Exhibit 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as of
September 1, 2001, by and between Royal Precision, Inc, a Delaware corporation
(the "Company"), and Xxxx Xxxxxxxx, an individual residing at 0000 Xxxxxxxx
Xxxxx, Xxxx, Xxxxxxxx 00000 (the "Executive").
RECITALS
WHEREAS, prior to the date of this Agreement, Executive has held positions in
plant management, general management and is now a general manager of a global
operation and a division head of Precision Cast Parts; and
WHEREAS, the Company desires to employ Executive from September 24, 2001 (the
"Effective Date") until expiration of the term of this Agreement, and Executive
is willing to be employed by the Company during that period, on the terms and
subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and promises of the
parties, the Company and Executive covenant and agree as follows:
1. DUTIES. During the term of this Agreement, Executive will be employed by
the Company to initially serve as President and Chief Operating Officer of the
Company. Executive will devote such full amount of business time to the conduct
of the business of the Company as may be reasonably required to effectively
discharge Executive's duties under this Agreement and, subject to the
supervision and direction of the Company's Chairman of the Board and Board of
Directors (the "Board"), will faithfully, industriously, and to the best of his
ability, experience and talent, perform those duties and have such authority and
powers as are contained in the Company's job description for the offices of a
President and Chief Operating Officer. The Executive shall observe and abide by
all reasonable corporate policies and decisions of the Company in all business
matters.
2. TERM OF EMPLOYMENT
2.1. DEFINITIONS. For purposes of this Agreement the following terms have
the following meanings:
(a) "Termination for Cause" means termination by the Company of
Executive's employment (i) by reason of Executive's willful dishonesty towards,
fraud upon, or deliberate injury or attempted injury to, the Company, (ii) by
reason of Executive's breach of this Agreement or failure to discharge the
outlined duties or (iii) by reason of Executive's negligence or intentional
misconduct with respect to the performance of Executive's duties under this
Agreement.
(b) "Termination Other than For Cause" means termination by the
Company of Executive's employment by the Company for reasons other than the
Disability (as defined in Section 2.5) or the death of Executive or those which
constitute Termination for Cause.
(c) "Voluntary Termination" means termination by Executive of
Executive's employment with the Company, excluding termination by reason of
Executive's Disability or death as described in Sections 2.5 and 2.6.
2.2. BASIC TERM. The term of employment of Executive by the Company (the
"Term") will commence on the Effective Date and will extend through the period
ending on the third anniversary of the Effective Date (the "Termination Date").
The Company and Executive may extend the Term by mutual written agreement, and
such additional period shall be included in the definition of "Term." If
Executive, upon the request of the Company, continues to render services in the
Company's employ after the Term in the absence of any written extension, it is
understood that such continued employment will be "at will," terminable at any
time by either party.
2.3. TERMINATION FOR CAUSE. Termination for Cause may be effected by the
Company at any time during the Term by written notification to Executive. Upon
Termination for Cause, Executive is to be immediately paid all accrued salary,
incentive compensation to the extent earned, vested deferred compensation (other
than pension plan or profit sharing plan benefits, which will be paid in
accordance with the applicable plan), and accrued vacation pay, all to the date
of termination, but Executive will not be paid any severance compensation.
2.4. TERMINATION OTHER THAN FOR CAUSE. Notwithstanding anything else in
this Agreement, the Company may effect a Termination Other Than for Cause at any
time upon giving notice to Executive of such Termination Other Than for Cause.
Upon any Termination Other Than for Cause, Executive will immediately be paid
all accrued salary, all incentive compensation to the extent earned, severance
compensation as provided in Section 4, vested deferred compensation (other than
pension plan or profit sharing plan benefits, which will be paid in accordance
with the applicable plan), and accrued vacation pay, all to the date of
termination.
