Employment Agreement
Exhibit
10.24
This
Employment Agreement (“Agreement”) is effective as of the 30th day of September,
2005 (the “Effective Date”) between Magnetech
Industrial Services, Inc.,
an
Indiana corporation (the “Company”), and Xxxxxxx Xxxxxxxxxx (the “Executive”).
In
consideration of the mutual covenants and agreements set forth herein, the
parties hereto agree as follows:
Article
I
Employment
The
Company hereby employs Executive, and Executive accepts employment with the
Company, upon the terms and conditions herein set forth.
1.1 Employment.
The
Company hereby employs Executive, and Executive agrees to serve, as the
Company’s Vice President during the term of this Agreement. Executive agrees to
perform such duties as may be assigned to Executive from time to time by
the
Board of Directors and/or the Company’s Chief Executive Officer. Executive
agrees to devote substantially his full business time and attention and best
efforts to the affairs of the Company during the term of this
Agreement.
1.2
Term.
The
term of employment of Executive hereunder will be for the period commencing
on
the effective date of this Agreement and ending on the earliest of:
(a)
December
31, 2008 (the “Initial Term”);
(b)
The
date
of termination of Executive’s employment in accordance with Article IV of this
Agreement;
(c)
The
date
of Executive’s voluntary retirement in accordance with the Company’s plans and
policies; or
(d)
The
date
of Executive’s death or Disability (as defined below).
Unless
this Agreement is terminated pursuant to Paragraphs (b), (c) or (d) above,
the
term of this Agreement shall be extended automatically for successive one
year
periods, unless and until at least three (3) months written notice is given
by
either party requesting termination or renegotiation of this Agreement prior
to
the end of the Initial Term or any anniversary date thereafter.
Article
II
Compensation
2.1
Base
Salary.
Effective as of the Effective Date and during the employment of Executive,
the
Company shall pay to the Executive a base salary at the rate of $105,040
per
year,
and
thereafter at a rate determined by the Company’s Board of Directors (the “Base
Salary”). The Base Salary shall be payable in substantially equal bi-weekly
installments, or otherwise consistent with the Company’s then-current payroll
practices. The Company will deduct and withhold all necessary social security
and withholding taxes and any other similar sums required by law (“Withholding
Taxes”) from Executive’s Base Salary.
2.2
Profit
Sharing, Bonuses and Other Incentive Compensation.
Executive shall be eligible to participate in the Company’s incentive
compensation plan or other similar plans, if any, as established and/or amended
by the Company’s Board of Directors from time to time, subject to applicable
eligibility requirements and other terms and conditions of any such plans.
2.3
Reimbursement
of Expenses.
The
Executive shall be entitled to receive prompt reimbursement of all reasonable
expenses incurred by the Executive in performing services hereunder, including
all expenses of travel, car phone, entertainment and living expenses while
away
from home on business at the request of, or in the service of, the Company,
provided that such expenses are incurred and accounted for in accordance
with
the policies and procedures established by the Company.
2.4
Automobile
Expenses.
The
Company also shall provide Executive
with
an
automobile for business use in accordance with the automobile policies adopted
by the Company from time to time.
2.5
Benefits.
The
Executive shall be entitled to participate in and be covered by all health
insurance, retirement, disability insurance, physical exam and other employee
plans and benefits as established or amended by the Company from time to
time
(collectively referred to herein as the “Company Benefit Plans”) on the same
terms as are generally applicable to other senior executives of the Company,
subject to meeting applicable eligibility requirements.
2.6
Vacations
and Holidays.
During
Executive’s employment with the Company and in accordance with the Company’s
vacation policies applicable to senior executives, Executive shall be entitled
to an annual vacation leave at full pay, such vacation to be two (2) weeks
in
each year of the term hereof or such greater vacation benefits as may be
provided for by the applicable Company policies. Executive shall be entitled
to
such holidays as are established by the Company for all employees.
2.7
Short-term
Disability.
During
Executive’s employment with the Company, Executive shall be provided with
short-term disability coverage for a period of up to 6 months at 60% of base
salary.
Article
III
Non-Competition,
Confidentiality and Nondisclosure
3.1
Confidentiality.
