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Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT (together with all exhibits hereto, the "Agreement"), made
as of the 10th day of December, 1997, between ESP LOCK PRODUCTS, INC., a
Delaware corporation, having its executive offices and principal place of
business in Leominster, Massachusetts (the "Company") and AUGUST X. XXXXXXX, the
undersigned individual ("Executive").
In consideration of the mutual covenants and agreements hereinafter set
forth, the Company and Executive agree as follows:
1. Agreement Term.
The term of this Agreement shall be the period ("Agreement Term")
commencing on the date hereof (the "Employment Date") and ending on December 31,
2002, unless sooner terminated by either party upon one year's prior written
notice ("Voluntary Termination") or pursuant to the provisions of Section 5 of
this Agreement.
2. Employment.
(a) Employment by the Company. Executive agrees to be employed by
the Company for the Agreement Term upon the terms and subject to the conditions
set forth in this Agreement. Executive shall have the title of President, and
report to the Board of Directors of the Company (the "Board"). Executive shall
have such duties as may be prescribed by the Company and shall serve in such
other and/or additional position(s) as the Company may determine from time to
time. If so requested, and for no additional consideration, Executive will serve
as a member of the Board of the Company or any affiliate.
(b) Performance of Duties. Throughout the Agreement Term, Executive
shall faithfully and diligently perform Executive's duties in conformity with
the directions of the Company and serve the Company to the best of Executive's
ability. Executive shall devote Executive's entire working time, attention and
energies to the business and affairs of the Company, subject to vacations and
sick leave as provided herein and in accordance with Company policy.
(c) Place of Performance. The principal location at which
Executive's services are to be performed is within a fifty (50) mile radius of
Leominster, Massachusetts. The Executive shall not be required to change such
principal location of the performance of his services without his consent,
except in the event that the Company's principal offices are, for good cause,
relocated to another area.
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3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive for
employment hereunder a base salary ("Base Salary") at the annual rate of
$165,000, based on the calendar year. Executive shall be eligible for an annual
increase to the Base Salary on each anniversary of the Employment Date during
the Agreement Term, which increase shall be equal to the percentage increase of
the Consumer Price Index (the "CPI") over the preceding year calculated by
comparing the CPI for the month of September immediately preceding the
anniversary of the Employment Date to the CPI for the prior September. As used
in this Agreement the term "Consumer Price Index" shall mean the Consumer Price
Index for All Urban Consumers (1982-84 = 100) specified for "All Items" issued
by the Bureau of Labor Statistics of the U.S. Department of Labor or the
successor thereto. The Base Salary shall be payable in installments consistent
with the Company's payroll practices then in effect.
(b) Bonus. Executive shall be eligible for bonuses, at such times
and in such amounts as shall be determined at the discretion of the Board.
Executive shall be guaranteed a bonus of $340,000 for the year ending December
31, 1997.
(c) Benefits and Perquisites. Executive shall be entitled to
participate in, to the extent Executive is otherwise eligible under the terms
thereof, the benefit plans and programs, including medical and vacation plans,
and receive the benefits and perquisites, generally provided to employees of the
same level and responsibility as Executive. Nothing in this Agreement shall
preclude the Company from terminating or amending from time to time any employee
benefit plan or program.
(d) Travel and Business Expenses. Upon submission of itemized
expense statements in the manner specified by the Company, Executive shall be
entitled to reimbursement for reasonable travel and other reasonable business
expenses duly incurred by Executive in the performance of Executive's duties
under this Agreement in accordance with the policies and procedures established
by the Company from time to time for employees of the same level and
responsibility as Executive.
(e) Car Allowance. The Company will provide to Executive an
automobile allowance in the amount of $550 per month. The Company shall pay
certain expenses relating to the automobile including insurance, maintenance,
repairs and automobile excise taxes. The Company shall not be responsible for
gasoline expenses.
(f) No Other Compensation or Benefits; Payment. The compensation and
benefits specified in Sections 3 and 5 of this Agreement shall be in lieu of any
and all other compensation and benefits. Payment of all compensation and
benefits to Executive hereunder shall be made in accordance with the relevant
Company policies in effect from time to time, including normal payroll
practices, and shall be subject to all applicable employment and withholding
taxes.
