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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") by and between Integrated
Electrical Services, Inc., a Delaware corporation ("IES"), and H. Xxxxx Xxxx
("Executive") is hereby entered into effective as of this 20th day of March,
2000 (the "Effective Date").
RECITALS
As of the Effective Date, IES and the subsidiary companies of IES
(collectively, the "IES Companies") are engaged primarily in the providing of
electrical contracting services.
Executive is employed hereunder by IES in a confidential relationship
wherein Executive, in the course of his employment with IES, has and will
continue to become familiar with and aware of information as to IES' customers
and specific manner of doing business, including the processes, techniques and
trade secrets utilized by IES, and future plans with respect thereto, all of
which has been and will be established and maintained at great expense to IES.
This information is a trade secret and constitutes the valuable goodwill of IES.
Therefore, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, it is hereby agreed
as follows:
AGREEMENTS
1. Employment and Duties.
(a) IES hereby employs Executive as Chief Executive Officer
("CEO") of IES. As such, Executive shall have responsibilities, duties
and authority reasonably accorded to, expected of and consistent with
Executive's position as Chief Executive Officer of IES. Executive
hereby accepts this employment upon the terms and conditions herein and
agrees to devote substantially all of his time, attention and efforts
to promote and further the business and interests of IES and its
affiliates.
(b) Executive shall faithfully adhere to, execute and fulfill
all lawful policies established by IES.
(c) Executive shall not, during the term of his employment
hereunder, engage in any other business activity pursued for gain,
profit or other pecuniary advantage if such activity interferes in any
material respect with Executive's duties and responsibilities
hereunder. The foregoing limitations shall not be construed as
prohibiting Executive from making personal investments in such form or
manner as will neither require his services in the operation or affairs
of the companies or enterprises in which such investments are made nor
violate the terms of paragraph 3 hereof.
(d) Executive shall be entitled to vacation in accordance with
the policies of IES.
(e) Upon his employment as CEO, IES will also elect Executive
as a member of the Board of Directors of IES.
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2. Compensation. For all services rendered by Executive, IES shall
compensate Executive as follows:
(a) Base Salary. The base salary payable to Executive during
the term shall be $350,000 per year, payable in accordance with IES'
payroll procedures for officers, but not less frequently than monthly.
Such base salary may be increased from time to time, at the discretion
of the Board of Directors of IES (the "IES Board"), in light of the
Executive's position, responsibilities and performance.
(b) Executive Perquisites, Benefits and Other Compensation.
Executive shall be entitled to receive additional benefits and
compensation from IES in such form and to such extent as specified
below:
(i) Reimbursement for all business travel and other
out-of-pocket expenses (including those costs to maintain any
professional certifications held or obtained by Executive)
reasonably incurred by Executive in the performance of his
duties pursuant to this Agreement and in accordance with IES'
policy for executives of IES. All such expenses shall be
appropriately documented in reasonable detail by Executive
upon submission of any request for reimbursement, and in a
format and manner consistent with IES' expense reporting
policy.
(ii) Executive shall, subject to the satisfaction of
any general eligible criteria, be eligible to participate in
all compensation and benefit plans and programs as are
maintained from time to time for executives of IES.
(iii) Executive shall receive four weeks of paid
vacation per year.
(iv) IES shall provide Executive with such other
perquisites as may be deemed appropriate for Executive by the
IES Board.
(v) On the date of the Agreement, Executive will be
granted an employee stock option to purchase 132,500 shares of
IES Common Stock with an exercise price equal to the closing
price on the New York Stock Exchange of the IES Common Stock
on such day and will vest based on the following schedule:
First day of employment 40%
First anniversary of employment 55%
Second anniversary of employment 70%
Third anniversary of employment 85%
Fourth anniversary of employment 100%
While Executive is the CEO of IES, he will
participate in the IES bi-annual stock option grant program
for its officers subject to the terms of the applicable stock
option plan. The program currently provides that Executive
will receive an option to purchase 32,500 shares of IES common
stock with an exercise price equal to fair market value of the
IES common stock on the date of grant in October 2000, and an
option to purchase 32,500 shares of IES common stock with an
exercise price equal to fair market value of the IES common
stock on the date of grant in April 2001.