2.5. TERMINATION DUE TO DISABILITY. In the event that, during the Term,
Executive should, in the reasonable judgment of the Board, fail to perform
Executive's duties under this Agreement because of illness or physical or mental
incapacity ("Disability"), and such Disability continues for a period of more
than three consecutive months or for a period of 26 weeks out of any 52 weeks,
the Company will have the right to terminate Executive's employment under this
Agreement by written notification to Executive and payment to Executive of all
accrued salary and incentive compensation to the extent earned, severance
compensation as provided in Section 4, vested deferred compensation (other than
pension plan or profit sharing plan benefits, which will be paid in accordance
with the applicable plan), and all accrued vacation pay, all to the date of
termination. Any determination by the Board with respect to Executive's
Disability must be based on a determination of competent medical authority or
authorities, a copy of which determination shall be delivered to Executive at
the time it is delivered to the Board.
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2.6. DEATH. In the event of Executive's death during the term of this
Agreement, Executive's employment is to be deemed to have terminated as of the
last day of the month during which Executive's death occurred, and the Company
will pay to Executive's estate accrued salary, incentive compensation to the
extent earned, vested deferred compensation (other than pension plan or profit
sharing plan benefits, which will be paid in accordance with the applicable
plan), and accrued vacation pay, all to the date of termination. In addition,
the Company shall pay Executive's Base Salary to Executive's surviving spouse
for the period commencing on the first month following Executive's death and
ending on the shorter of (a) the death of Executive's surviving spouse, or (b)
six months.
2.7. VOLUNTARY TERMINATION. In the event of a Voluntary Termination, the
Company will immediately pay to Executive all accrued salary, all incentive
compensation to the extent earned, vested deferred compensation (other than
pension plan or profit sharing plan benefits, which will be paid in accordance
with the applicable plan), and accrued vacation pay, all to the date of
termination, but Executive will not be paid any severance compensation.
3. SALARY, BENEFITS AND OTHER COMPENSATION.
3.1. BASE SALARY. As payment for the services to be rendered by Executive
as provided in Section 1 and subject to the terms and conditions of Section 2,
the Company agrees to pay to Executive a "Base Salary," payable in accordance
with the customary pay practices of the Company. The Base Salary payable to
Executive under this Section will initially be $185,000. Executive will be
entitled to regular annual salary reviews and raises during the term of this
Agreement in the same general manner as other officers of the Company.
3.2. BONUS. In addition to amounts paid to Executive pursuant to other
sections of this Agreement, Executive shall be entitled to a bonus that will
equal up to 50% of his Base Salary if key objectives are accomplished.
Initially, for fiscal year 2002, 75% of this bonus will be based upon net income
before tax of the Company for the period September 1, 2001 and May 31, 2002;
and, 25% of the bonus will be based upon cash flow of the Company from
operations for the same period. The Personnel and Compensation Committee of the
Board shall establish a plan outlining how such bonus shall be earned for fiscal
year 2002 and the years thereafter.
3.3. BENEFIT PLANS. During the term of Executive's employment under this
Agreement, Executive is to be eligible to participate in all employee benefit
plans to the extent maintained by the Company, including (without limitation)
any life, disability, health, accident and other insurance programs, paid
vacations, and similar plans or programs, subject in each case to the generally
applicable terms and conditions of the plan or program in question and to the
determinations of any committee administering such plan or program. The Company,
in lieu of other life insurance benefits, shall use reasonable efforts in good
faith to secure a $500,000 term life insurance policy ( or such other policy as
the Company may determine is reasonable having a death benefit of at least
$500,000) on the life of Executive which shall be owned by the Company. So long
as Executive is an employee of the Company, Executive shall select the
beneficiary of such policy.
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3.4. WITHHOLDING OF TAXES. Executive understands that the services to be
rendered by Executive under this Agreement will cause Executive to recognize
taxable income, which is considered under the Internal Revenue Code of 1986, as
amended, and applicable regulations thereunder as compensation income subject to
the withholding of income tax (and Social Security or other employment taxes).
Executive hereby consents to the withholding of such taxes as are required by
the Company.