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(g) Cessation of Employment. In the event Executive shall cease to
be employed by the Company for any reason, then Executive's compensation and
benefits shall cease on the date of such event, except as otherwise provided
herein or in any applicable employee benefit plan or program.
4. Exclusive Employment; Noncompetition.
(a) No Conflict; No Other Employment. During the period of
Executive's employment with the Company, Executive shall not: (i) engage in any
activity which conflicts or interferes with or derogates from the performance
of Executive's duties hereunder nor shall Executive engage in any other business
activity, whether or not such business activity is pursued for gain or profit,
except as approved in advance in writing by the Board, except for Executive's
investment in a soccer facility, which Executive may pursue without Board
approval; or (ii) accept any other full-time or substantially full-time
employment, whether as an executive or consultant or in any other capacity, and
whether or not compensated therefor.
(b) No Competition. Executive, pursuant to a Stock Purchase
Agreement dated as of November ___, 1997 (the "Purchase Agreement"), has agreed
to sell, together with the other Sellers, as defined in the Purchase Agreement,
all of the outstanding capital stock of the Company. To induce the purchasers of
such capital stock, who shall be third party beneficiaries hereof, to enter into
the Purchase Agreement, and without limiting the generality of the provisions of
Sections 2(b) or 4(a), during the Agreement Term, Executive shall not, directly
or indirectly, own, manage, operate, join, control, participate in, invest in or
otherwise be connected or associated with, in any manner, including as an
officer, director, employee, partner, stockholder, joint venturer, lender,
consultant, advisor, agent, proprietor, trustee or investor, any Competing
Business located in the United States or in any other location where the Company
operates or sells its products or services. In addition, in the event that
Executive's employment hereunder is terminated during the Agreement Term for
Cause (as hereinafter defined) or by reason of Voluntary Termination, Executive
shall not compete with the Company, as specified in this Section 4(b), for a
period from the date of termination until two years after the end of the
Agreement Term. In the event that Executive's employment hereunder is terminated
during the Agreement Term without Cause, Executive shall not compete with the
Company, as specified in this Section 4(b), for a period from the date of
termination until one year after the end of the Agreement Term (such termination
without Cause shall not relieve the Company of its obligation to pay to
Executive the Base Salary through the end of the Agreement Term);
(i) As used in this Agreement, the term "Competing Business"
shall mean any business or venture which engages in any business area or
sells or provides products or services that compete or overlap with any
business area in which the Company engages or contemplates engaging, or
the products or services sold or provided, or contemplated to be sold or
provided, by the Company.
(ii) For purposes of this Section 4(b), the term "invest"
shall not preclude an investment in not more than one percent (1%) of the
outstanding capital stock of a
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corporation whose capital stock is listed on a national securities
exchange or included in the NASDAQ Stock Market, so long as Executive does
not have the power to control or direct the management of, or is not
otherwise associated with, such corporation.
(c) No Solicitation of Employment. During the period from the date
hereof until one year after the end of the Agreement Term, Executive will not,
directly or indirectly, employ or solicit the employment or engagement by others
of any employee of the Company who was such an employee at the time of or within
six (6) months prior to the date of any such proposed employment or
solicitation.
(d) Company Customers. Executive shall not, during the Agreement
Term, and for a period of five years thereafter, directly or indirectly,
contact, solicit or do business with any "customers" (as hereinafter defined) of
the Company for the purpose of selling or providing any product or service then
sold or provided by the Company to such customers or proposed to be sold or
provided to such customers during Executive's employment by the Company or at
the time of termination of Executive's employment hereunder.
For the purposes of the provisions of this Section 4(d), "customer"
shall include any entity that purchased any product or service from the Company
within eight months of the termination of Executive's employment hereunder,
without regard to the reason for such termination. The term "customer" also
includes any former customer or potential customer of the Company which the
Company has solicited within eight months of such termination, for the purpose
of selling or providing any product or service then sold or provided, or then
contemplated to be sold or provided, by the Company.