Executive acknowledges that he will be employed in a position of trust and
confidence with respect to the Company. In particular, the Company and Executive
recognize that to provide a high quality of products and services to the
Company’s customers, which benefits both the Company and Executive economically,
the Company will need to reveal
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to
Executive valuable Confidential Information (defined below) known and used
by
the Company and its subsidiaries, affiliates and customers. Executive will
not
during Executive’s employment by the Company or thereafter at any time disclose,
directly or indirectly, to any person or entity or use for Executive’s own
benefit any trade secrets or confidential information relating to the Company’s,
or any of the Company’s subsidiaries’ or affiliates’, business operations,
marketing data, business plans, strategies, employees, negotiations and
contracts with other companies, or any other subject matter pertaining to
the
business of the Company or any of its clients, customers, consultants,
licensees, subsidiaries or affiliates, known, learned, or acquired by Executive
during the period of Executive’s employment by the Company (collectively
“Confidential Information”), except as may be necessary in the ordinary course
of performing Executive’s particular duties as an employee of the
Company.
3.2
Return
of Confidential Material.
Executive shall promptly deliver to the Company on termination of Executive’s
employment with the Company, whether or not for cause and whatever the reason,
or at any time the Company may so request, all memoranda, notes, records,
reports, manuals, drawings, blueprints, and any other documents of a
confidential nature belonging to the Company or its subsidiaries or affiliates,
including all copies of such materials which Executive may then possess or
have
under Executive’s control. Upon termination of Executive’s employment by the
Company, Executive shall not take any document, data, or other material of
any
nature containing or pertaining to the proprietary information of the Company
or
its subsidiaries or affiliates.
3.3
Restrictive
Covenants.
To
reduce the cost to the Company of monitoring and enforcing the compliance
of
Executive with the confidentiality obligations contained in Section 3.1 of
this
Agreement, Executive agrees that he will not, so long as he is employed by
the
Company and, in the case of Section 3.3(b), (c) and (d), for the longer of
(i) a
period of one (1) year from and after the date of termination of his employment,
or (ii) the period during which Executive receives any compensation from
the
Company under the terms of Section 4.4(b) (the “Restricted Period”):
(a) directly
or indirectly own an interest in, manage, operate, join, control, lend money
or
render financial assistance to, as an officer, employee, partner, stockholder,
consultant or otherwise, any individual, partnership, firm, corporation or
other
business organization or entity that, at such time directly competes with,
or
intends to compete with, the Company or any of its subsidiaries or affiliates
in
the business of motor repair, magnet manufacture and repair, preventive
maintenance and electrical contracting, or any other principal line of business
engaged in by the Company or any of its subsidiaries or affiliates at the
time
of such termination (a “Competing Company”). Notwithstanding the foregoing,
Executive shall be entitled to own securities of any entity if such securities
are registered under Section 12(b) or (g) of the Securities Exchange Act
of
1934, as amended, and, upon approval of the Company’s Board of Directors,
Executive shall be entitled to purchase securities of a Competing Company
entity
if such securities are offered to investors irrespective of any employment
or
other participation in the entity by the investor;
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(b) directly
or indirectly, either for Executive or for any other person or entity, solicit
any person or entity to terminate such person’s or entity’s contractual and/or
business relationship with the Company or any of its subsidiaries or affiliates,
nor shall Executive interfere with or disrupt or attempt to interfere with
or
disrupt any such relationship;
(c) engage
for the benefit of himself or any other person or entity, in any activity
of
employment in the performance of which it could be reasonably anticipated
that
he would be required or expected to use or disclose Confidential Information
obtained while an employee of the Company; or
(d) directly
or indirectly solicit any of the Company’s employees, agents, or independent
contractors to leave the employ of the Company for a Competing
Company.
In
the
event of a violation by Executive of the provisions of Section 3.3(b), (c)
or
(d) following termination of employment, Executive hereby forfeits any amount
due and owing Executive under the terms of Section 4.4(b), if any, and such
forfeiture shall be in addition to all other rights and remedies that the
Company may have under this Agreement, at law or in equity, as a result of
any
such violation.
3.4 Intellectual
Property.
(a) Disclosure.