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(vi) Provided Executive is CEO of IES on September
30, 2000, IES shall pay Executive a cash payment of $300,000,
minus all applicable withholdings required by law.
Additionally, while Executive is the CEO of IES, he
may receive an incentive payment equal to one-fourth (1/4) of
Executive's total cash compensation earned as set forth in
paragraphs 2(a) and 2(b)(vi) above (i.e., salary paid to
Executive during the fiscal year plus the bonus payment earned
as described in the preceding paragraph) if IES has earned in
excess of $0.75 per fully diluted share for its fiscal year
ended September 30, 2000 (October 1, 1999 to September 30,
2000). The amount of such incentive payment will increase by
5% for each $0.01 in excess of $0.75 (i.e., the amount to be
paid as calculated in the previous sentence will increase by
5% for $0.01 in excess of $0.75 and by a total of 10% for
$0.02 in excess of $0.75). This incentive payment will be paid
one-half in cash and one-half in IES common stock with a fair
market value determined on September 30, 2000. IES anticipates
offering a similar bonus potential related to earnings per
share and the price of the IES common stock on September 30,
2001. IES will determine such targets following September 30,
2000. The actual payout of the bonus payments and incentive
payment are typically made in December of each year.
(vii) Executive will be granted a contingent right to
receive 400,000 shares of IES Common Stock in accordance with
IES standard grants and, assuming Executive is employed by IES
on such dates, such award will vest based on the following
schedule:
First anniversary of employment 25%
Second anniversary of employment 50%
Third anniversary of employment 75%
Fourth anniversary of employment 100%
; provided, if Executive terminates his employment other than
for Good Reason (as hereinafter defined) and such award is not
100% vested, then Executive shall forfeit and return to the
Company 15% of such vested shares.
3. Non-Competition Agreement.
(a) Executive recognizes that IES' willingness to enter into
this Agreement is based in material part on Executive's agreement to
the provisions of this paragraph 3 and that Executive's breach of the
provisions of this paragraph 3 could materially damage IES. Subject to
the further provisions of this Agreement, Executive will not, during
the term of his employment with IES, and for a period of two years
immediately following the termination of such for any reason
whatsoever, either for Cause or in the event the Executive terminates
his employment without Good Reason, except as may be set forth herein,
directly or indirectly, for himself or on behalf of or in conjunction
with any other person, company, partnership, corporation or business of
whatever nature:
(i) engage, as an officer, director, shareholder,
owner, partner, joint venturer, or in a managerial capacity,
whether as an employee, independent contractor, consultant or
advisor, or as a sales representative, in any electrical
contracting business in direct competition with any IES
Company within 100 miles of where any IES Company conducts
business, including any territory
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serviced by an IES Company during the term of Executive's
employment (the "Territory");
(ii) call upon any person who is, at that time, an
employee of an IES Company for the purpose or with the intent
of enticing such employee away from or out of the employ of
the IES Company;
(iii) call upon any person or entity which is, at
that time, or which has been, within one year prior to that
time, a customer of an IES Company within the Territory for
the purpose of soliciting or selling electrical contracting
products or services in direct competition with the IES
Companies within the Territory;
(iv) call upon any prospective acquisition candidate,
on Executive's own behalf or on behalf of any competitor,
which candidate was, to Executive's knowledge after due
inquiry, either called upon by an IES Company or for which an
IES Company made an acquisition analysis, for the purpose of
acquiring such entity; or
(v) disclose customers, whether in existence or
proposed, of IES to any person, firm, partnership, corporation
or business for any reason or purpose whatsoever except to the
extent that IES has in the past disclosed such information to
the public for valid business reasons.