(e) Modification of Covenants. The restrictions against competition
set forth in this Section 4 are considered by the parties to be reasonable for
the purposes of protecting the business of the Company. However, if any such
restriction 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.
5. Termination of Employment.
(a) Termination. The Company may terminate Executive's employment
for Cause or for any breach of this Agreement, in which case the provisions of
Section 5(b) shall apply. The Company may also terminate Executive's employment
in the event of Executive's Disability (as hereinafter defined), in which case
the provisions of Section 5(c) shall apply. If Executive's employment is
terminated by reason of Executive's death, retirement or Voluntary Termination,
the provisions of Section 5(b) shall apply.
(b) Termination for Cause; Termination by Reason of Death or
Retirement or Voluntary Termination. (1) In the event that Executive's
employment hereunder is terminated during
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the Agreement Term (x) by the Company for Cause (as hereinafter defined), (y) by
reason of Executive's death or retirement or (z) by reason of Voluntary
Termination, then the Company shall pay to Executive, within thirty (30) days of
the date of such termination, only the Base Salary through such date of
termination.
(2) For purposes of this Agreement, "Cause" shall mean (i)
conviction of any crime (whether or not involving the Company) constituting a
felony in the jurisdiction involved; (ii) engaging in any act which subjects, or
if generally known would subject, the Company to public ridicule or
embarrassment; (iii) gross neglect or misconduct in the performance of
Executive's duties hereunder; (iv) willful or repeated failure or refusal to
perform such duties as may be relegated to Executive commensurate with
Executive's position; or (v) breach of any provision of this Agreement by
Executive.
(3) In the event the Company desires to terminate Executive's
employment for Cause as defined in clauses (iv), (v) or (vi) of the definition
thereof, the Company shall first attempt to resolve the matter(s) at issue
through a meeting between Executive and the President of Key Components, Inc. If
such meeting fails to resolve the matter(s), then Executive and the President of
Key Components, Inc. will meet with the Board and attempt to resolve the
matter(s). The decision of the Board as to the matter(s) shall be final and
binding on the parties and not subject to review or appeal by any other person.
(c) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been absent from Executive's
duties hereunder on a full time basis for either (i) ninety (90) days within any
six-month period, or (ii) sixty (60) consecutive days, and within thirty (30)
days after written notice of termination is given shall not have returned to the
performance of Executive's duties hereunder on a full time basis, the Company
may terminate Executive's employment hereunder for "Disability". In that event,
the Company shall pay to Executive, within thirty (30) days of the date of such
termination, only the Base Salary through such date of termination. During any
period that Executive fails to perform Executive's duties hereunder as a result
of incapacity due to physical or mental illness (a "Disability Period"),
Executive shall continue to receive the compensation and benefits provided by
Section 3 hereof until Executive's employment hereunder is terminated; provided,
however, that the amount of compensation and benefits received by Executive
during the Disability Period shall be reduced by the aggregate amounts, if any,
payable to Executive under disability benefit plans and programs of the Company
or under the Social Security disability insurance program.
(d) No Further Liability; Release. Payment made and performance by
the Company in accordance with this Section 5 shall operate to fully discharge
and release the Company and its directors, officers, employees, subsidiaries,
affiliates, stockholders, successors, assigns, agents and representatives from
any further obligation or liability with respect to Executive's employment and
termination of employment. Other than paying Executive's Base Salary through the
date of termination of Executive's employment and making any severance payment
and continuing benefits and perquisites pursuant to and in accordance with this
Section 5 (as applicable), the Company and
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its directors, officers, employees, subsidiaries, affiliates, stockholders,
successors, assigns, agents and representatives shall have no further obligation
or liability to Executive or any other person under this Agreement.
