Exhibit 10.19
-------------
PARAGON TECHNOLOGIES, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
THIS EXECUTIVE EMPLOYMENT AGREEMENT is made as of the 1st day
of October, 2001 by and between Xxxxxx X. Xxxxxxxx, a resident of Spring Lake,
Michigan (the "Employee"), and Paragon Technologies, Inc., a corporation
organized and existing under the laws of the Commonwealth of Pennsylvania (the
"Company").
WHEREAS, the Company is engaged in the business of designing,
selling, installing and servicing integrated automated materials handling
technologies and systems for industrial, warehousing and distribution customers
(the "Business").
WHEREAS, the Employee is an employee of the Company pursuant
to the terms of an Executive Employment Agreement dated August 7, 1999 which
expires by its terms on October 1, 2001.
WHEREAS, the Company desires to employ the Employee and the
Employee desires to be employed by the Company, upon the terms and conditions
hereinafter set forth, which among other things, provides for the Employee to be
eligible to receive materially enhanced severance benefits in the event of the
termination of the Employee's employment with the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the parties,
subject to the terms and conditions set forth herein, agree as follows:
1. Employment and Term. The Company hereby employs the Employee and
-------------------
the Employee hereby accepts employment with the Company, for a period commencing
on October 1, 2001 (the "Commencement Date") and continuing until the earlier of
the second anniversary of the Commencement Date (the "Expiration Date") or the
termination of this Agreement in accordance with the provisions of Section 7
hereof (the "Term"), to hold the office of Vice President - Sales of the Company
during the Term from and after the Commencement Date (such office, referred to
herein as the "Position").
2. Duties. During the Term, the Employee shall serve the Company
------
faithfully and to the best of his ability and shall devote his full time,
attention, skill and efforts to the performance of the duties required by or
appropriate for the Position. Subject to the oversight of the Chief Operating
Officer, the Employee shall have such duties and responsibilities as may be
assigned to him from time to time by the Chief Operating Officer. The Employee
shall report to the Chief Operating Officer. The Employee shall perform his
duties and responsibilities hereunder at the Company's facility located in
Spring Lake, Michigan or at such other location as may be established from
time to time by the Chief Operating Officer.
3. Compensation. The Company shall pay the Employee, and the Employee
------------
hereby agrees to accept, as compensation for all services to be rendered to the
Company and in consideration for the Employee's intellectual property covenants
and assignments and covenant not to compete, as provided in Sections 5 and 6
hereof, the compensation set forth in this Section 3 and additional benefits
provided herein. The Employee hereby acknowledges the receipt and sufficiency
of the consideration set forth herein.
3.1 Salary. Beginning on the Commencement Date, the Company
------
shall pay the Employee a base salary at the annual rate of One Hundred Eighteen
Thousand Dollars ($118,000) (as the same may hereafter be adjusted, the
"Salary") during the term of this Agreement. The Salary shall be inclusive of
all
applicable income, social security and other taxes and charges that are
required by law to be withheld by the Company (collectively, "Taxes") and shall
be paid and withheld in accordance with the Company's normal payroll practices
for its executive employees from time to time in effect.
3.2 Bonus. The Employee shall be eligible to participate in the
-----
Company's Officer Incentive Plan in effect for a particular fiscal year which is
based on the achievement of volume and earnings targets as defined for such
fiscal year.
3.3 Equity Participation.
--------------------
(a) Incentive Stock Options. The Employee may be granted
-----------------------
"Incentive Stock Options" (as such term is defined in the Company's 1997 Equity
Compensation Plan, as amended from time to time (the "Equity Compensation
Plan")) to purchase shares of Common Stock under and subject to the terms of the
Equity Compensation Plan, which shall vest at a rate of twenty five percent
(25%) per year on each of the first four (4) anniversaries of the Grant Date;
provided that as an express condition of receipt of such Incentive Stock
Options, the Employee shall enter into and agree to be bound by the terms of
the standard "Grant Instrument" (as such term is defined in the Equity
Compensation Plan) applicable to the issuance of Incentive Stock Options under
the Equity Compensation Plan.