3.5. EXPENSES. During the term of this Agreement, the Company will
reimburse Executive for Executive's reasonable out-of-pocket expenses incurred
in connection with the Company's business, including travel expenses, food, and
lodging while away from home, subject to such policies as the Company may from
time to time reasonably establish for its employees.
3.6. SIGNING BONUS. The Company shall pay Executive a signing bonus in the
amount of $30,000. Such bonus shall be payable as follows:
DATE AMOUNT
---- ------
November 15, 2001 $15,000
December 15, 2001 $15,000
3.7. REIMBURSEMENT OF FEES. After execution of this Agreement, the Company
shall reimburse Executive for normal moving expenses, closing costs and realtor
fees on both the sale and purchase of his old and new homes upon presentation of
appropriate documentation. The Company will increase the payment for
reimbursement of these fees to cover the amount of any taxes that may be due by
Executive as a result of receipt of such reimbursement.
3.8. DEFERRAL PROGRAM. The Company shall use reasonable efforts in good
faith to cause to be established an appropriate salary deferral program for the
benefit of Executive, which may be made available to others, pursuant to which
Executive may contribute, on a tax deferred basis, up to 25% of his compensation
with no match by the Company.
3.9. DIRECTORSHIP. The Company shall cause Executive to be a director of
the Company and shall cause Executive to be re-nominated and elected as a
director of the Company for so long as Executive continues to be the President
of the Company.
3.10. STOCK OPTIONS. The Company shall cause to be granted to Executive a
nonqualified stock option to purchase up to 250,000 shares of Common Stock of
the Company under the Company's Stock Option Plan, at an exercise price equal to
the closing price of a share of common stock of the Company on September 21,
2001. The options shall vest at the rate of 25% per year starting on the first
anniversary of date of the Effective Date.
3.11. COUNTRY CLUB. On and after June 1, 2002, the Company will reimburse
Executive for the initiation fee for one country club up to $25,000.
4. SEVERANCE COMPENSATION.
4.1. TERMINATION OTHER THAN FOR CAUSE; PAYMENT IN LIEU OF NOTICE. In the
event Executive's employment is terminated in a Termination Other Than for
Cause, Executive will be paid as severance pay Executive's Base Salary for the
period commencing on the date that Executive's employment is terminated and
ending 12 months from the date of such termination, on the dates specified in
Section 3.1 for payment of Executive's Base Salary.
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4.2. TERMINATION FOR DISABILITY. In the event Executive's employment is
terminated because of Executive's Disability pursuant to Section 2.5, Executive
will be entitled to the benefits available under the Company's disability
policies, if any, and such salary continuation as may be determined by the
Personal and Compensation Committee.
4.3. OTHER TERMINATION. In the event of a Voluntary Termination,
Termination for Cause or Death, Executive or Executive's estate will not be
entitled to any severance pay except salary continuation as may be determined by
the Personal and Compensation Committee.
5. NO CONFLICT. Executive hereby represents and warrants to the Company that
he is not under any contractual, fiduciary or other obligation that would
conflict in any manner whatsoever with his obligations and duties under this
Agreement, and that the execution and performance of this Agreement by Executive
will not breach any agreement (oral or written), fiduciary duty or other
obligation to which Executive presently is a party or by which Executive is
bound. Executive shall indemnify, defend and hold harmless the Company and its
officers, directors, shareholders, employees and agents from and against any and
all costs and expenses (including, without limitation, reasonable attorney's
fees) incurred by the Company as a result of or in connection with any claim
successfully made by any other person or entity that Executive's employment with
the Company has caused or will cause (a) any harm to such person or entity, or
(b) the breach of any contractual, fiduciary or other obligation owed to such
person or entity.