6. Confidential Information.
(a) Existence of Confidential Information. The Company owns and has
developed and compiled, and will develop and compile, certain proprietary
technology, know-how and confidential information which have great value to its
business (referred to in this Agreement, collectively, as "Confidential
Information"). Confidential Information includes not only information disclosed
by the Company to Executive, but also information developed or learned by
Executive during the course or as a result of employment with the Company, which
information shall be the property of the Company. Confidential Information
includes all information that has or could have commercial value or other
utility in the business in which the Company is engaged or contemplates
engaging, and all information of which the unauthorized disclosure could be
detrimental to the interests of the Company, whether or not such information is
specifically labeled as Confidential Information by the Company. By way of
example and without limitation, Confidential Information includes any and all
information developed, obtained, licensed by or to or owned by the Company
concerning trade secrets, techniques, know-how (including research data,
designs, plans, procedures, merchandising, marketing, distribution and
warehousing know-how, processes, and research records), software, computer
programs, and any other intellectual property created, used or sold (through a
license or otherwise) by the Company, product know-how and processes,
innovations, discoveries, improvements, research, development, test results,
reports, specifications, data, formats, marketing data and plans, business
plans, strategies, forecasts, unpublished financial information, orders,
agreements and other forms of documents, price and cost information,
merchandising opportunities, expansion plans, budgets, projections, customer,
supplier, licensee, licensor and subcontractor identities, characteristics,
agreements and operating procedures, and salary, staffing and employment
information.
(b) Protection of Confidential Information. Executive acknowledges
and agrees that in the performance of duties hereunder Executive develops and
acquires, and the Company discloses to and entrusts Executive with, Confidential
Information which is the exclusive property of the Company and which Executive
may possess or use only in the performance of duties for the Company. Executive
also acknowledges that Executive is aware that the unauthorized disclosure of
Confidential Information, among other things, may be prejudicial to the
Company's interests, an invasion of privacy and an improper disclosure of trade
secrets. Executive shall not, directly of indirectly, use, make available, sell,
disclose or otherwise communicate to any corporation, partnership, individual or
other third party, other than in the course of Executive's assigned duties and
for the benefit of the Company, any Confidential Information, either during the
Agreement Term or thereafter. In the event Executive desires to publish the
results of Executive's work for or experiences with the Company through
literature, interviews or speeches, Executive will submit requests for such
interviews or such literature or speeches to the Board at least fourteen (14)
days before any anticipated dissemination of such information for a
determination of whether such
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disclosure is in the best interests of the Company, including whether such
disclosure may impair trade secret status or constitute an invasion of privacy.
Executive agrees not to publish, disclose or otherwise disseminate such
information without the prior written approval of the Board.
(c) Delivery of Records, Etc. In the event Executive's employment
with the Company ceases for any reason, Executive will not remove from the
Company's premises without its prior written consent any records, notes,
notebooks, files, drawings, documents, equipment, materials and writings
received from, created for or belonging to the Company, including those which
relate to or contain Confidential Information, or any copies thereof. Upon
request or when employment with the Company terminates, Executive will
immediately deliver the same to the Company.
7. Invention and Patents.
(a) Executive will promptly and fully disclose to the Company any
and all inventions, discoveries, trade secrets and improvements, whether or not
patentable or whether or not they are made, conceived or reduced to practice
during working hours or using the Company's data or facilities, which Executive
shall develop, make, conceive or reduce to practice during Executive's
employment by the Company, either solely or jointly with others (collectively,
"Developments"). All such Developments shall be the sole property of the
Company, and Executive hereby assigns to the Company, without further
compensation, all his right, title and interest in and to such Developments and
any and all related patents, patent applications, copyrights, copyright
applications, trademarks and trade names in the United States and elsewhere.
(b) Executive shall keep and maintain adequate and current written
records of all Developments (in the form of notes, sketches, drawings and as may
be specified by the Company), which records shall be available to and remain the
sole property of the Company at all times.
(c) Executive shall assist the Company in obtaining and enforcing
patent, copyright and other forms of legal protection for the Developments in
any country. Upon request, Executive shall sign all applications, assignments,
instruments and papers and perform all acts necessary or desired by the Company
and to enable the Company its successors, assigns and nominees, to secure and
enjoy the full exclusive benefits and advantages thereof.
(d) Executive understands that Executive's obligations under this
section will continue after the termination of his employment with the Company
and that during his employment Executive shall perform such obligations without
further compensation, except for reimbursement of expenses incurred at the
request of the Company. Executive further understands that if he is not employed
by the Company as an employee at the time he is requested to perform any
obligations under this section, Executive shall receive for such performance a
reasonable per diem fee, as well as reimbursement of any expenses incurred at
the request of the Company.
