EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") effective as of January 1, 2001
(the "Effective Date"), by and between TERAFORCE TECHNOLOGY CORPORATION, a
Delaware corporation whose principal executive offices are in Richardson, Texas
("Company"), and R. XXXXXX XXXXX ("Executive").
R E C I T A L S
Company recognizes that Executive has made significant contributions to
the development and progress of the Company, and that Executive has certain
knowledge and business contacts in the Company's business.
Company desires to continue Executive's employment and to obtain the
benefit of Executive's contacts and knowledge in the business as well as his
contacts, valuable judgment, extensive experience, good counsel and advice.
In order to acknowledge Executive for his contributions to the progress
of the Company and to induce Executive to continue his employment with the
Company, the Company has agreed to provide Executive certain compensation and
management arrangements as set forth in this Agreement.
The Board of Directors of the Company has determined that it is in the
best interests of the Company to retain the Executive's services and to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including the Executive, to their assigned duties without
distraction in potentially disturbing circumstances arising from the possibility
of a change in control of the Company or the assertion of claims and actions
against employees.
The Company desires to assure itself of the services of the Executive
for the period provided in this Agreement and the Executive desires to serve in
the employ of the Company on the terms and conditions hereinafter provided.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
ARTICLE I
EMPLOYMENT
1.1 Employment. The Company hereby employs the Executive and the
Executive hereby accepts employment by the Company for the period and upon the
terms and conditions contained in this Agreement.
1.2 Office and Duties.
(a) Position. The Executive shall serve the Company as
Executive Vice President and Corporate Development Officer with
authority, duties and responsibilities not less than the Executive has
on the date of this Agreement.
(b) Commitment. Throughout the term of this Agreement, the
Executive shall devote substantially all of his time, energy, skill and
best efforts to the performance of his duties hereunder in a manner
that will faithfully and diligently further the business and interests
of the Company. Subject to the foregoing, the Executive may serve, or
continue to serve, on the boards of directors of, and hold any other
offices or positions in, companies or organizations that will not
materially affect the performance of the Executive's duties pursuant to
this Agreement and that are disclosed to and approved by the Board of
Directors.
1.3 Term. The term of this Agreement shall commence on the Effective
Date and shall end on the third anniversary of the Effective Date ("Initial
Term"), and shall be automatically renewed thereafter for successive 1 year
terms (each a "Renewal Term") unless either party gives to the other written
notice of termination no fewer than 90 days prior to the expiration of the
Initial Term or any Renewal Term that it does not desire to extend this
Agreement (the Initial Term and any Renewal Term(s) shall be collectively
referred to herein as the "Term").
1.4 Compensation. The Company shall pay the Executive as compensation
an aggregate salary ("Base Salary") of $225,000 per year during the Term, or
such greater amount as shall be approved by the Company's Board of Directors.
The Base Salary for each year shall be paid by the Company in accordance with
the regular payroll practices of the Company.
The Board of Directors shall review the Executive's Base Salary at
least annually and shall take into account changes in the Consumer Price Index
for All Urban Consumers published by the Bureau of Labor Statistics (or if such
index is not available, such other index which the Trustee determines is a
reasonable measure of inflation) based on changes since 2000.
-2-
1.5 Employment Benefits and Expense Reimbursement.
(a) Employment Benefits. In addition to the compensation to be
paid by the Company to Executive pursuant to Section 1.4 hereof, during
the Term of this Agreement, Executive shall also be entitled to receive
the following benefits: (i) participation in a comprehensive group
medical and dental insurance plan of the Company and other benefit
programs of the Company as set forth in Exhibit A and the Company's
401(k) Plan; (ii) paid holidays given by the Company to all of its
employees; and (iii) paid vacation days as determined by the Company
from time to time for its senior executives officers, but not less than
three weeks per year.
(b) Life Insurance. During the Term of this Agreement, the
Company agrees to maintain, at the Company's expense, a life insurance
policy on the life of Executive, provided Executive is then insurable,
in a face amount of one and one-half times the Executive's Base Salary
for the benefit of such beneficiary or beneficiaries as may be
designated by the Executive.