Notwithstanding the above, the foregoing covenant shall not be
deemed to prohibit Executive from acquiring as an investment not more
than 1% of the capital stock of a competing business, whose stock is
traded on a national securities exchange, the Nasdaq Stock Market or on
an over-the-counter or similar market, unless the Board of Directors of
IES consents to such acquisition.
(b) Because of the difficulty of measuring economic losses to
IES as a result of a breach of the foregoing covenant, and because of
the immediate and irreparable damage that could be caused to IES for
which they would have no other adequate remedy, Executive agrees that
foregoing covenant may be enforced by IES, in the event of breach by
him, by injunctions and restraining orders. Executive further agrees to
waive any requirement for IES' securing or posting of any bond in
connection with such remedies.
(c) It is agreed by the parties that the foregoing covenants
in this paragraph 3 impose a reasonable restraint on Executive in light
of the activities and business of the IES Companies on the date of the
execution of this Agreement and the current plans of the IES Companies;
but it is also the intent of IES and Executive that such covenants be
construed and enforced in accordance with the changing activities,
business and locations of the IES Companies throughout the term of this
covenant, whether before or after the date of termination of the
employment of Executive, unless the Executive was conducting such new
business prior to any IES Company conducting such new business. For
example, if, during the term of this Agreement, an IES Company engages
in new and different activities, enters a new business or establishes
new locations for its current activities or business in addition to or
other than the activities or business enumerated under the Recitals
above or the locations currently established therefor, then Executive
will be precluded from soliciting the customers or employees of such
new activities or business or from such new location and from directly
competing with such new business within 100 miles of its
then-established operating location(s) through the term of this
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covenant, unless the Executive was conducting such new business prior
to any IES Company conducting such new business.
(d) It is further agreed by the parties hereto that, in the
event that Executive shall cease to be employed hereunder and shall
enter into a business or pursue other activities not in competition
with the electrical contracting activities of the IES Companies or
similar activities or business in locations the operation of which,
under such circumstances, does not violate clause (a)(i) of this
paragraph 3, and in any event such new business, activities or location
are not in violation of this paragraph 3 or of Executive's obligations
under this paragraph 3, if any, Executive shall not be chargeable with
a violation of this paragraph 3 if the IES Companies shall thereafter
enter the same, similar or a competitive (i) business, (ii) course of
activities or (iii) location, as applicable.
(e) The covenants in this paragraph 3 are severable and
separate, and the unenforceability of any specific covenant shall not
affect the provisions of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth are unreasonable, then it is the
intention of the parties that such restrictions be enforced to the
fullest extent which the court deems reasonable, and the Agreement
shall thereby be reformed.
(f) All of the covenants in this paragraph 3 shall be
construed as an agreement independent of any other provision in this
Agreement, and the existence of any claim or cause of action of
Executive against IES or IES, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by IES or
IES of such covenants. It is specifically agreed that the period of two
years (subject to the further provisions of this Agreement) following
termination of employment stated at the beginning of this paragraph 3,
during which the agreements and covenants of Executive made in this
paragraph 3 shall be effective, shall be computed by excluding from
such computation any time during which Executive is in violation of any
provision of this paragraph 3.
(g) IES and the Executive hereby agree that this covenant is a
material and substantial part of this transaction.
4. Term; Termination; Rights on Termination. The term of this Agreement
shall begin on the Effective Date and continue for three years (the "Initial
Term") and, unless terminated sooner as herein provided, shall continue on a
year-to-year basis on the same terms and conditions contained herein in effect
as of the time of renewal (the "Extended Term"); provided, however, upon a
Change in Control (as defined in paragraph 9(d)) the term of this Agreement
shall automatically continue following such Change in Control for a period equal
to the then remaining term or two years, whichever period is longer, unless
earlier terminated as provided in paragraph 9. This Agreement and Executive's
employment may be terminated in any one of the following ways:
(a) Death. The death of Executive shall immediately terminate
this Agreement with no severance compensation due to Executive's
estate.