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8. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of and be
enforceable by, and may be assigned by the Company to, any purchaser of all or
substantially all of the Company's business or assets, any successor to the
Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise). The Company will require any such
purchaser, successor or assignee to expressly 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 purchase, succession or assignment had taken
place.
(b) Executive. Executive's rights and obligations under this
Agreement shall not be transferable by Executive by assignment or otherwise, and
any purported assignment, transfer or delegation thereof shall be void;
provided, however, that if Executive shall die, all amounts then payable to
Executive hereunder shall be paid in accordance with the terms of this Agreement
to Executive's devisee, legatee or other designee or, if there be no such
designee, to Executive's estate.
9. Miscellaneous.
(a) Other Obligations. Executive represents and warrants that he is
not a party to any other employment agreement and that neither Executive's
employment with the Company nor Executive's performance of Executive's
obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other agreements to which Executive is or has been a party
or with any other obligations, legal or otherwise, which Executive may have.
(b) Nondisclosure; Other Employers. Executive will not disclose to
the Company, or use, or induce the Company to use, any proprietary information,
trade secrets or confidential business information of others. Executive
represents and warrants that Executive has returned all property, proprietary
information, trade secrets and confidential business information belonging to
all prior employers.
(c) Cooperation. Following termination of employment with the
Company, Executive shall cooperate with the Company, as requested by the
Company, to affect a transition of Executive's responsibilities and to ensure
that the Company is aware of all matters being handled by Executive.
(d) Protection of Reputation. During the Agreement Term and
thereafter, Executive agrees that he will take no action which is intended, or
could reasonably be expected, to harm the Company or its reputation or which
could reasonably be expected to lead to unwanted or unfavorable publicity to the
Company.
(e) Governing Law. This Agreement, including the validity,
interpretation, construction and performance of this Agreement, shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts applicable to agreements made and to be
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performed in such state without regard to such states conflicts of law
principles. All actions and proceedings relating directly or indirectly to this
Agreement shall be litigated in any state court or federal court located in New
York, New York. The parties hereto expressly consent to the jurisdiction of any
such court and to venue therein and consent to the service of process in any
such action or proceeding by certified or registered mailing of the summons and
complaint therein directed to Executive at the address as provided in Section
9(l) hereof and to the Company's designated agent for service of process (which
agent may be changed by the Company upon thirty (30) days' prior written notice
to Executive).
(f) Entire Agreement. This Agreement (including the Exhibits hereto)
contains the entire agreement and understanding between the parties hereto in
respect of the subject matter hereof and supersedes, cancels and annuls any
prior or contemporaneous written or oral agreements, understandings, commitments
and practices between them respecting the subject matter hereof, including all
prior employment agreements, if any, between the Company and Executive, which
agreement(s) hereby are terminated and shall be of no further force or effect.
(g) Amendment. This Agreement may be amended only by a writing which
makes express reference to this Agreement as the subject of such amendment and
which is signed by Executive and, on behalf of the Company, by its duly
authorized officer.
(h) Severability. If any term, provision, covenant or condition of
this Agreement or part thereof, or the application thereof to any person, place
or circumstance, shall be held to be invalid, unenforceable or void, the
remainder of this Agreement and such term, provision, covenant or condition
shall remain in full force and effect, and any such invalid, unenforceable or
void term, provision, covenant or condition shall be deemed, without further
action on the part of the parties hereto, modified, amended and limited to the
extent necessary to render the same and the remainder of this Agreement valid,
enforceable and lawful. In this regard, Executive acknowledges that the
provisions of Sections 4 and 6 are reasonable and necessary for the protection
of the Company.