(b) Vesting. In the event of a "Change of Control" (as such
-------
term is defined in the Equity Compensation Plan), all rights to acquire Common
Stock pursuant to the Grant of Incentive Stock Options described in Section
3.3(a) hereof shall fully accelerate and be immediately vested and exercisable;
provided that, in the event such acceleration and vesting would make the Change
of Control ineligible for pooling of interests accounting treatment, in lieu of
such acceleration and vesting, the Company shall make a payment to the Employee
in an amount equal to the benefit that would have inured to the Employee if such
acceleration and vesting had occurred so long as such payment would not make the
Change of Control ineligible for pooling of interests accounting treatment or
otherwise impose adverse tax consequences on the Company. In no event shall any
right to acquire Common Stock pursuant to the Grant Incentive Stock Options
described in Section 3.3(a) hereof vest upon or following the termination of the
Employee's employment with the Company, except as provided in the Equity
Compensation Plan (as amended from time to time, including, without limitation,
with respect to the vesting of restricted stock or incentive stock options in
event of the death or disability of an employee of the Company) or the
applicable Grant Instrument.
3.4 Annual Compensation Review. The Chief Operating Officer shall
--------------------------
review the Employee's compensation annually which review shall include, without
limitation, an evaluation of the Employee's contribution to the Company's annual
financial performance, including pre-tax earnings, effective management of the
Company's sales operations, and backlog adequacy.
3.5 Fringe Benefits. During the Term, the Employee shall be
---------------
entitled to participate in standard management benefits programs of the Company,
including, without limitation, the Company's standard program with respect to
automobile benefits, as amended from time to time (the "Benefits"). Employee
shall be entitled to four (4) weeks paid vacation per year.
3.6 Reimbursement of Expenses. During the course of employment,
-------------------------
the Employee shall be reimbursed for items of travel, food and lodging and
miscellaneous expenses reasonably incurred by him on behalf of the Company,
provided that such expenses are incurred, documented and submitted to the
Company, all in accordance with the reimbursement policies of the Company as in
effect from time to time.
-2-
4. Confidentiality. The Employee recognizes and acknowledges that the
---------------
Proprietary Information (as hereinafter defined) is a valuable, special and
unique asset of the Company. As a result, both during the Term and thereafter,
the Employee shall not, without the prior written consent of the Company, for
any reason either directly or indirectly divulge to any third-party or use for
his own benefit, or for any purpose other than the exclusive benefit of the
Company, any confidential, proprietary, business and technical information or
trade secrets of the Company or of any subsidiary or affiliate of the Company
(the "Proprietary Information") revealed, obtained or developed in the course of
his employment with the Company. Proprietary Information shall include, but
shall not be limited to the intangible personal property described in Section
5(b) hereof and, in addition, technical information, including research design,
results, techniques and processes; apparatus and equipment design; and computer
software; technical management information, including project proposals,
research plans, status reports, performance objectives and criteria, and
analyses of areas for business development; and business information, including
project, financial, accounting and personnel information, business strategies,
plans and forecasts, customer lists, customer information and sales and
marketing plans, efforts, information and data. In addition, "Proprietary
Information" shall include all information and materials received by the Company
or the Employee from a third party subject to an obligation of confidentiality
and/or non-disclosure. Nothing contained herein shall restrict the Employee's
ability to make such disclosures during the course of the employment as may be
necessary or appropriate to the effective and efficient discharge of the duties
required by or appropriate for the Position or as such disclosures may be
required by law or by a governmental body or court. Furthermore, nothing
contained herein shall restrict the Employee from divulging or using for his own
benefit or for any other purpose any Proprietary Information that is readily
available to the general public so long as such information did not become
available to the general public as a direct or indirect result of the Employee's
breach of this Section 4. Failure by the Company to xxxx any of the Proprietary
Information as confidential or proprietary shall not affect its status as
Proprietary Information under the terms of this Agreement.