(b) Disability. If, as a result of incapacity due to physical
or mental illness or injury, Executive shall have been absent from his
full-time duties hereunder for four consecutive months, then 30 days
after receiving written notice (which notice may occur before or after
the end of such four-month period, but which shall not be effective
earlier
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than the last day of such four-month period), IES may terminate
Executive's employment hereunder, provided that Executive is unable to
resume his full-time duties at the conclusion of such notice period.
Also, Executive may terminate his employment hereunder if his health
should become impaired to an extent that makes the continued
performance of his duties hereunder hazardous to his physical or mental
health, provided that Executive shall have furnished IES with a written
statement from a doctor reasonably acceptable to IES to such effect and
provided, further, that, at IES' request made within 30 days of the
date of such written statement, Executive shall submit to an
examination by a doctor selected by IES who is reasonably acceptable to
Executive or Executive's doctor and such second doctor shall have
concurred in the conclusion of Executive's doctor. In the event this
Agreement is terminated as a result of Executive's disability,
Executive shall receive from IES, in a lump sum payment due within 10
days of the effective date of termination, six months of base salary at
the rate then in effect.
(c) Cause. IES may terminate this Agreement and Executive's
employment 10 days after written notice to Executive for "Cause," which
shall be: (1) Executive's breach of this Agreement; (2) Executive's
gross negligence in the performance or intentional nonperformance of
any of Executive's duties and responsibilities hereunder; (3)
Executive's dishonesty or fraud with respect to the business,
reputation or affairs of IES or IES; (4) Executive's conviction of a
felony crime or crime involving moral turpitude; (5) Executive's drug
or alcohol abuse; or (6) Executive's violation of Company policy (which
remains uncured or continues 5 days after delivery of written notice).
In the event of a termination for Cause, Executive shall have no right
to any severance compensation.
(d) Without Cause. Executive may, without Good Reason (as
hereinafter defined) terminate Executive's employment, effective 30
days after written notice is provided to IES. Executive may be
terminated without Cause by IES during either the Initial Term or
Extended Term. Should Executive be terminated by IES without Cause or
should Executive terminate with Good Reason during the Initial Term,
(i) Executive shall receive from IES, in a lump sum payment due on the
effective date of termination, the base salary at the rate then in
effect for whatever time period is remaining under the Initial Term or
for one year, whichever amount is less and (ii) the contingent stock
grant made to Executive under paragraph 2(b)(vii) shall immediately
vest in full. Further, any termination without Cause by IES or by
Executive for Good Reason shall operate to shorten the period set forth
in paragraph 3(a) and during which the terms of paragraph 3 apply to
one year from the date of termination of employment. If Executive
resigns or otherwise terminates his employment without Good Reason,
rather than IES terminating his employment pursuant to this paragraph
4(d), Executive shall receive no severance compensation.
Executive shall have "Good Reason" to terminate his employment
hereunder upon the occurrence of any of the following events, unless
such event is agreed to in writing by Executive: (a) Executive is
demoted by means of a material reduction in authority, responsibilities
or duties to a position of less stature or importance within IES than
the position described in Section 1 hereof; or (b) Executive's annual
base salary as then in effect is reduced.
If Executive's employment as CEO is terminated for any reason,
Executive agrees to immediately resign as a member of the Board of Directors of
IES.
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5. Return of Company Property. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Executive by or on behalf of IES, IES or any IES
Companies or their representatives, vendors or customers which pertain to the
business of IES or IES or any IES Companies shall be and remain the property of
IES or IES or the IES Company, as the case may be, and be subject at all times
to their discretion and control. Likewise, all correspondence, reports, records,
charts, advertising materials and other similar data pertaining to the business,
activities or future plans of IES or IES or the IES Company which is collected
by Executive shall be delivered promptly to IES without request by it upon
termination of Executive's employment.