During
the term of this Agreement and during the one year period after termination
of
Executive’s employment hereunder, Executive shall promptly and fully disclose to
the Company all computer programs, documenta-tion, software, and other
copyrightable works (“copyrightable works”), and all discoveries, improvements,
and inventions (“inventions”) conceived, reduced to practice, or made by
Executive, whether solely or jointly with others, which: (i) relate in any
manner to the business or activities of Company and any of its subsidiaries
or
affiliates; or (ii) are suggested or result from any work performed or duties
assigned to Executive on behalf of Company or any of its subsidiaries or
affiliates; or (iii) are made or conceived of through the use of Company’s, or
any of its subsidiaries’ or affiliates’, facilities or resources or using any
Confidential Information; or (iv) otherwise arise during the course of
Executive’s employment with Company (collectively, “Intellectual Property”);
except that the term “Intellectual Property” shall not include any copyrightable
works or inventions which Executive proves to have been conceived and made
by
him after termination of his employment with Company and not based upon any
Confidential Information. This disclosure requirement will apply whether
or not
such Intellectual Property is patentable or copyrightable and whether or
not
made or conceived solely by Executive or in conjunction with another person.
This disclosure requirement will also apply regardless of whether any
Intellectual Property is made during or after Executive’s working hours or made
at or away from his usual place of employment.
(b) Ownership.
All
Intellectual Property shall be the exclusive property of the Company, and
Executive hereby irrevocably assigns to the Company any and all of his rights,
title and interest in and to any and all such Intellectual Property. Without
limiting
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the
generality of the foregoing, all Intellectual Property which constitutes
copyrightable works shall be considered works made for hire for the benefit
of
the Company. If any such work shall be deemed not to be a work made for hire,
or
if Executive should otherwise by operation of law be deemed to retain any
rights
to any such work, Executive hereby irrevocably assigns all of his rights,
title
and interest in and to such work to the Company.
(c) Assistance.
Executive agrees to fully cooperate with and assist the Company in the
preparation and prosecution of patent applications and copyright registration
applications relating to any Intellectual Property, without further
compensation. Executive further agrees to execute any further documents which
may be lawful, necessary or proper to memorialize or secure the exclusive
title
for such Intellectual Property in the Company, without further compensation
to
Executive. If Executive fails to sign and deliver to the Company (or its
agents
or attorneys) any document requested by the Company (or its agents or attorneys)
to evidence the Company’s sole ownership of any Intellectual Property within
fifteen (15) days after the Company’s delivery of any such document to Executive
with a request that Executive sign or deliver same, then Executive agrees
that
the President of the Company or a person designated by the Board of Directors
of
the Company (the “Company’s Representative”) may sign any and all of such
documents in Executive’s name and on his behalf. Accordingly, Executive hereby
makes, constitutes and irrevocably appoints Company’s Representative as
Executive’s agent and attorney-in-fact, said power of attorney being coupled
with an interest, and authorizes Company’s Representative in Executive’s name,
place and stead to execute on Executive’s behalf each and all of such
documents.
3.5 Reasonableness
of Covenants.
The
parties acknowledge and agree that the temporal and other limitations contained
in this Article III are reasonable and necessary for the proper protection
of
the Company. Executive further acknowledges that, in the event of the
termination of his employment with the Company, his skills and experience
are
such that he can obtain employment without soliciting the Company’s customers or
engaging in activity forbidden by this Agreement and that the enforcement
of a
remedy by way of injunction will not prevent him from earning a livelihood.
In
the event, however, a court determines that any of the terms, provisions,
or
covenants contained in this Article III are unreasonable, a court may limit
the
application of any such term, provision or covenant, or modify any such term,
provision or covenant and proceed to enforce this Article III as so limited
or
modified.
3.6
Right
to Injunctive and Equitable Relief.
Executive acknowledges that the Company’s remedy at law for any breach of
Executive’s obligations under this Article III would be inadequate and
specifically agrees that the Company may be entitled to injunctive relief
against him, in addition to any other remedies available at law or in equity,
including compensatory damages incurred by the Company as a result of such
violation and including costs, expenses and reasonable attorneys’ fees and the
right to set off in enforcing any of its rights under this Article III. Should
any party hereto resort to legal proceedings in connection with the enforcement
of the terms of this Article III, the party prevailing in such legal proceedings
pursuant to an adjudication by the court shall be entitled, in addition to
such
other relief as may be granted, to recover its/his or their reasonable costs
and
expenses (including
5
reasonable
fees of attorneys, accountants and others) incurred in connection with the
defense or prosecution, as the case may be, of such legal proceedings from
the
non-prevailing party. Furthermore, the obligations of Executive and the rights
and remedies of the Company under this Article III are cumulative and in
addition to, and not in lieu of, any obligations, rights, or remedies created
by
applicable law relating to misappropriation or theft of trade secrets or
confidential information.
3.7
No
Violation of Other Agreements.
