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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 9th day of June,
1999, is entered into by Optical Technology Group, Inc., a Maryland corporation
with its principal place of business at One Democracy Plaza, 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (the "Company"), and Xxxxxxx X. Xxx,
residing at 00000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx (the "Employee").
The Company desires to employ the Employee, and the Employee desires to
be employed by the Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the Company, upon the
terms set forth in this Agreement, for the period commencing on June 9, 1999
(the "Commencement Date") and ending on December 31, 2003 (such period, as it
may be extended, the "Employment Period"), unless sooner terminated in
accordance with the provisions of Section 4. For purposes of this Agreement, the
employment of the Employee by Optical Technology Group, Inc. (the "Parent") or
an affiliate of the Parent shall be deemed to constitute employment by the
Company, and the period of such employment with the Parent or an affiliate shall
be deemed to be part of the Employment Period.
2. Title; Capacity. The Employee shall serve as President, Chief
Executive Officer and Chairman of the Board of the Company. The Employee shall
be subject to the supervision of, and, subject to the first sentence of this
Section 2, shall have such authority as is delegated to him by, the Board of
Directors of the Company (the "Board").
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The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and
responsibilities as the Board shall from time to time reasonably assign to him
consistent with his positions as President and Chief Executive Officer. During
the Employment Period, the Employee agrees to devote such business time,
attention and energies to the business and interests of the Company as is
necessary for him to carry out his responsibilities under this Agreement and the
discharge of his duties and responsibilities hereunder. The Employee agrees to
abide by the rules, regulations, instructions, personnel practices and policies
of the Company and any changes therein which may be adopted from time to time by
the Company, as such rules, regulations, instructions, personnel practices and
policies may reasonably be applied to the Employee as President and Chief
Executive Officer of the Company. The Employee acknowledges receipt of copies of
all such rules and policies committed to writing as of the date of this
Agreement.
3. Compensation and Benefits.
3.1 Salary. The Company shall pay the Employee, in semi-monthly
installments, an annual base salary of Four Hundred Eighty Five Thousand Dollars
($485,000) with a bonus in the amount of One Hundred Fifteen Thousand Dollars
($115,000) for the one-year period commencing on the Commencement Date, which
amount shall be subject to increase but not decrease during that period. After
June 9, 2000, the Board of Directors of the Company shall set the compensation
and bonus of the Employee. The Company agrees to review the Employee's annual
base salary on an annual basis no later than July 1 of each calendar year
commencing in 2000 to consider a merit increase in such annual base salary for
such calendar year based upon the performance of the Employee during the prior
calendar year. Any such merit increase shall be effective as of the first day of
such calendar year. In the event that the
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Employee is, or is to be, employed for less than a full calendar month, the
semi-monthly installments of the annual base salary shall be appropriately
adjusted.
3.2 Fringe Benefits. The Employee shall be entitled to participate
in all bonus, benefit and fringe benefit programs that the Company or the Parent
establishes and makes available to employees or executives of the Company, to
the extent that Employee's position, tenure, salary, age, health and other
qualifications make him eligible to participate, which programs shall be as
favorable as those made available to employees of the Parent in comparable
positions. The Employee shall be entitled to four (4) weeks paid vacation per
year, to be taken at such times as may be approved by the Company or its
designee.
3.3 Reimbursement of Expenses. The Company shall reimburse the
Employee for reasonable travel, entertainment and other expenses incurred or
paid by the Employee in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement, in accordance with
and subject to the terms of the policies of the Company.
4. Employment Termination. The employment of the Employee by the
Company pursuant to this Agreement shall terminate upon the occurrence of any of
the following:
4.1 Expiration of the Employment Period in accordance with
Section 1;
4.2 At the election of the Company, for cause, immediately upon
written notice by the Company to the Employee. For the purposes of this Section
4.2, "Cause" for termination shall be deemed to exist solely upon the occurrence
of an event set forth in "Exhibit A to Executive Employment Agreement," which
has been attached hereto as Exhibit A; or
4.3 Thirty (30) days after the death or disability of the Employee.
As used in this Agreement, the term "disability" shall mean the inability of the
Employee, due to a physical
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or mental disability, for a period of ninety (90) consecutive days during any
360-day period to perform the services contemplated under this Agreement. A
determination of disability shall be made by a physician satisfactory to both
the Employee and the Company, provided that if the Employee and the Company do
not agree on a physician, the Employee and the Company shall each select a
physician and these two together shall select a third physician, whose
determination as to disability shall be binding on all parties.