6. PROPRIETARY INFORMATION; NON-COMPETE, ETC.
6.1. POSITION OF LOYALTY. In the course of Executive's employment with the
Company, and because of the nature of Executive's responsibilities, Executive
may acquire and have access to valuable trade secrets, proprietary data and
other confidential information (collectively, "Confidential Information") with
respect to the Company's customers, suppliers, competitors and business. Such
Confidential Information includes but is not limited to the following: the
Company's existing and contemplated services, products, business and financial
methods and practices, plans, pricing, selling techniques, business systems,
product technologies and formulae, and special methods and processes involved in
providing services, lists of the Company's existing and prospective suppliers,
subcontractors and/or customers, methods of obtaining suppliers and customers,
credit and financial data of the Company's present and prospective suppliers
and/or customers, particular business requirements of the Company's present and
prospective customers as well as similar information related to any subsidiaries
the Company may have. In addition, Executive, on behalf of the Company, may in
the future enhance or develop personal acquaintances and relationships with the
Company's present and prospective suppliers, subcontractors and customers, which
acquaintances and relationships may constitute the Company's only contact with
such persons or entities. As a consequence thereof, the parties agree that
Executive occupies or will occupy a position of trust and confidence with
respect to the Company's affairs and its products and services. In view of the
foregoing and in consideration of the remuneration to be paid to Executive
hereunder, Executive acknowledges and agrees that it is reasonable and necessary
for the protection of the goodwill and business of the Company that Executive
make the covenants contained in Sections 6.2 through 6.6 below regarding the
conduct of Executive during and subsequent to employment with the Company, and
that the Company will suffer irreparable injury if Executive engages in conduct
prohibited thereby. Executive represents that observance of the aforementioned
covenants will not cause Executive any undue hardship nor will it unreasonably
interfere with Executive's ability to earn a livelihood, so long as the
remuneration to be paid to Executive hereunder is timely paid without offset or
counterclaim.
6.2. NON-DISCLOSURE. Executive, while in the employ of the Company or at
any time thereafter, will not, without the express written consent of the
Company, directly or indirectly communicate or divulge to, or use for his own
benefit or for the benefit of any other person, firm, association or
corporation, any of the Company's or its subsidiaries' Confidential Information
which was communicated to or otherwise learned of or acquired by Executive
during the course of his employment with the Company; provided; however,
Executive may disclose or use such information under any of the following
circumstances: (a) disclosure or use thereof in good faith by Executive in
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connection with the performance of his duties in the course of his employment by
the Company; (b) disclosure which Executive is advised by counsel is required by
a court or other governmental agency of competent jurisdiction or (c) disclosure
or use by Executive of any such information or data which is generally known
within the industry or is otherwise available through independent sources.
6.3. RETURN OF INFORMATION AND EQUIPMENT. Promptly after the termination of
employment with the Company (whether or not pursuant to an employment
agreement), Executive will deliver to the Company all originals and copies of
memoranda, customer lists, samples, records, documents, computer programs,
product information, hardware, equipment (e.g., computers, fax machines) and
other materials and equipment owned or leased by the Company and requested by
the Company which he has obtained from the Company (other than as a gift) while
serving in any such capacity. Executive will take all action necessary to remove
any Confidential Information from any computers or other electronic devices he
may own or possess and upon request certify to the Company that he has done so.
6.4. NON-COMPETITION. Executive agrees that during his employment with the
Company and for a period of one year thereafter (or if this period shall be
unenforceable by law, then for such lesser period as shall be required by law to
make the provisions of this Section enforceable), hereinafter referred to as the
"Non Competition Period", so long as the Company is not in breach of this
Agreement, Executive will not, without the express written consent of the
Company (by an officer other than Executive) or approval of the Board, directly
or indirectly, own, manage, participate in, advise or consult with or otherwise
engage in or have any connection with (as an employee, representative, agent or
otherwise) any business in any geographic area in which the Company then
competes which provides any product or service (or similar or related product or
service) provided by the Company or actively contemplated to be provided by the
Company on the date of termination of Executive's employment with the Company
except that Executive shall not be precluded hereby from owning stock or any
other securities in a publicly traded company where such investment entitles
Executive to less than one percent of the voting control over such company.