Executive represents that his performance of all the terms of this Agreement
and
as an employee of the Company does not and will not breach any agreement
to (i)
not compete or interfere with the business of a former employer (which term
for
purposes of this Section 3.7 shall also include persons, firms, corporations
and
other entities for which Executive has acted as an independent contractor
or
consultant), (ii) not solicit employees, customers or vendors of any former
employer or (iii) keep in confidence proprietary information acquired by
Executive in confidence or in trust prior to Executive’s employment with the
Company. Executive represents and warrants to and covenants with the Company
that Executive will not bring to the Company any materials or documents of
a
former employer containing confidential or proprietary information that is
not
generally available to the public, unless Executive shall have obtained express
written authorization from any such former employer for their possession
and
use. Executive hereby
agrees to indemnify, defend and hold harmless the Company (including its
officers, directors, employees and agents) from and against any loss, claim,
liability, damages, cost or expense, including reasonable attorneys’ fees,
incurred or suffered by the Company which arise out of or relate to any
inaccuracy or breach of the representations and warranties contained in this
Section.
Article
IV
Termination
4.1
Definitions.
For
purposes of this Article IV, the following definitions shall apply to the
terms
set forth below:
(a)
Cause.
“Cause”
shall be defined as follows:
(i)
Executive’s
conviction of any felony (whether or not involving the Company) which
constitutes a crime of moral turpitude or which is punishable by imprisonment
in
a state or federal correction facility;
(ii) Actions
by Executive during the term of this Agreement involving willful malfeasance
or
gross negligence;
(iii)
Executive’s
commission of an act of fraud or dishonesty, whether prior or subsequent
to the
date hereof, upon the Company,
(iv)
Executive’s
material breach of the terms and conditions of this Agreement; provided that
termination of Executive’s employment pursuant to this subparagraph (iv) shall
not constitute valid termination for “Cause” unless Executive shall have first
received written notice from the Company stating the
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nature
of
the material breach, failure or refusal and affording Executive at least
ten
(10) days to correct the act or omission complained of to the satisfaction
of
the Company’s Board of Directors; or
(v) Executive’s
willful violation of any reasonable rule or regulation applicable to all
senior
executives if such violation is not cured to the satisfaction of the Company
promptly following notice to Executive.
(b)
Disability.
“Disability” shall mean a physical or mental incapacity as a result of which the
Executive becomes unable to continue the proper performance of his duties
hereunder in substantially a full time capacity (reasonable absences because
of
medical reasons for up to six (6) consecutive months excepted, provided,
however, that any new period of incapacity or absences shall be deemed to
be
part of a prior period of incapacity or absences if the prior period terminated
within ninety (90) days of the beginning of the new period of incapacity
or
absence and the new incapacity or absence is determined by the Company, in
good
faith, to be related to the prior incapacity or absence.) A determination
of
Disability shall be subject to the certification of a qualified medical doctor
agreed to by the Company and the Executive or, in the event of the Executive’s
incapacity to designate a doctor, the Executive’s legal representative. In the
absence of agreement between the Company and the Executive, each party shall
nominate a qualified medical doctor and the two doctors so nominated shall
select a third doctor, who shall make the determination as to
Disability.
(c) Good
Reason.
“Good
Reason” shall mean: (i) the failure of the Company to pay any amount due to
Executive hereunder, which failure persists for fifteen (15) days after written
notice of such failure has been received by the Company; (ii) any material
reduction in Executive’s title or a material reduction in Executive’s duties or
responsibilities (unless such reduction is for Cause); (iii) any material
adverse change in Executive’s Base Salary (unless such reduction is for Cause)
and any material adverse change in Executive’s benefits (other than changes that
affect other management employees of the Company to the same or comparable
extent); (iv) any relocation of the premises at which Executive works to
a
location more than 25 miles from such location, without Executive’s consent; or
(v) the Company’s material breach of this Agreement, which breach has not been
cured by the Company within fifteen (15) days after receipt of written notice
specifying, in reasonable detail, the nature of such breach or failure from
Executive.
4.2
Termination
by Company.
The
Company may terminate the Executive’s employment hereunder effective immediately
for Cause. Subject to the other provisions contained in this Agreement, the
Company may terminate this Agreement for any reason other than Cause upon
30
days’ written notice to Executive.
4.3
Termination
by Executive.
Executive may terminate this Agreement effective immediately for Good Reason.