5. Property.
--------
(a) All right, title and interest in and to Proprietary
Information shall be and remain the sole and exclusive property of the Company.
During the Term, the Employee shall not remove from the Company's offices or
premises any documents, records, notebooks, files, correspondence, reports,
memoranda or similar materials of or containing Proprietary Information, or
other materials or property of any kind belonging to the Company, unless
necessary or appropriate in accordance with the duties and responsibilities
required by or appropriate for the Position and, in the event that such
materials or property are removed, all of the foregoing shall be returned to
their proper files or places of safekeeping as promptly as possible after the
removal shall serve its specific purpose. The Employee shall not make, retain,
remove and/or distribute any copies of any of the foregoing for any reason
whatsoever, except as may be necessary in the discharge of the assigned duties
and shall not divulge to any third person the nature of and/or contents of any
of the foregoing or of any other oral or written information to which he may
have access or with which for any reason he may become familiar, except as
disclosure shall be necessary in the performance of the duties; and upon the
termination of his employment with the Company, he shall return to the Company
all originals and copies of the foregoing then in his possession or under his
control, whether prepared by the Employee or by others.
(b) (i) The Employee acknowledges that all right, title and
interest in and to any and all writings, documents, inventions,
discoveries, ideas, developments, information, computer programs or instructions
(whether in source code, object code, or any other form), algorithms, formulae,
plans, memoranda, tests, research, designs, innovations, systems, analyses,
specifications, models, data, diagrams, flow charts, and/or techniques (whether
patentable or non-patentable or whether reduced to written or electronic form or
otherwise) relating to the Business or any other business in which the Company
or any of the Company's subsidiaries or affiliates is engaged during the Term
that the Employee creates, makes, conceives,
-3-
discovers or develops, either solely or jointly with any other person, at any
time during the Term, during working hours or using any property or facility of
the Company, and whether upon the request or suggestion of the Company or
otherwise, (collectively, "Intellectual Work Product") shall be the sole and
exclusive property of the Company. The Employee shall promptly disclose to the
Company all Intellectual Work Product, and the Employee shall have no claim for
additional compensation for the Intellectual Work Product.
(ii) The Employee acknowledges that all the
Intellectual Work Product that is copyrightable shall be considered a work
made for hire under United States Copyright Law. To the extent that any
copyrightable Intellectual Work Product may not be considered a work made for
hire under the applicable provisions of the United States Copyright Law, or to
the extent that, notwithstanding the foregoing provisions, the Employee may
retain an interest in any Intellectual Work Product, the Employee hereby
irrevocably assigns and transfers to the Company any and all right, title, or
interest that the Employee may have in the Intellectual Work Product under
copyright, patent, trade secret and trademark law, in perpetuity or for the
longest period otherwise permitted by law, without the necessity of further
consideration. The Company shall be entitled to obtain and hold in its own name
all copyrights, patents, trade secrets, and trademarks with respect thereto.
(iii) The Employee shall reveal promptly all
information relating to any Intellectual Work Product to the Board of
Directors of the Company, cooperate with the Company and execute such documents
as may be necessary or appropriate (A) in the event that the Company desires to
seek copyright, patent or trademark protection, or other analogous protection,
thereafter relating to the Intellectual Work Product, and when such protection
is obtained, renew and restore the same, or (B) to defend any opposition
proceedings in respect of obtaining and maintaining such copyright, patent or
trademark protection, or other analogous protection.