4.4 At the election of the Employee, upon not less than sixty (60)
days' prior written notice to the Company given promptly after the occurrence of
the event giving rise to such termination, in the event of the Company's taking
any of the following actions, which actions shall not have been cured within
such sixty (60)-day period: (a) material and adverse diminution, on a cumulative
basis, of the Employee's duties, authority, position, compensation (other than
bonus or other discretionary elements of the Employee's compensation) or
aggregate benefits, including, without limitation, failure to cause the Employee
to retain the positions of President and Chief Executive Officer of the Company;
(b) the failure of the Employee to be elected to and remain Chairman of the
Board throughout the Employment Period (provided the Employee is willing to
serve as such on the same terms and conditions as other employee-directors)
(unless the Employee is removed from the Board of Directors in connection with
the termination of the Employee's employment pursuant to Sections 4.2, 4.3, or
4.4 of this Agreement); or (c) the relocation (other than upon the Employee's
recommendation) of the Company's principal executive offices to a location more
than fifty (50) miles outside the city limits of Bethesda, Maryland.
5. Effect of Termination.
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5.1 Termination by the Company for Cause. In the event the
Employee's employment is terminated by the Company pursuant to Section 4.2, the
Company shall pay to the Employee the compensation and benefits otherwise
payable to him under Section 3 through the last day of his actual employment by
the Company.
5.2 Termination by the Company Without Cause; Termination by the
Employee for Cause.
(a) In the event the Employee's employment is terminated by the
Employee pursuant to Section 4.4, or by the Company for any reason other than
Cause as defined in Section 4.2 ("Without Cause") (each, a "Qualifying
Termination"), the Company shall pay or provide to the Employee the compensation
and benefits payable or provided to him under Section 3 through the last day of
his actual employment by the Company. If the Employee's employment is terminated
by the Employee pursuant to Section 4.4 or by the Company Without Cause, the
provisions of Section 6 shall cease to apply to the Employee as of the effective
date of termination.
(b) In the event of a Qualifying Termination, the Company shall
make severance payments to the Employee in an amount equal to (A) the greater of
(1) the entire remaining portion of his compensation for the term of this
Agreement, or (2) the amount of his annual salary at the date of termination,
which amount is to be paid in equal increments over the twelve (12)-month
period commencing on the effective date of such termination, plus (B) in a lump
sum within ninety (90) days after the end of the applicable fiscal year, the
Annual Bonus that would otherwise have been paid to Employee for the fiscal year
in which such termination occurred.
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(c) The severance payment provided for in this Section 5.2 shall
be made in monthly installments on the first day of each calendar month. Such
installments shall be appropriately adjusted in the event a severance payment is
due for any partial calendar month.
(d) Following any Qualifying Termination, the Company shall
continue to pay for or provide to the Employee the fringe benefits other than
health, disability and term life insurance benefits as may have been provided to
the Employee in accordance with Section 3.2 immediately prior to such Qualifying
Termination for a period ending on the earliest of (i) December 31, 2003, (ii)
the date of the Employee's employment by a third party on a substantially
full-time basis, (iii) the date six months after the effective date of such
Qualifying Termination, or (iv) the death of the Employee. Following any
Qualifying Termination, the Company shall continue to pay for or provide to the
Employee such health, disability and term life insurance benefits as may have
been provided to the Employee in accordance with Section 3.2 immediately prior
to such Qualifying Termination (subject to changes in the terms of such coverage
by the provider as may be applicable to the Company as a whole) for a period
ending on the earliest of (A) the date of the Employee's employment by a third
party on a substantially full-time basis, if such third party offers Employee
substantially comparable health, disability and term life insurance benefits on
at least as favorable terms, (B) the death of the Employee, or (C) December 31,
2003.
The Employee shall notify the Company promptly following his acceptance
of any offer of employment by a third party. The Employee shall be under no
obligation to seek other employment following any Qualifying Termination, and
any amounts he earns in any other employment shall not reduce or offset the
severance payments or other amounts due hereunder except as specifically
provided in this Section 5.2(d).