6. Inventions. Executive shall disclose promptly to IES any and all
significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
Executive, solely or jointly with another, during the period of employment or
within one year thereafter, if conceived during employment, and which are
directly related to the business or activities of IES and which Executive
conceives as a result of his employment by IES. Executive hereby assigns and
agrees to assign all his interests therein to IES or its nominee. Whenever
requested to do so by IES, Executive shall execute any and all applications,
assignments or other instruments that IES shall deem necessary to apply for and
obtain Letters Patent of the United States or any foreign country or to
otherwise protect IES' interest therein.
7. Trade Secrets. Executive agrees that he will not, during or after
the term of this Agreement, disclose the specific terms of IES' relationships or
agreements with their respective significant vendors or customers or any other
significant and material trade secret of IES or IES, whether in existence or
proposed, to any person, firm, partnership, corporation or business for any
reason or purpose whatsoever.
8. Confidentiality.
(a) Executive acknowledges and agrees that all Confidential
Information (as defined below) of IES is confidential and a valuable,
special and unique asset of IES that gives IES an advantage over its
actual and potential, current and future competitors. Executive further
acknowledges and agrees that Executive owes IES a fiduciary duty to
preserve and protect all Confidential Information from unauthorized
disclosure or unauthorized use, that certain Confidential Information
constitutes "trade secrets" under applicable laws and, that
unauthorized disclosure or unauthorized use of IES' Confidential
Information would irreparably injure IES.
(b) Both during the term of Executive's employment and after
the termination of Executive's employment for any reason (including
wrongful termination), Executive shall hold all Confidential
Information in strict confidence, and shall not use any Confidential
Information except for the benefit of IES, in accordance with the
duties assigned to Executive. Executive shall not, at any time (either
during or after the term of Executive's employment), disclose any
Confidential Information to any person or entity (except other
employees of IES who have a need to know the information in connection
with the performance of their employment duties), or copy, reproduce,
modify, decompile or reverse engineer any Confidential Information, or
remove any Confidential Information from IES' premises, without the
prior written consent of the President of IES, or permit any other
person to do so. Executive shall take reasonable precautions to protect
the physical security of all documents and other material containing
Confidential Information (regardless of the medium on which the
Confidential Information is stored).
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This Agreement applies to all Confidential Information, whether now
known or later to become known to Executive.
(c) Upon the termination of Executive's employment with IES
for any reason, and upon request of IES at any other time, Executive
shall promptly surrender and deliver to IES all documents and other
written material of any nature containing or pertaining to any
Confidential Information and shall not retain any such document or
other material. Within five days of any such request, Executive shall
certify to IES in writing that all such materials have been returned.
(d) As used in this Agreement, the term "Confidential
Information" shall mean any information or material known to or used by
or for IES (whether or not owned or developed by IES and whether or not
developed by Executive) that is not generally known to persons in the
electrical contracting business. Confidential information includes, but
is not limited to, the following: all trade secrets of IES; all
information that IES has marked as confidential or has otherwise
described to Executive (either in writing or orally) as confidential;
all nonpublic information concerning IES' products, services,
prospective products or services, research, product designs, prices,
discounts, costs, marketing plans, marketing techniques, market
studies, test data, customers, customer lists and records, suppliers
and contracts; all Company business records and plans; all Company
personnel files; all financial information of or concerning IES; all
information relating to operating system software, application
software, software and system methodology, hardware platforms,
technical information, inventions, computer programs and listings,
source codes, object codes, copyrights and other intellectual property;
all technical specifications; any proprietary information belonging to
IES; all computer hardware or software manual; all training or
instruction manuals; and all data and all computer system passwords and
user codes.
9. Change in Control.
(a) Executive understands and acknowledges that the Company
may be merged or consolidated with or into another entity and that such
entity shall automatically succeed to the rights and obligations of the
Company hereunder or that the Company may undergo a Change in Control
(as defined below). In the event a Change in Control is initiated or
occurs during the Initial Term or Extended Term, then the provisions of
this paragraph 9 shall be applicable.