6. Covenant not to Compete. The Employee shall not, during the Term
-----------------------
(except in the performance of the Employee's duties hereunder) and for a
period immediately following the termination of the Employee's employment
hereunder of either (x) in the case of a termination by the Company without
cause, as described in Section 7.1(a) hereof, the length of time during which
the Employee is entitled to receive severance pay pursuant to Section 7.1(c)
hereof or (y) in all other cases, two (2) years, do any of the following
directly or indirectly without the prior written consent of the Board of
Directors in its sole discretion:
(a) engage or participate, directly or indirectly, in any
business activity substantially competitive with the Business;
(b) become interested (as owner, stockholder, lender,
partner, co-venturer, director, officer, employee, agent, consultant or
otherwise) in any person, firm, corporation, association or other entity engaged
in any business that is competitive with the Business, or become interested in
(as owner, stockholder, lender, partner, co-venturer, director, officer,
employee, agent, consultant or otherwise) any portion of the business of any
person, firm, corporation, association or other entity where such portion of
such business is competitive with the Business or any other business in which
the Company or any of the Company's subsidiaries or affiliates is engaged during
the Term (notwithstanding the foregoing, the Employee may hold not more than
five percent (5%) of the outstanding securities of any class of any
publicly-traded securities of a company that is engaged in the Business);
(c) engage, either directly or indirectly, in any business
activity substantially competitive with the Business with any (A) customer with
whom the Company shall have dealt at any time during the one (1) year period
immediately preceding the termination of the Employee's employment hereunder, or
(B) corporate partner, collaborator, independent contractor or supplier with
whom the Company
-4-
shall have dealt at any time during the one (1) year period immediately
preceding the termination of the Employee's employment hereunder;
(d) influence or attempt to influence any then current or
prospective supplier, customer, corporate partner, collaborator, or independent
contractor of the Company to terminate or modify any written or oral agreement
or course of dealing with the Company; or
(e) initiate any contract with any person with the purpose
of influencing or attempting to influence any person either (i) to terminate or
modify an employment, consulting, agency, distributorship or other arrangement
with the Company, or (ii) to employ or retain, or arrange to have any other
person or entity employ or retain, any person who has been employed or retained
by the Company as an employee, consultant, agent or distributor of the Company
at any time during the one (1) year period immediately preceding the termination
of the Employee's employment hereunder.
The Employee acknowledges that he has carefully read and
considered the provisions of this Section 6. The Employee acknowledges that the
foregoing restrictions may limit his ability to earn a livelihood in a business
similar to the Business, but he nevertheless believes that he has received and
will receive sufficient consideration and other benefits in connection with the
payment by the Company of the compensation set forth in Sections 3 and 7 hereof
to justify such restrictions, which restrictions the Employee does not believe
would prevent him from earning a living in businesses that are not competitive
with the Business and without otherwise violating the restrictions set forth
herein.
7. Termination. Upon termination of the Employee's employment
-----------
hereunder, the Employee shall be entitled only to such compensation and benefits
as described in this Section 7.
7.1 Termination by the Company Without Cause.
----------------------------------------
(a) Notwithstanding anything to the contrary set forth
herein, the Company shall have the right to terminate the Employee's employment
hereunder at any time, for any reason or for no reason, without cause, effective
upon the date designated by the Company upon written notice to the Employee.
(b) In the event of a termination of the Employee's
employment hereunder pursuant to Section 7.1(a) hereof, the Employee shall be
entitled to receive all accrued but unpaid (as of the effective date of such
termination) Salary and the severance payments in the manner set forth in
Section 7.1(c) hereof; provided that the Employee has complied with all of his
obligations under this Agreement and continues to comply with all of his
surviving obligations hereunder listed in Section 9 hereof. Except as
specifically set forth in this Section 7.1, all Salary and Benefits shall cease
at the time of such termination, except as required under applicable law and the
Company shall have no further liability or obligation hereunder by reason of or
subsequent to such termination.
(c) In the event of the termination of the Employee's
employment under Section 7.1(a) hereof prior to the Expiration Date, the
Employee shall be entitled, as severance pay, to continue to receive his Salary
and the annual average of the bonus paid to the Employee for the two years
preceding the year in which the termination becomes effective for a period equal
to the greater of (i) one year or (ii) the number of years between the effective
date of such termination and the Expiration Date (pro rated for any partial
year).