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5.3 Termination for Death or Disability. In the event the
Employee's employment is terminated by death or because of disability pursuant
to Section 4.3 (a "Section 4.3 Termination"), the Company shall pay or provide
to the estate of the Employee or to the Employee, as the case may be, the
compensation and benefits payable or provided to him under Section 3 through the
last day of his employment by the Company as determined in accordance with
Section 4.3.
5.4 Termination Upon Change in Control of the Company.
(a) In the event the Employee's employment is terminated
pursuant to Section 4.4 or by the Company Without Cause within twelve (12)
months following a Change in Control (as defined below) of the Company, the
Company shall make a one-time lump sum severance payment (the "Change in Control
Severance Payment") to the Employee in an amount equal to the amount of
compensation due to the Employee under this Agreement for the remainder of the
term of this Agreement, if such payment would be greater than the amount
otherwise payable to Employee under Section 5.2(b). In such event, the Employee
shall not be entitled to the payments to which he would otherwise be entitled
pursuant to Section 5.2(b), but shall continue to be entitled to benefits
provided by the Company pursuant to and in accordance with Section 5.2(d).
(b) The Change in Control Severance Payment payable under this
Section 5.4 shall be made without regard to whether the deductibility of such
payment (or any other "parachute payments," as that term is defined in Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), to or for
the Employee's benefit) would be limited or precluded by Section 280G and
without regard to whether such payments (or any other
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"parachute payments" as so defined) would subject the Employee to the federal
excise tax levied on certain "excess parachute payments" under Section 4999 of
the Code.
(c) Tax Adjustment Payments. If all or any portion of the amount
payable to Employee under this Agreement (together with all other payments of
cash or property, whether pursuant to this Agreement or otherwise, including,
without limitation, the issuance of options or shares or the granting, exercise
or termination of options therefor), constitutes "excess parachute payments"
within the meaning of Section 280G of the Code that are subject to the excise
tax imposed by Section 4999 of the Code (or any similar tax or assessment), the
amounts payable hereunder shall be increased to the extent necessary to place
Employee in the same after-tax position as he would have been in had no such tax
assessment been imposed on any such payment paid or payable to Employee under
this Agreement or any other payment that Employee may receive in connection
therewith. The determination of the amount of any such tax or assessment and the
incremental payment required hereby in connection therewith shall be made by the
accounting firm employed by the Company with thirty (30) calendar days after
such payment and said incremental payment shall be made within thirty (30)
business days after determination has been made. If, after the date upon which
the payment required by this Section 5.4(c) has been made, it is determined
(pursuant to final regulations or published rulings of the Internal Revenue
Service, final judgment of a court of competent jurisdiction, Internal Revenue
Service audit assessment, or otherwise) that the amount of excise or other
similar taxes or assessments payable by Employee is greater than the amount
initially so determined, then the Company shall pay Employee an amount equal to
the sum of (i) such additional excise or other taxes, plus (ii) any interest
fines and penalties resulting from such underpayment, plus (iii) an amount
necessary to reimburse Employee for any income, excise or other tax assessment
payable
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by Employee with respect to the amounts specified in (i) and (ii) above, and the
reimbursement provided by this clause (iii), in the manner described above in
this Section 5.4(c). Payment thereof shall be made within ten (10) business days
after the date upon which such subsequent determination is made.
(d) A "Change of Control" of the Company shall occur or be
deemed to have occurred in the event that:
(i) any "person", as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (a
"Person") other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any corporation
owned directly or indirectly by the stockholders of the Company in substantially
the same proportion as their ownership of stock of the Company, acquires
"beneficial ownership" (as defined in Rule 13d-3 under the Exchange Act) of
securities of the Company representing fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities (other than
through an acquisition of securities directly from the Company);
(ii) individuals who, as of the date of this Agreement,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date of this Agreement whose election, or
nomination for election by the Company's stockholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or
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removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (A) a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of
the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no Person acquires more than fifty percent (50%) of the combined voting
power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
5.5 Registration Rights.
(a) In the event Employee is terminated pursuant to the
provisions of Sections 4.2, 4.4, 5.4(a), or Without Cause, Employee shall have
the right to require the Company to register under the Securities Act of 1933,
as amended ("Securities Act") any shares then held by him, either on a Form S-3
or a Form S-1 (or any successor forms thereto), within thirty (30) days from
the date of such termination. The Company shall pay all expenses in connection
with any such offering, except for underwriting discounts and expenses.