(c) Payment and Reimbursement of Expenses. During the Term,
the Company shall pay or reimburse the Executive for all reasonable
travel and other expenses incurred by the Executive in performing his
obligations under this Agreement in accordance with the policies and
procedures of the Company for its senior executive officers, provided
that the Executive properly accounts therefor in accordance with the
regular policies of the Company.
1.6 Termination.
(a) Disability. The Company may terminate this Agreement for
Disability. "Disability" shall exist if because of ill health, physical
or mental disability, or any other reason beyond his control, and
notwithstanding reasonable accommodations made by the Company, the
Executive shall have been unable, unwilling or shall have failed to
perform his duties under this Agreement, as determined in good faith by
the Company's Board of Directors, for a period of 180 consecutive days,
or if, in any 12-month period, the Executive shall have been unable or
unwilling or shall have failed to perform his duties for a period of
270 days, irrespective of whether or not such days are consecutive.
(b) Cause. The Company may terminate the Executive's
employment for Cause. Termination for "Cause" shall mean termination
because of the Executive's (i) willful gross misconduct that causes
material economic harm to the Company or that brings substantial
discredit to the Company's reputation, (ii) final, nonappealable
conviction of a felony involving moral turpitude, or (iii) material
breach of any provision of this Agreement. Item (iii) of this
subsection shall not constitute Cause unless the Company notifies the
Executive thereof, in writing, specifying in reasonable detail the
basis therefor and stating that it is grounds for Cause, and unless the
Executive fails to cure such matter within 60 days after such notice is
sent or given under this Agreement. The Executive shall be permitted to
-3-
respond and to defend himself before the Board of Directors or any
appropriate committee thereof within a reasonable time after written
notification of any proposed termination for Cause under item (i) or
(iii) of this subsection.
(c) Without Cause. During the Term, the Company may terminate
the Executive's employment Without Cause, subject to the provisions of
subsection 1.7(d) (Termination Without Cause or for Good Reason).
Termination "Without Cause" shall mean termination of the Executive's
employment by the Company other than termination for Cause or for
Disability.
(d) Termination by Executive. The Executive may terminate his
employment hereunder for Good Reason. For purposes of this Agreement,
the termination of Executive's employment hereunder by Executive
because of the occurrence of one or more of the following events shall
be deemed to have occurred for "Good Reason":
(i) any material breach of this Agreement by the
Company; provided, however, that a material breach of this
Agreement by the Company shall not constitute Good Reason
unless the Executive notifies the Company in writing of the
breach, specifying in reasonable detail the nature of the
breach and stating that such breach is grounds for Good
Reason, and unless the Company fails to cure such breach
within 60 days after such notice is sent or given under this
Agreement;
(ii) a relocation of the Company's principal
executive offices to any county other than Dallas County or
Collin County, Texas; provided, however, that no relocation
shall constitute Good Reason unless the Executive advises the
Board of Directors, in writing and prior to the relocation, of
the Executive's objection to such relocation;
(iii) a material change in the nature or scope of
Executive's authorities, powers, functions, duties or
responsibilities that the Executive has on the date of this
Agreement and that is reasonably determined by Executive in
good faith to be adverse to Executive; or
(iv) any reduction in Executive's Base Salary or any
other failure by the Company to comply with Sections 1.4 or
1.5 hereof that is not consented to or approved by Executive.
(e) Change in Control. If, within 12 months of a Change in
Control, either (i) the Executive's employment is terminated by the
Company Without Cause, or (ii) the Executive terminates his employment
for Good Reason, then the provisions of subsection 1.7(e) (Termination
Upon a Change in Control) shall apply. For purposes of this Agreement,
"Change in Control" shall mean any of the following:
-4-
(i) any consolidation or merger of TERAFORCE
TECHNOLOGY CORPORATION, a Delaware corporation ("TERA") in
which Tera is not the continuing or surviving corporation or
pursuant to which shares of Tera's common stock would be
converted into cash, securities or other property, other than
a merger of Tera in which the holders of Tera's common stock
immediately prior to the merger, own more than 50% of the
combined voting power of the merged or consolidated company's
then outstanding voting securities entitled to vote generally
in the election of directors;
(ii) any approval by the stockholders of the Company
of any plan or proposal for the liquidation or dissolution of
the Company;
(iii) the acquisition of beneficial ownership (within
the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of an aggregate of 50% or more of the voting
power of Tera's outstanding voting securities by any person or
group (as such term is used in Rule 13d-5 under such Act);
provided, however, that notwithstanding the foregoing, an
acquisition shall not constitute a Change in Control hereunder
if the acquiror is (w) the Executive, (x) a trustee or other
fiduciary holding securities under an employee benefit plan of
Tera and acting in such capacity, (y) a corporation owned,
directly or indirectly, by the stockholders of Tera in
substantially the same proportions as their ownership of
voting securities of Tera or (z) any other person whose
acquisition of shares of voting securities is approved in
advance by a majority of the Continuing Directors;
(iv) subject to applicable law, in a Chapter 11
bankruptcy proceeding, the appointment of a trustee or the
conversion of a case involving the Company to a case under
Chapter 7.