-5-
7.2 Termination for Cause.
---------------------
(a) The Company shall have the right to terminate the
Employee's employment hereunder at any time for "cause" upon written notice to
the Employee. For purposes of this Agreement, "cause" shall mean:
(i) any material breach by the Employee of any material
obligations under this Agreement, which breach has not been cured within thirty
(30) days of written notice by the Company to the Employee;
(ii) conduct of the Employee involving disloyalty to
the Company or willful misconduct with respect to the Company, including without
limitation fraud, embezzlement, theft or proven dishonesty in the course of the
employment, which conduct or willful misconduct, if capable of cure, has not
been cured within thirty (30) days of written notice by the Company to the
Employee; or
(iii)conviction of a felony or other criminal act,
provided that in the case of such other criminal act the Employee is sentenced
to a term of more than one (1) year in prison.
(b) In the event of a termination of the Employee's
employment hereunder pursuant to Section 7.2(a) hereof, the Employee shall be
entitled to receive all accrued but unpaid (as of the effective date of such
termination) Salary and such other benefits as are normally provided by the
Company upon the death of an employee; provided that the Employee has complied
with all of his obligations under this Agreement. All Salary and Benefits shall
cease at the time of such termination, subject to the requirements of applicable
law, and, except as specifically set forth in this Section 7.2, the Company
shall have no further liability or obligation hereunder by reason of or
subsequent to such termination.
7.3 Termination by the Employee.
---------------------------
(a) Voluntary Termination. In the event of a voluntary
---------------------
termination by the Employee of his employment hereunder, the Employee will be
entitled to receive all accrued and unpaid (as of the effective date of such
termination) Salary; provided that the Employee has complied with all of his
obligations under this Agreement. Except as specifically set forth in this
Section 7.3(a) or as provided by applicable law, the Company shall have no
further liability or obligation to the Employee for compensation or benefits
hereunder by reason of or subsequent to such termination.
(b) Termination by Death. In the event that the Employee
--------------------
dies during the Term, the Employee's employment hereunder shall be terminated
thereby and the Company shall pay to the Employee's executors, legal
representatives or administrators an amount equal to all accrued and unpaid (as
of the date of death) Salary and any such other benefits as are normally
provided by the Company upon the death of an employee; provided that the
Employee has complied with all of his obligations under this Agreement. Except
as specifically set forth in this Section 7.3(b) or as provided by applicable
law, the Company shall have no further liability or obligation hereunder to the
Employee's executors, legal representatives, administrators, heirs or assigns or
any other person claiming under or through him by reason of or subsequent to the
Employee's death.
7.4 Termination upon a Change of Control.
------------------------------------
(a) During the one (1) year period following a Change
of Control, in the event of the termination of the Employee's employment
hereunder pursuant to a Constructive Termination (as
-6-
defined in Section 7.4(b) hereof), in lieu of the severance pay described in
Section 7.1(c) hereof, the Employee shall be entitled, as severance pay, to (A)
continue to receive his Salary for a period of eighteen (18) months, subject to
all applicable Taxes, calculated on the basis of the Salary in effect on the
date of termination and paid in the same manner as Salary was then paid
hereunder and (B) receive a lump sum payment in an amount equal to one and
one-half times the average of the Bonus paid to the Employee for the two (2)
fiscal years preceding the year in which the termination becomes effective,
subject to all applicable Taxes, which lump sum amount shall be payable to the
Employee within thirty (30) days following the date of termination.
(b) For purposes of this Section 7.4, "Constructive
Termination" shall mean the termination of the Employee's employment hereunder
by the Employee within one year of a Change of Control as a result of any of the
following: (i) the Employee is demoted; (ii) the Employee's duties hereunder are
materially altered in a manner unacceptable to the Employee at the sole
discretion of the Employee; or (iii) the Salary is reduced.
