR
DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT,
SHALL BE SUBMITTED TO, AND RESOLVED EXCLUSIVELY PURSUANT TO
ARBITRATION IN ACCORDANCE WITH THE EMPLOYMENT DISPUTE
RESOLUTION RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
SUCH ARBITRATION SHALL TAKE PLACE IN HOUSTON, TEXAS AND
SHALL BE SUBJECT TO THE SUBSTANTIVE LAW OF THE STATE OF
TEXAS. DECISIONS PURSUANT TO SUCH ARBITRATION SHALL BE
FINAL, CONCLUSIVE AND BINDING ON THE PARTIES. UPON THE
CONCLUSION OF ARBITRATION, EXECUTIVE OR THE COMPANY MAY
APPLY TO ANY COURT OF THE TYPE DESCRIBED IN SECTION 17 TO
ENFORCE THE DECISION PURSUANT TO SUCH ARBITRATION. THE
COMPANY SHALL HAVE NO OBLIGATION TO ARBITRATE DISPUTES
ARISING UNDER SECTIONS 7 AND 8 HEREOF, AND MAY ENFORCE ANY
OF ITS RIGHTS AND REMEDIES WITH RESPECT THERETO IN ANY COURT
OF COMPETENT JURISDICTION.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above
written.
EXECUTIVE:
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
PCC Flow Technologies, Inc.
By: /s/ Xxxxx X. Xxxxxx
Its: President