Subject to the other provisions contained in this Agreement, Executive may
terminate this Agreement without Good Reason upon 30 days’ written notice to the
Company.
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4.4
Benefits
Received Upon Termination.
(a)
If
the
Executive’s employment is terminated as a result of Executive’s death or
Disability, by the Company for Cause, or by Executive without Good Reason,
then
the Company shall pay the Executive his Base Salary through the effective
date
of such termination plus credit for any vacation earned but not taken and
the
Company shall thereafter have no further obligations to Executive under this
Agreement; provided, however, that the Company will continue to honor any
obligations that may have vested or accrued under the existing Company Benefit
Plans or any other Agreements or arrangements applicable to the
Executive.
(b)
If
the
Executive’s employment is terminated by the Company without Cause,
or if
this
Agreement is terminated by Executive for Good Reason,
then
the
Company shall:
(i)
pay
to
the Executive within two business days following the date of termination
his
Base Salary through the end of the month during which such termination occurs
plus credit for any vacation earned but not taken;
(ii)
pay
to
the Executive as severance pay: (1) an amount equal to the Executive’s Base
Salary in effect as of the date of termination, which amount shall not exceed
$__________ and which amount shall be paid in installments in accordance
with
the Company’s usual payroll periods for one (1) year, plus (2) an amount equal
to the most recent annual profit sharing and/or incentive bonus received
by the
Executive from the Company, prorated for the portion of the current year
for
which the Executive was employed, or, if more, the amount which would be
due
under the profit sharing and/or incentive bonus plans applicable to Executive
for the then current year calculated as of the effective date of termination,
which amount shall be reduced by any payment previously received for and
during
the then current year as part of the profit sharing and/or incentive bonus
plans; such payment to be made in substantially equal installments in accordance
with the Company’s usual payroll periods over such time period as Executive
receives Base Salary severance payments hereunder;
(iii)
maintain,
at the Company’s expense, in full force and effect, for the Executive’s
continued benefit for one year, all Company medical insurance and reimbursement
plans and other programs or arrangements in which the Executive was entitled
to
participate immediately prior to the date of termination, provided that the
Executive’s continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the Executive’s
participation in any such plan or program is barred, the Company shall arrange
to provide the Executive with medical benefits substantially similar to those
which the Executive was entitled to receive under such plans or programs;
and
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(iv)
pay,
for
the benefit of Executive, all costs, up to a maximum of $10,000, related
to
Executive’s participation in a senior executive outplacement program at an
outplacement firm.
(c)
In
the
event of Executive’s Disability, Executive acknowledges that his employment will
be automatically terminated effective immediately upon the determination
of
Disability; provided that, during the period of the disability prior to such
termination of employment, Executive shall continue to receive all compensation
and benefits as if he were actively employed less any sums received directly
by
the Executive, if any, under any policy or policies of disability income
insurance purchased by the Company. In the event of such termination,
Executive’s rights to receive any salary or payments under this Agreement shall
terminate but Executive shall have the right to continue to receive any and
all
payments made by an insurance company under any and all policies of disability
insurance purchased by the Company. Executive’s rights under any Company Benefit
Plans will be those rights accorded to any terminated employee under the
plan
provisions and applicable law. Executive will remain entitled to receive
any
benefits under state disability or worker’s compensation laws.
(d) The
Company will deduct and withhold all necessary Withholding Taxes from
Executive’s benefits provided hereunder.
4.5
Effect
of Termination.
Upon
any termination of this Agreement, for any reason, Executive shall be deemed
to
have immediately resigned as a director of the Company and all subsidiaries,
if
applicable, without the giving of any notice or the taking of any other
action.
Article
V
Assumption
of Obligations by Successor to Company
5.1
Assumption
of Obligations.
The
Company will require any successor or assign (whether direct or indirect,
by
purchase, merger, consolidation or otherwise) to all or substantially all
of the
business and/or assets of the Company to expressly, absolutely and
unconditionally assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if
no
such succession or assignment had taken place. Any failure of the Company
to
obtain such agreement prior to the effectiveness of any such succession or
assignment shall be a material breach of this Agreement. As used in this
Agreement, “Company” shall mean the Company as herein before defined and any
successor or assign to its business and/or assets as aforesaid which executes
and delivers the agreement provided for in this Article V or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation
of
law. If at any time during the term of this Agreement the Executive is employed
by any corporation a majority of the voting securities of which is then owned
by
the Company, “Company” as used in this Agreement shall in addition include such
employer.