6.5. NON-SOLICITATION OF CUSTOMERS, SUBCONTRACTORS AND SUPPLIERS. During
Executive's employment with the Company, and for a period of (i) three years
following the termination of Executive's employment with the Company for any
reason whatsoever, other than breach of this Agreement by the Company (or if
this period shall be unenforceable by law, then for such lesser period as shall
be required by law to make the provisions of this Section enforceable), or (ii)
if the employment of Executive is terminated pursuant to Section 4.1, 12 months
following the termination of Executive's employment with the Company, and except
in the good faith furtherance of the interests of the Company, Executive will
not, without the express written consent of the Company (by an officer other
than Executive) or approval of the Board, contact (whether or not initiated by
Executive), with a view toward selling any product or service competitive with
any product or service sold or, to Executive's knowledge, proposed to be sold by
the Company or any subsidiary of the Company at the time of such contact, any
person, firm, association or corporation: (a) to which the Company or any
subsidiary of the Company sold any product or service during the preceding year,
(b) which Executive solicited, contacted or otherwise dealt with on behalf of
the Company or any subsidiary of the Company, or (c) which Executive was
otherwise aware was a customer or prospective customer, or supplier
subcontractor or prospective supplier subcontractor, of the Company or any
subsidiary of the Company. Executive will not directly or indirectly make any
such contact, either for his benefit or for the benefit of any person, firm,
association or corporation, and Executive will not in any manner assist any such
person, firm, association or corporation to make any such contact.
6.6. NON-INTERFERENCE. During Executive's employment with the Company, and
for a period of three years following the termination of Executive's employment
with the Company for any reason whatsoever, other than breach of this Agreement
by the Company (or if this period shall be unenforceable by law, then for such
lesser period as shall be required by law to make the provisions of this Section
enforceable), Executive shall not induce or encourage, directly or indirectly,
(a) any employee of the Company to leave his or her employment, or to seek
employment with anyone other than the Company, unless it has been determined by
the Board or a division head where appropriate, that such employee's performance
or other characteristics or circumstances are such that such employee's leaving
the Company is in the best interests of the Company, or (b) any customer,
subcontractor or supplier (including without limitation, independent contractors
engaged by the Company to provide or deliver products to, or perform services
for, customers of the Company) of the Company to modify or terminate any
relationship, whether or not evidenced by a written contract, with the Company
unless it has been determined by the Board or division head, where appropriate,
that such modification or termination is in the best interests of the Company.
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7. INDEPENDENT ADVICE. Each of Executive and the Company hereby represents and
warrants to the other that he or it has been advised to and has had the
opportunity to seek the advice of independent counsel in connection with this
Agreement and the transactions contemplated hereby and has obtained such
independent advice or hereby waives his or its right to seek such independent
advice. Each further represents that he or it has made the decision to execute
this Agreement independent of any other agreement and independent of any
statements or opinions which may have been made or given by any counsel,
Executive or the Company.
8. ARBITRATION.
8.1. AGREEMENT. The Company and Executive agree to settle any and all
claims, disputes or controversies arising out of or relating to (a) Executive's
application or candidacy for employment, (b) any aspect of Executive's
employment with the Company and/or (c) the cessation of Executive's employment
with the Company (hereinafter any such claims, disputes and controversies shall
be referred to as "Disputes"), exclusively by final and binding arbitration in
the manner set forth in this Agreement, except for Disputes set forth in Section
8.3 which shall not be subject to arbitration. Such arbitration shall be
administered by the American Arbitration Association ("AAA") in accordance with
the AAA's National Rules for the Resolution of Employment Disputes ("Rules")
then in effect, as modified by this Agreement. This means that Disputes subject
to arbitration will be decided by a panel of three arbitrators, rather than by a
court or jury, and that the Company and Executive waive their rights to a court
or jury trial. Additionally, if either party files a lawsuit regarding a Dispute
subject to arbitration, the other party may use this Agreement in support of its
request to the court to dismiss the lawsuit and require such party to instead
use arbitration. If either party files a lawsuit in court involving claims which
are, and other claims which are not, subject to arbitration, such party agrees
that the court shall stay litigation of the non-arbitrable claims and require
that arbitration take place with respect to those claims subject to arbitration.