(b) In the event of a Change in Control wherein the Company
and Executive have not received written notice at least ten business
days prior to the date of the event giving rise to the Change in
Control from the successor to all or a substantial portion of the
Company's business and/or assets that such successor is willing as of
the closing to assume and agree to perform the Company's obligations
under this Agreement in the same manner and to the same extent that the
Company is hereby required to perform, then Executive may, at
Executive's sole discretion, elect to terminate Executive's employment
on such Change in Control by providing written notice to the Company
prior to the closing of the transaction giving rise to the Change in
Control. In such case, the applicable provisions of paragraph 4(d) will
apply as though the Company had terminated Executive without Cause;
however, the amount of the lump sum severance payment due Executive
shall be double the amount calculated under the terms of paragraph
4(d).
(c) In any Change in Control situation, Executive may, at
Executive's sole discretion, elect to terminate Executive's employment
upon the effective date of such
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Change in Control by providing written notice to the Company at least
five business days prior to the closing of the transaction giving rise
to the Change in Control. In such case, the applicable provisions of
paragraph 4(d) will apply as though the Company had terminated
Executive without Cause; however, the amount of the lump sum severance
payment due Executive shall be double the amount calculated under the
terms of paragraph 4(d).
(d) If, on or within two years following the effective date of
a Change in Control the Company terminates Executive's employment other
than for Cause or Executive terminates his employment for Good Reason,
or if Executive's employment with the Company is terminated by the
Company within three months before the effective date of a Change in
Control and it is reasonably demonstrated that such termination (i) was
at the request of a third party that has taken steps reasonably
calculated to effect a Change in Control, or (ii) otherwise arose in
connection with or anticipation of a Change in Control, then Executive
shall receive from Company, in a lump sum payment due on the effective
date of termination the equivalent of two years' base salary at the
rate then in effect.
(e) A "Change in Control" shall be deemed to have occurred if:
(i) any person, entity or group (as such terms are
used in Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Act"), other than the IES
Companies or an employee benefit plan of the IES Companies,
acquires, directly or indirectly, the beneficial ownership (as
defined in Section 13(d) of the Act) of any voting security of
the Company and immediately after such acquisition such person
is, directly or indirectly, the beneficial owner of voting
securities representing 20% or more of the total voting power
of all of the then outstanding voting securities of the
Company entitled to vote generally in the election of
directors;
(ii) upon the first purchase of the Company's common
stock pursuant to a tender or exchange offer (other than a
tender or exchange offer made by the Company);
(iii) the stockholders of the Company shall approve a
merger, consolidation, recapitalization or reorganization of
the Company, or a reverse stock split of outstanding voting
securities, or consummation of any such transaction if
stockholder approval is not obtained, other than any such
transaction which would result in at least 75% of the total
voting power represented by the voting securities of the
surviving entity outstanding immediately after such
transaction being beneficially owned by the holders of all of
the outstanding voting securities of the Company immediately
prior to the transactions with the voting power of each such
continuing holder relative to other such continuing holders
not substantially altered in the transaction;
(iv) the stockholders of the Company shall approve a
plan of complete liquidation or dissolution of the Company or
an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets; or
(v) if, at any time during any period of two
consecutive years, individuals who at the beginning of such
period constitute the Board cease for any reason to constitute
at least a majority thereof, unless the election or nomination
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for the election by the Company's stockholders of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the
beginning of the period.
(f) Notwithstanding anything in this Agreement to the
contrary, a termination pursuant to paragraph 9(b), (c), or (d) shall
operate to automatically waive in full the noncompetition restrictions
imposed on Executive pursuant to paragraph 3(a).
(g) If it shall be finally determined that any payment made or
benefit provided to Executive in connection with a Change in Control of
the Company, whether or not made or provided pursuant to this
Agreement, is subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended, or any successor thereto,
the Company shall pay Executive an amount of cash (the "Additional
Amount") such that the net amount received by Executive after paying
all applicable taxes on such Additional Amount shall be equal to the
amount that Executive would have received if Section 4999 were not
applicable.