(f) Without Good Reason. During the Term, the Executive may
terminate his employment Without Good Reason. Termination "Without Good
Reason" shall mean termination of the Executive's employment by the
Executive other than termination for Good Reason.
(g) Explanation of Termination of Employment. Any party
terminating this Agreement shall give prompt written notice ("Notice of
Termination") to the other party hereto advising such other party of
the termination of this Agreement. Within 30 days after notification
that the Agreement has been terminated, the terminating party shall
deliver to the other party hereto a written explanation (the
"Explanation of Termination of Employment"), which shall state in
reasonable detail the basis for such termination and shall indicate
whether termination is being made for Cause, Without Cause or for
Disability (if the Company has terminated the Agreement) or for Good
Reason, upon a Change in Control, or Without Good Reason (if the
Executive has terminated the Agreement).
-5-
(h) Date of Termination. "Date of Termination" shall mean the
date on which Notice of Termination is sent or given under this
Agreement.
1.7 Compensation During Disability or Upon Termination.
(a) During Disability. During any period that the Executive
fails to perform his duties hereunder because of ill health, physical
or mental disability, or any other reason beyond his control, he shall
continue to receive his full compensation and benefits pursuant to
Sections 1.4 (Compensation) and 1.5 (Employment Benefits) until the
Date of Termination.
(b) Termination for Disability. If the Company shall terminate
the Executive's employment for Disability, the Company's obligation to
pay compensation and benefits pursuant to Sections 1.4 (Compensation)
and 1.5 (Employment Benefits) shall terminate, except that the Company
shall pay the Executive (i) accrued but unpaid compensation and
benefits pursuant to Sections 1.4 (Compensation) and 1.5 (Employment
Benefits) through the Date of Termination.
(c) Termination for Cause or Without Good Reason. If the
Company shall terminate the Executive's employment for Cause or if the
Executive shall terminate his employment Without Good Reason, then the
Company's obligation to pay compensation and benefits pursuant to
Sections 1.4 (Compensation) and 1.5 (Employment Benefits) shall
terminate, except that the Company shall pay the Executive his accrued
but unpaid compensation and benefits pursuant to Sections 1.4
(Compensation) and 1.5 (Employment Benefits) through the Date of
Termination.
(d) Termination Without Cause or for Good Reason. If the
Company shall terminate the Executive's employment Without Cause or if
the Executive shall terminate his employment for Good Reason, then the
Company shall pay to the Executive as severance pay, either in
accordance with the provisions of Section 1.4 (Compensation) or in a
lump sum within 15 days following the Date of Termination (at the
Company's option), in cash, the Executive's Base Salary the greater of
(i) two (2) years following the Date of Termination or (ii) the balance
of the Term.