8. Representations, Warranties and Covenants of the Employee.
---------------------------------------------------------
(a) The Employee represents and warrants to the Company
that:
(i) to the best of the Employee's knowledge, there are
no restrictions, agreements or understandings whatsoever to which the Employee
is a party which would prevent or make unlawful the Employee's execution of this
Agreement or the Employee's employment hereunder, or which is or would be
inconsistent or in conflict with this Agreement or the Employee's employment
hereunder, or would prevent, limit or impair in any way the performance by the
Employee of the obligations hereunder; and
(ii) the Employee has disclosed to the Company all
restraints, confidentiality commitments or other employment restrictions that he
has with any other employer, person or entity.
(b) The Employee covenants that in connection with his
provision of services to the Company, he shall not breach any obligation (legal,
statutory, contractual or otherwise) to any former employer or other person,
including, but not limited to obligations relating to confidentiality and
proprietary rights.
(c) The Employee acknowledges and reaffirms his continuing
obligations including, but not limited to, those contained in Sections 4, 5, and
6 herein.
9. Survival of Provisions. The provisions of this Agreement
------------------------
set forth in Sections 4, 5, 6, 7, 8, 18 and 19 hereof shall survive the
termination of the Employee's employment hereunder.
10. Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the Company and the Employee and their respective
successors, executors, administrators, heirs and/or assigns; provided that the
Employee shall not make any assignment of this Agreement or any interest herein,
by operation of law or otherwise, without the prior written consent of the
Company.
11. Notice. Any notice hereunder by either party shall be given by
------
personal delivery or by sending such notice by certified mail, return-receipt
requested, or telecopied, addressed or telecopied, as the case may be, to the
other party at its address set forth below or at such other address designated
by notice in the manner provided in this section. Such notice shall be deemed to
have been received upon the date of actual delivery if personally delivered or,
in the case of mailing, two (2) days after deposit with the U.S. mail, or, in
the case of facsimile transmission, when confirmed by the facsimile machine
report.
-7-
(a) if to the Company, to:
Paragon Technologies, Inc.
000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: President and CEO
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esquire
Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopier: (000) 000-0000
(b) if to the Employee, to:
Xxxxxx Xxxxxxxx
00000 Xxxxxx Xx. Xx.
Xxxxxx Xxxx, XX
Telecopier: 000-000-0000
with a copy to:
Xx. Xxxxxxx X. XxXxxx
XxXxxx Xxxxxxx, L.L.P.
Xxxxx Xxxxx, XX 00000
Telecopier: 000-000-0000
12. Entire Agreement; Amendments. This Agreement contains the entire
----------------------------
agreement and understanding of the parties hereto relating to the subject matter
hereof, and merges and supersedes all prior and contemporaneous discussions,
agreements, and understandings of every nature between the parties hereto
relating to the employment of the Employee with the Company. This Agreement may
not be changed or modified, except by an agreement in writing signed by each of
the parties hereto.
13. Waiver. The waiver of the breach of any term or provision of this
------
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
14. Governing Law. This Agreement shall be construed and enforced in
-------------
accordance with the laws of the State of Michigan, without regard to the
principles of conflicts of laws of any jurisdiction.
15. Invalidity. If any provision of this Agreement shall be determined
----------
to be void, invalid, unenforceable or illegal for any reason, the validity and
enforceability of all of the remaining provisions hereof
-8-
shall not be affected thereby. If any particular provision of this Agreement
shall be adjudicated to be invalid or unenforceable, such provision shall be
deemed amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such amendment to apply only to the operation of such provision
in the particular jurisdiction in which such adjudication is made; provided
that, if any provision contained in this Agreement shall be adjudicated to be
invalid or unenforceable because such provision is held to be excessively broad
as to duration, geographic scope, activity or subject, such provision shall be
deemed amended by limiting and reducing it so as to be valid and enforceable to
the maximum extent compatible with the applicable laws of such jurisdiction,
such amendment only to apply with respect to the operation of such provision in
the applicable jurisdiction in which the adjudication is made.