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(b) For the three (3) years following his termination for any
reason, the Employee shall have the right to require the Company, once in each
twelve (12)-month period, to register under the Securities Act any shares then
held by him either on a Form S-3 or a Form S-1 (or any successor forms thereto).
The Company shall pay all expenses in connection with any such offering, except
for underwriting discounts and expenses.
6. Non-Compete.
(a) During the Employment Period and for a period of two (2)
years after the termination or expiration thereof, the Employee will not
directly or indirectly:
(i) as an individual proprietor, partner, stockholder,
officer, employee, director, joint venturer, investor, lender, or in any other
capacity whatsoever (other than as the holder of not more than five percent (5%)
of the total outstanding stock of a publicly held company), engage in the
business (the "Restricted Business") of developing, producing, marketing,
selling or performing products or services of the kind or type developed or
being developed, produced, marketed, sold or performed by the Company while the
Employee was employed by the Company (provided that following the expiration or
termination of the Employment Period, (a) the Employee may act as an employee of
or consultant to a person or entity which engages in the Restricted Business so
long as the Employee does not himself engage in or assist the person or entity
in engaging in the Restricted Business by virtue of such employment or
consulting relationship; (b) the Employee may serve as a senior executive in a
corporation or other entity that has a division or subsidiary that reports to
the Employee and that engages in the Restricted Business if the Employee is no
more than nominally involved in the day-to-day operations or business practices
of such division or subsidiary; and (c) the Employee may provide investment
banking and any advisory services to corporations or other entities
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engaged in the Restricted Business relating to financing, mergers, acquisitions
and dispositions); or
(ii) recruit, solicit or induce, or attempt to induce, any
employee or employees of the Company to terminate their employment with, or
otherwise cease their relationship with, the Company; or
(iii) divert or take away, or attempt to divert or to take
away, the business or patronage, of any of the clients, customers or accounts,
or prospective clients, customers or accounts, of the Company which were
contacted, solicited or served by the Employee while employed by the Company.
(b) If any restriction set forth in this Section 6 is found by
any court of competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to which it
may be enforceable.
(c) The restrictions contained in this Section 6 are necessary
for the protection of the business and goodwill of the Company and are
considered by the Employee to be reasonable for such purpose. The Employee
agrees that any breach of this Section 6 will cause the Company substantial and
irreparable damage and therefore, in the event of any such breach, in addition
to such other remedies which may be available, the Company shall have the right
to seek specific performance and injunctive relief.
7. Inventions and Proprietary Information.
7.1 Inventions.
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(a) All inventions, discoveries, computer programs, data,
technology, designs, innovations and improvements (whether or not patentable and
whether or not copyrightable) related to the business of the Company which are
made, conceived, reduced to practice, created, written, designed or developed by
the Employee, solely or jointly with others and whether during normal business
hours or otherwise, during his employment by the Company pursuant to this
Agreement ("Inventions") shall be the sole property of the Company. The Employee
hereby assigns to the Company all such Inventions and any and all related
patents, copyrights, trademarks, trade names, and other industrial and
intellectual property rights and applications therefor, in the United States and
elsewhere and appoints any officer of the Company as his duly authorized
attorney, but without any out-of-pocket expense to the Employee, to execute,
file, prosecute and protect the same before any government agency, court or
authority. The Employee hereby waives all claims to moral rights in any
Invention. Upon the request of the Company and at the Company's expense, the
Employee shall execute such further assignments, documents and other instruments
as may be necessary or desirable to assign fully and completely all such
Inventions to the Company and to assist the Company in applying for, obtaining
and enforcing patents or copyrights or other rights in the United States and in
any foreign country with respect to any such Invention.
(b) The Employee shall promptly disclose to the Company all such
Inventions and will maintain adequate and current written records (in the form
of notes, sketches, drawings and as may be reasonably specified by the Company)
to document the conception and/or first actual reduction to practice of any such
Invention. Such written records shall be available to and remain the sole
property of the Company at all times.