5.2
Beneficial
Interests.
This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal and legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Executive should die while
any
9
amounts
are still payable to him or her hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to
the Executive’s devisee, legatee, or other designee or, if there be no such
designee, to the Executive’s estate.
Article
VI
General
Provisions
6.1
Notice.
For
purposes of this Agreement, notices and all other communications provided
for in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by United States registered mail, return receipt
requested, postage prepaid, as follows:
|
If
to the Company:
|
Magnetech
Industrial Services, Inc.
|
|
|
0000
X. Xxxxxx Xx.
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||
|
Xxxxx
Xxxx, XX 00000
|
||
|
Attn:
President
|
||
|
If
to the Executive:
|
Xxxxxxx
Xxxxxxxxxx
|
|
or
such
other address as either party may have furnished to the other in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
6.2
No
Waivers.
No
provision of this Agreement may be modified, waived or discharged unless
such
waiver, modification or discharge is agreed to in writing signed by the
Executive and the Company. No waiver by either party hereto at any time of
any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be
deemed
a waiver of similar or dissimilar provisions or conditions at the same or
at any
prior or subsequent time.
6.3
Governing
Law; Forum.
This
Agreement and the obligations of the parties hereto shall be construed,
interpreted and enforced in accordance with the laws of the State of Indiana,
without regard to conflicts of law principles.
The
parties consent to exclusive personal jurisdiction of Federal and State courts
in the Northern District of Indiana with respect to any disputes or
controversies arising out of or relating to this Agreement.
6.4
Severability
or Partial Invalidity.
The
invalidity or unenforceability of any provisions of this Agreement shall
not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
6.5
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together will constitute one and
the
same instrument.
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6.6
Legal
Fees and Expenses.
Should
any party institute any action or proceeding to enforce this Agreement or
any
provision hereof, or for damages by reason of any alleged breach of this
Agreement or of any provision hereof, or for a declaration of rights hereunder,
the prevailing party in any such action or proceeding shall be entitled to
receive from the other party all costs and expenses, including reasonable
attorneys’ fees, incurred by the prevailing party in connection with such action
or proceeding.
6.7
Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties and supersedes
all
prior written or oral and all contemporaneous oral agreements, understandings,
and negotiations between the parties with respect to the subject matter hereof.
This Agreement is intended by the parties as the final expression of their
agreement with respect to such terms as are included in this Agreement and
may
not be contradicted by evidence of any prior or contemporaneous agreement.
The
parties further intend that this Agreement constitutes the complete and
exclusive statement of its terms and that no extrinsic evidence may be
introduced in any judicial proceeding involving this Agreement.
6.8
Assignment.
This
Agreement and the rights, duties, and obligations hereunder may not be assigned
or delegated by any party without the prior written consent of the other
party
and any such attempted assignment and delegation shall be void and be of
no
effect. Notwithstanding the foregoing provisions of this Section 6.8, the
Company may assign or delegate its rights, duties, and obligations hereunder
to
any person or entity which succeeds to all or substantially all of the business
of the Company through merger, consolidation, reorganization, or other business
combination or by acquisition of all or substantially all of the assets of
the
Company; provided that such person assumes the Company’s obligations under this
Agreement in accordance with Section 5.1.
6.9
Indemnification.
To the
extent permitted by law, applicable statutes and the Articles of Incorporation,
Bylaws or resolutions of the Company in effect from time to time, the Company
shall indemnify Executive against liability or loss arising out of Executive’s
actual or asserted misfeasance or nonfeasance in the performance of Executive’s
duties or out of any actual or asserted wrongful act against, or by, the
Company
including but not limited to judgments, fines, settlements and expenses incurred
in the defense of actions, proceedings and appeals therefrom. The Company
shall
endeavor to obtain Directors and Officers Liability Insurance to indemnify
and
insure the Company and Executive from and against the aforesaid liabilities.
The
provisions of this paragraph shall apply to the estate, executor, administrator,
heirs, legatees or devisees of Executive.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
|
“Company”
|
“Executive”
|
||||
|
Magnetech
Industrial Services, Inc.
|
|||||
|
By:
|
/s/ Xxxx X. Xxxxxxx | /s/ Xxxxxxx Xxxxxxxxxx | |||
|
Xxxxxxx
Xxxxxxxxxx
|
|||||
|
Its:
|
President | ||||
|
Date:
|
9/30/05 |
Date:
|
9/30/05 | ||
11