16. Section Headings. The section headings in this Agreement are
-----------------
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
17. Number of Days. In computing the number of days for purposes of
--------------
this Agreement, all days shall be counted, including Saturdays, Sundays and
legal holidays; provided that, if the final day of any time period falls on a
Saturday, Sunday or day which is a legal holiday in the Commonwealth of
Pennsylvania, then such final day shall be deemed to be the next day which is
not a Saturday, Sunday or legal holiday.
18. Specific Enforcement; Consent to Suit. The Employee acknowledges
-------------------------------------
that the restrictions contained in Sections 4, 5 and 6 hereof are reasonable and
necessary to protect the legitimate interests of the Company and its affiliates
and that the Company would not have entered into this Agreement in the absence
of such restrictions. The Employee also acknowledges that any breach by him of
Sections 4, 5 or 6 hereof will cause continuing and irreparable injury to the
Company for which monetary damages would not be an adequate remedy. The Employee
shall not, in any action or proceeding to enforce any of the provisions of
Section 4, 5 or 6 hereof, assert the claim or defense that an adequate remedy at
law exists. In the event of such breach by the Employee, the Company shall have
the right to enforce the provisions of Section 4, 5 or 6 hereof by seeking
injunctive or other relief in any court, and this Agreement shall not in any way
limit remedies of law or in equity otherwise available to the Company. Any legal
proceeding to enforce the provisions of Section 4, 5 or 6 hereof shall be
instituted in any court having jurisdiction in Ottawa County, Michigan, or if
such court does not have jurisdiction or will not accept jurisdiction, in any
state or federal court of general jurisdiction in the State of Michigan, and,
for such purpose, the Employee hereby consents to the personal and exclusive
jurisdiction of such court and hereby waives any objection that the Employee may
have to the laying of venue of any such proceeding and any claim or defense of
inconvenient forum. Notwithstanding the foregoing to the contrary, the Company
shall have the right to institute legal proceedings to enforce the provisions of
Section 4, 5 or 6 hereof in any court with jurisdiction over the Employee. In
any legal proceeding seeking to enforce or interpret the terms of Section 4, 5
or 6 hereof, each party shall be responsible for its own costs, expenses and
disbursements, including attorneys' fees.
19. Arbitration. Subject to the last sentence of this Section 19, if
-----------
any dispute arises over the terms of this Agreement between the parties to this
Agreement, either the Employee or the Company shall submit the dispute to
binding arbitration within thirty (30) days after such dispute arises, to be
governed by the evidentiary and procedural rules of the American Arbitration
Association (Commercial Arbitration). The Employee and the Company shall
mutually select one (1) arbitrator within ten (10) days after a dispute is
submitted to arbitration. In the event that the parties do not agree on the
identity of the arbitrator within such period, the arbitrator shall be selected
by the American Arbitration Association. The arbitrator shall hold a hearing on
the dispute in Ottawa County, Michigan within thirty (30) days after having been
selected and shall issue a written opinion within fifteen (15) days after the
hearing. The arbitrator shall also decide on the allocation of the costs of the
arbitration to the respective parties, but the Employee and the Company shall
each be responsible for paying the fees of their own legal counsel, if legal
counsel is obtained. Either the Employee or the Company, or both parties, may
file the decision of the arbitrator as a final, binding and unappealable
-9-
judgment in a court of appropriate jurisdiction. Notwithstanding the foregoing
provisions of this Section 19 to the contrary, matters in which an equitable
remedy or injunctive relief is sought by a party, including but not limited to
the remedies referred to in Section 18 hereof, shall not be required to be
submitted to arbitration, if the party seeking such remedy or relief objects
thereto, but shall instead be subject to the provisions of Section 18 hereof.
20. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
[one signature page follows]
-10-
IN WITNESS WHEREOF, the parties have caused this Executive
Employment Agreement to be executed the day and year first written above.
PARAGON TECHNOLOGIES, INC.
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
/S/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