10. No Prior Agreements. Executive hereby represents and warrants to
IES that the execution of this Agreement by Executive and his employment by IES
and the performance of his duties hereunder will not violate or be a breach of
any agreement with a former employer, client or any other person or entity.
Further, Executive agrees to indemnify IES for any claim, including, but not
limited to, reasonable attorneys' fees and expenses of investigation, by any
such third party that such third party may now have or may hereafter come to
have against IES based upon or arising out of any non-competition agreement,
invention or secrecy agreement between Executive and such third party which was
in existence as of the date of this Agreement.
11. Assignment; Binding Effect. Executive understands that he has been
selected for employment by IES on the basis of his personal qualifications,
experience and skills. Executive agrees, therefore, that he cannot assign all or
any portion of his performance under this Agreement. Subject to the preceding
two sentences and the express provisions of paragraph 12 below, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective heirs, legal representatives, successors and
assigns.
12. Release. Notwithstanding anything in this Agreement to the
contrary, Executive shall not be entitled to receive any payments pursuant to
this Agreement unless Executive has executed (and not revoked) a general release
of all claims Executive may have against IES and its affiliates in a form of
such release reasonably acceptable to IES.
13. Complete Agreement. Executive has no oral representations,
understandings or agreements with IES, IES or any of their officers, directors
or representatives covering the same subject matter as this Agreement. This
written Agreement is the final, complete and exclusive statement and expression
of the agreement between IES, IES and Executive and of all the terms of this
Agreement, and it cannot be varied, contradicted or supplemented by evidence of
any prior or contemporaneous oral or written agreements. This written Agreement
may not be later modified, except by a further writing signed by an officer of
IES who must be duly authorized by IES' Board of Directors and Executive, and no
term of this Agreement may be waived except by writing signed by the party
waiving the benefit of such term. Without limiting the generality of the
foregoing, either party's failure to insist on strict compliance with this
Agreement shall not be deemed a waiver thereof.
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14. Notice. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To IES: Law Department
Integrated Electrical Services, Inc.
000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
To Executive: H. Xxxxx Xxxx
0000-X Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Notice shall be deemed given and effective on the earlier of three days after
the deposit in the U.S. mail of a writing addressed as above and sent first
class mail, certified, return receipt requested, or when actually received.
Either party may change the address for notice by notifying the other party of
such change in accordance with this paragraph 13.
15. Severability; Headings. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
16. Dispute Resolutions. Except with respect to injunctive relief as
provided in paragraph 3(b), neither party shall institute a proceeding in any
court or administrative agency to resolve a dispute between the parties before
that party has sought to resolve the dispute through direct negotiation with the
other party. If the dispute is not resolved within two weeks after a demand for
direct negotiation, the parties shall attempt to resolve the dispute through
mediation. If the parties do not promptly agree on a mediator, the parties shall
request the Association of Attorney Mediators in Xxxxxx County, Texas to appoint
a mediator certified by the Supreme Court of Texas. If the mediator is unable to
facilitate a settlement of the dispute within a reasonable period of time, as
determined by the mediator, the mediator shall issue a written statement to the
parties to that effect and any unresolved dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively by
arbitration, conducted before a panel of three arbitrators in Houston, Texas, in
accordance with the rules of the American Arbitration Association then in
effect. A decision by a majority of the arbitration panel shall be final and
binding. Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The costs and expenses, including reasonable attorneys' fees, of
the prevailing party in any dispute arising under this Agreement will be
promptly paid by the other party.
17. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Texas without regard to its conflicts of
law provisions.
18. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective for all purposes as of the Effective Date.
INTEGRATED ELECTRICAL SERVICES, INC.
By: /s/ C. XXXXX XXXXXX
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Name: C. Xxxxx Xxxxxx
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Title: Chairman of the Board of Directors
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EXECUTIVE
/s/ H. XXXXX XXXX
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H. Xxxxx Xxxx
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