7.2 Proprietary Information.
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(a) The Employee acknowledges that his relationship with the
Company is one of high trust and confidence and that in the course of his
employment by the Company he will have access to and contact with Proprietary
Information. The Employee agrees that he will not, during the Employment Period
or at any time thereafter, disclose to others, or use for his benefit or the
benefit of others, any Proprietary Information or any Invention.
(b) For purposes of this Agreement, Proprietary Information
shall mean all information (whether or not patentable and whether or not
copyrightable) owned, possessed or used by the Company, including, without
limitation, any Invention, formula, formation, vendor information, customer
information, apparatus, equipment, trade secret, process, research, report,
technical data, know-how, computer program, software, software documentation,
hardware design, technology, marketing or business plan, forecast, unpublished
financial statement, budget, license, price, cost and employee list that is
communicated to, learned of, developed or otherwise acquired by the Employee in
the course of his employment by the Company.
(c) The Employee's obligations under this Section 7.2 shall not
apply to any information that (i) is or becomes known to the general public
under circumstances involving no breach by the Employee of the terms of this
Section 7.2, (ii) is generally disclosed to third parties by the Company without
restriction on such third parties, (iii) is approved for release by written
authorization of the Board or an authorized employee of the Company, (iv) is
communicated to the Employee by a third party under no duty of confidentiality
with respect to such information to the Company or another party, or (v) is
required to be disclosed by the Employee to comply with applicable laws,
governmental regulations, court order or subpoena, provided that the Employee
provides prior written notice of such disclosure to the Company and
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an opportunity for the Company to object to such disclosure and further
provided that the Employee cooperates with the Company and takes reasonable and
lawful actions requested by the Company (the out-of-pocket costs of which shall
be paid by the Company) to avoid and/or minimize the extent of such disclosure.
(d) Upon termination of this Agreement or at any other time upon
request by the Company, the Employee shall promptly deliver to the Company all
records, files, memoranda, notes, designs, data, reports, price lists, customer
lists, drawings, plans, computer programs, software, software documentation,
sketches, laboratory and research notebooks and other documents (and all copies
or reproductions of such materials in his possession or control) belonging to
the Company.
(e) The Employee represents that the Employee's employment by
the Company and the performance by the Employee of his obligations under this
Agreement do not, and shall not, breach any agreement that obligates him to keep
in confidence any trade secrets or confidential or proprietary information of
his or of any other party or to refrain from competing, directly or indirectly,
with the business of any other party. The Employee shall not disclose to the
Company, and the Company shall not request that the Employee disclose, any trade
secrets or confidential or proprietary information of any other party.
(f) The Employee acknowledges that the Company from time to time
may have agreements with other persons or with the United States Government, or
agencies thereof, that impose obligations or restrictions on the Company
regarding inventions made during the course of work under such agreements or
regarding the confidential nature of such work. If the Employee's duties
hereunder will require disclosures to be made to him subject to
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such obligations and restrictions, the Employee agrees to be bound by them and
to take all action necessary to discharge the obligations of the Company under
such agreements.
7.3 Remedies. The Employee acknowledges that any breach of the
provisions of this Section 7 shall result in serious and irreparable injury to
the Company for which the Company cannot be adequately compensated by monetary
damages alone. The Employee agrees, therefore, that, in addition to any other
remedy it may have, the Company shall be entitled to seek to enforce the
specific performance of this Agreement by the Employee and to seek both
temporary and permanent injunctive relief (to the extent permitted by law)
without the necessity of proving actual damages.
8. Notices. All notices required or permitted under this Agreement shall
be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 8.
9. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement,
including but not limited to that certain Employment Agreement dated June 9,
1998 by and between Employee and Company.
11. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Employee.
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12. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Maryland.
13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Employee are personal and shall not be assigned by him.
14. Survival. The provisions of Sections 5, 6 and 7 shall survive the
termination of this Agreement.
15. Miscellaneous.
15.1 No delay or omission by either party in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by either party on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
15.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
15.3 In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
OPTICAL TECHNOLOGY GROUP, INC.
By: /s/ F. XXXXXXX XXXXX
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F. Xxxxxxx Xxxxx
Title: Exec. V.P.
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EMPLOYEE
/s/ XXXXXXX X. XXX
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Xxxxxxx X. Xxx
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