The arbitrators' decision on the arbitrable claims, including any determinations
as to the disputed factual or legal issues, shall be entitled to full force and
effect in any later court lawsuit on any non-arbitrable claims. Both parties
agree that Executive may still file administrative charges with the Equal
Employment Opportunity Commission or similar federal, state or local agency, but
that upon receipt of a right-to-xxx letter or similar administrative
determination, Executive shall arbitrate against the Company any Dispute
encompassed therein.
8.2. EXAMPLES OF DISPUTES SUBJECT TO ARBITRATION. Disputes subject to
arbitration under this Agreement include, without limitation, claims, disputes
and controversies arising under the Age Discrimination in Employment Act, Title
VII of the Civil Rights Act of 1964, as amended, including the amendments of the
Civil Rights Act of 1991, the Americans with Disabilities Act, the Fair Labor
Standards Act, 42 U.S.C. section 1981, as amended, including the amendments of
the Civil Rights Act of 1991, Executive Polygraph Protection-Act, Executive
Retirement Income Security Act, the National Labor Relations Act, federal, state
or other governmental discrimination statutes, federal, state or other
governmental statutes, common law or ordinances regulating employment or
employment termination, the law of contract or the law of tort, including, but
not limited to, claims for malicious prosecution, wrongful discharge, wrongful
arrest/wrongful imprisonment, intentional or negligent infliction of emotional
distress or defamation. Additionally, whether a Dispute is subject to
arbitration is an issue that shall be decided by arbitration.
8.3. DISPUTES NOT SUBJECT TO ARBITRATION. The only Disputes between the
Company and Executive not subject to arbitration are (a) claims by Executive for
state unemployment benefits and state workers' compensation benefits, (b) claims
by the Company that Executive violated Section 6 of this Agreement and (c)
claims by the Company that Executive violated any common law duties owed to the
Company after termination of employment (hereinafter any such claims, disputes
and controversies shall be referred to as a "Non-Arbitrable Dispute"). Statutory
or common law claims alleging that the Company retaliated or discriminated
against Executive for filing a state employment insurance claim, however, shall
be subject to arbitration. With respect to Section 6 of this Agreement,
Executive acknowledges and agrees that the remedy at law for any breach of the
provisions therein is inadequate and that the Company, in addition to any other
relief available to it, shall be entitled to temporary and permanent injunctive
relief without the necessity of proving actual damage.
8.4. PROCEDURES. Commencement of arbitration shall be governed by the
Rules. Any Dispute subject to arbitration must be submitted within one year
after the date on which the submitting party knew, or through reasonable
diligence should have known, of the facts giving rise to Executive's claim(s);
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however, if such Dispute arises under a particular statute, the time limit
provided for in such statute, if any, shall govern. Three arbitrators shall be
used and shall be appointed in accordance with Section 8.5. The place of
arbitration shall be Torrington, Connecticut and a stenographic record shall be
made of any arbitration hearing. The award rendered by the arbitrators shall be
in writing and shall be based on applicable law and judicial precedent. Unless
the parties otherwise agree, the award shall include the findings of fact and
conclusions of law on which the award is based. Judgment on such award may be
entered in any court having jurisdiction thereof. The award rendered by the
arbitrators shall be final and binding as to both Executive and the Company.
Either party may appeal the arbitrators' decision to a court in accordance with
the appeal procedures of the Federal Arbitration Act, 9 U.S.C. section 1 et seq.
or Delaware's arbitration laws.
8.5. APPOINTMENT OF ARBITRATORS. Each party shall appoint an arbitrator
within 20 days after submission of the Dispute to arbitration and the
arbitrators so appointed shall appoint a third arbitrator within 10 days from
the date of the appointment of the last party-appointed arbitrator. A party not
appointing an arbitrator in a timely fashion shall forfeit its right to
participate in the selection of the third arbitrator hereunder. If no
appointment of the third arbitrator is made within that time or any agreed
extension thereof, the AAA may appoint a neutral arbitrator who shall act as
chairperson.