(i) Construction. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing
or interpreting this Agreement. The language in all parts of this Agreement
shall be in all cases construed according to its fair meaning and not strictly
for or against the Company or Executive. The use herein of the word "including,"
when following any general provision, sentence, clause, statement, term or
matter, shall be deemed to mean "including, without limitation". As used herein,
"Company" shall mean the Company and its subsidiaries and any purchaser of,
successor to or assignee (whether direct or indirect, by purchase, merger,
consolidation or otherwise) of all or substantially all of the Company's
business or assets which is obligated to perform this Agreement by operation of
law, agreement pursuant to Section 7 hereof or otherwise. As used herein, the
words "day" or "days" shall mean a calendar day or days.
(j) Nonwaiver. Neither any course of dealing nor any failure or
neglect of either party hereto in any instance to exercise any right, power or
privilege hereunder or under law shall
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constitute a waiver of any other right, power or privilege or of the same right,
power or privilege in any other instance. All waivers by either party hereto
must be contained in a written instrument signed by the party to be charged and,
in the case of the Company, by its duly authorized officer.
(k) Remedies for Breach. The parties hereto agree that Executive is
obligated under this Agreement to render personal services during the Agreement
Term of a special, unique, unusual, extraordinary and intellectual character,
thereby giving this Agreement peculiar value, and, in the event of a breach or
threatened breach of any covenant of Executive herein, the injury or imminent
injury to the value and the goodwill of the Company's business could not be
reasonably or adequately compensated in damages in an action at law.
Accordingly, Executive expressly acknowledges that the Company shall be entitled
to specific performance, injunctive relief or any other equitable remedy against
Executive, without the posting of a bond, in the event of any breach or
threatened breach of any provision of this Agreement by Executive (including
Sections 4 and 6 hereof). Without limiting the generality of the foregoing, if
Executive breaches Sections 4 or 6 hereof, such breach will entitle the Company
to enjoin Executive from disclosing any Confidential Information to any
Competing Business, to enjoin such Competing Business from receiving Executive
or using any such Confidential Information and/or to enjoin Executive from
rendering personal services to or in connection with such Competing Business.
The rights and remedies of the parties hereto are cumulative and shall not be
exclusive, and each such party shall be entitled to pursue all legal and
equitable rights and remedies and to secure performance of the obligations and
duties of the other under this Agreement, and the enforcement of one or more of
such rights and remedies by a party shall in no way preclude such party from
pursuing, at the same time or subsequently, any and all other rights and
remedies available to it.
(l) Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law shall be
sufficient if in writing, and if and when sent by certified or registered mail,
return receipt requested, with postage prepaid, to Executive's residence (as
reflected in the Company's records or as otherwise designated by Executive on
thirty (30) days' prior written notice to the Company) or to the Company's
principal executive office, attention: Chief Executive Officer (with copies to
the General Counsel), as the case may be. All such notices, requests, consents
and approvals shall be effective upon being deposited in the United States mail.
However, the time period in which a response thereto must be given shall
commence to run from the date of receipt on the return receipt of the notice,
request, consent or approval by the addressee thereof. Rejection or other
refusal to accept, or the inability to deliver because of changed address of
which no notice was given as provided herein, shall be deemed to be receipt of
the notice, request, consent or approval sent.
(m) Assistance in Proceedings, Etc. Executive shall, without
additional compensation, during and after expiration of the Agreement Term, upon
reasonable notice, furnish such information and proper assistance to the Company
as may reasonably be required by the Company in connection with any legal or
quasi-legal proceeding, including any external or internal investigation,
involving the Company or any of its affiliates or in which any of them is, or
may become, a party.
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(n) Survival. Cessation or termination of Executive's employment
with the Company shall not result in termination of this Agreement. The
respective obligations of Executive and rights and benefits afforded to the
Company as provided in this Agreement shall survive cessation or termination of
Executive's employment hereunder. This Agreement shall not terminate upon, and
shall remain in full force and effect following, expiration of the Agreement
Term and all rights and obligations of the parties hereto as and to the extent
provided herein shall survive such expiration.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed on its behalf by an officer thereunto duly authorized and Executive has
duly executed this Agreement, all as of the date and year first written above.
ESP LOCK PRODUCTS, INC.
By: /s/ Xxxx X. Xxxxxx
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Name:
Title:
/s/ August X. Xxxxxxx
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August X. Xxxxxxx
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