8.6. CONFIDENTIALITY. All aspects of an arbitration pursuant to this
Agreement and the Rules, including the hearing and record of the proceeding, and
the fact of arbitration shall be confidential and shall not be open to the
public, except (a) to the extent both parties agree otherwise in writing, (b) as
may be appropriate in any subsequent proceeding between the parties, or (c) as
may be appropriate in response to a governmental agency or legal process. All
settlement negotiations, mediations, and the results thereof shall be
confidential.
9. MISCELLANEOUS.
9.1. WAIVER. The waiver of any breach of any provision of this Agreement
will not operate or be construed as a waiver of any subsequent breach of the
same or other provision of this Agreement.
9.2. ENTIRE AGREEMENT; MODIFICATION. Except as otherwise provided in this
Agreement, this Agreement represents the entire understanding among the parties
with respect to the subject matter of this Agreement, and this Agreement
supersedes any and all prior understandings, agreements, plans, and
negotiations, whether written or oral, with respect to the subject matter
hereof, including without limitation, any understandings, agreements, or
obligations respecting any past or future compensation, bonuses, reimbursements,
or other payments to Executive from the Company. All modifications to the
Agreement must be in writing and signed by the party against whom enforcement of
such modification is sought.
9.3. DELIVERY OF MATERIALS; NOTICES. Materials required to be delivered to
either party hereunder shall be delivered as indicated below. Any notice, or
other communication under this Agreement shall be in writing and shall be
considered given: (a) upon personal delivery or delivery by telecopier (with
confirmation of completed delivery by sender), (b) two business days after being
deposited with an "overnight" courier or "express mail" service, or (c) seven
business days after being mailed by registered or certified first class mail,
return receipt requested, in each case addressed to the notified party at its
address set forth below (or at such other address as such party may specify by
notice to the other delivered in accordance with this section):
If to the Company: If to Executive:
Royal Precision, Inc. Xxxx Xxxxxxxx
000 Xxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000 Xxxx, Xxxxxxxx 00000
Attn.: Chairman of the Board
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9.4. HEADINGS. The section headings of this Agreement are intended for
reference and may not by themselves determine the construction or interpretation
of this Agreement.
9.5. GOVERNING LAW. This Agreement is executed in and shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
contracts to be performed solely in the State of Delaware.
9.6. SURVIVAL OF THE COMPANY'S OBLIGATIONS. This Agreement will be binding
on, and inure to the benefit of, the executors, administrators, heirs,
successors, and assigns of the parties; provided, however, that except as
expressly provided in this Agreement, this Agreement may not be assigned either
by the Company or by Executive.
9.7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together will constitute one and the same
Agreement.
9.8. ENFORCEMENT. If any portion of this Agreement is determined to be
invalid or unenforceable, that portion of this Agreement will be adjusted,
rather than voided, to achieve the intent of the parties under this Agreement.
9.9. LEGAL FEES. For any Dispute subject to arbitration and any
Non-Arbitrable Dispute described in Section 8.3(a), regardless of the outcome,
each party, having full knowledge that various federal and state statutes
provide for the recovery of attorney fees and expenses under certain situations,
agrees to be fully responsible for its own attorney fees and incidental costs
and such fees and costs shall not be included in any award or order. All other
costs, fees and expenses shall be handled as follows: (a) the initial filing fee
shall be paid by the party filing for arbitration; (b) the remaining costs of
arbitration, including without limitation, the daily or hourly fees and expenses
(including travel) of the arbitrators who decide the case, the cost of a
reporter who transcribes the proceeding, and expenses of renting a room in which
the arbitration is held shall be split evenly between the parties and shall be
paid at the time provided for in the Rules. For any Non-Arbitrable Dispute
described in Section 8.3(b) or (c), the prevailing party shall be entitled to
recover from the other party all costs, legal fees and expenses through all
proceedings, trials and appeals.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
ROYAL PRECISION, INC. EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------------
Xxxxxxx X. Xxxxxxxx Xxxx Xxxxxxxx
Chairman of the Board
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