(e) Termination Upon a Change in Control. If, within twelve
(12) months of a Change of Control pursuant to subsection 1.6(e)
(Change in Control), either (i) the Executive's employment is
terminated by the Company Without Cause, or (ii) if the Executive
terminates his employment for Good Reason, then the Company shall pay
to the Executive as severance pay and as liquidated damages (because
actual damages are difficult to ascertain), in accordance with the
provisions of Section 1.4 (Compensation) or in a lump sum within 15
days following the Date of Termination (at the Company's option), in
cash, an amount equal to $100 less than three times the Executive's
"annualized includable compensation for the base period" (as defined in
Section 280G of the Internal Revenue Code of 1986). Anything in this
Agreement to the contrary notwithstanding and except as set forth
-6-
below, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive
(whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, including, but not limited
to, accelerated vesting or payment of any deferred compensation,
options, stock appreciation rights or any benefits payable to the
Executive under any plan for the benefit of employees, but determined
without regard to any additional payments required under this Section
(a "Payment")) would be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled
to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, the Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(f) Employee Benefits. Unless the Company terminates the
Executive's employment for Cause or the Executive terminates his
employment Without Good Reason, the Company shall maintain in full
force and effect (to the extent consistent with past practice) for the
continued benefit of the Executive and, if applicable, his wife and
children, the employee benefits that he was entitled to receive
immediately prior to the Date of Termination (subject to the general
terms and conditions of the plans and programs under which he receives
such benefits) for the balance of the applicable period set forth in
subsections 1.7(d) (Termination Without Cause or for Good Reason) or
1.7(e) (Termination Upon a Change in Control), as applicable, or for
the period provided for under the terms and conditions of such plans
and programs, whichever is longer, provided that his continued
participation or, if applicable, the participation of his wife and
children, is possible under the general terms and conditions of such
plans and programs.
(g) No Mitigation. The Executive shall not be required to
mitigate the amount of any payment provided for in this Section 1.7
(Compensation During Disability or Upon Termination) by seeking other
employment or otherwise.
(h) Reduction in Compensation. If the Executive terminates his
employment for Good Reason or upon a Change in Control based upon a
reduction by the Company of the Executive's Base Salary, then for
purposes of subsections 1.7(d) (Termination Without Cause or for Good
Reason) and 1.7(e) (Termination Upon a Change in Control), the
Executive's Base Salary as of the Date of Termination shall be deemed
to be the Executive's Base Salary immediately prior to the reduction
that the Executive claims as grounds for Good Reason.
1.8 Death of Executive. If the Executive dies prior to the expiration
of this Agreement, the Executive's employment and other obligations under this
Agreement shall automatically terminate and all compensation to which the
Executive is or would have been entitled hereunder
-7-
(including without limitation under subsections 1.5(a) (Base Salary)), shall
terminate as of the end of the month in which the Executive's death occurs;
provided, however, that (i) for the balance of the Term then in effect, the
Executive's wife and children shall be entitled to receive their benefits under
Subsection 1.5(a) (Employment Benefits); (ii) the Executive's beneficiary or
beneficiaries shall receive the benefits payable pursuant to subsection 1.5(b)
(Life Insurance) and (iii) the Executive's named beneficiary or beneficiaries
shall receive such reimbursement as may have been due to the Executive pursuant
to subsection 1.5(c) (Payment and Reimbursement of Expenses) hereof.
ARTICLE 2
CONFIDENTIALITY AND NON-DISCLOSURE
2.1. (a) Description of Proscribed Actions. During the Term
and for a period of two (2) years thereafter, in consideration for the
Company's obligations hereunder, including without limitation the
Company's disclosure of Confidential Information (pursuant to
Subsection 2.2(a) (Confidential Information and Subsection 2.2(b)
(Obligation of The Company) below) and the Company's agreement to
indemnify the Executive (pursuant to Article 3 (Indemnification)
hereof), the Executive shall comply with the following Restrictions:
(i) Confidentiality. The Executive
acknowledges, understands and agrees that all
Confidential Information, whether developed by the
Company or others or whether developed by the
Executive while carrying out the terms and provisions
of this Agreement (or previously while serving as an
officer of the Company), shall be the exclusive and
confidential property of the Company and (i) shall
not disclose to any person other than employees of
the Company and professionals engaged on behalf of
the Company, and other than disclosure in the scope
of the Company's business in accordance with the
Company's policies for disclosing information, (ii)
shall be safeguarded and kept from unintentional
disclosure and (iii) shall not be used for the
Executive's personal benefit. Subject to the terms of
the preceding sentence, the Executive shall not use,
copy or transfer Confidential Information other than
as is necessary in carrying out his duties under this
Agreement.
(ii) Non-Solicitation. The Executive will
not solicit with respect to hiring any employee of
the Company or any Affiliate thereof.
(b) Judicial Modification. The Executive agrees that if a
court of competent jurisdiction determines that the length of time or
any other restriction, or portion thereof, set forth in this Section
2.1 is overly restrictive and unenforceable, the court may reduce or
modify such restrictions to those which it deems reasonable and
enforceable under the circumstances, and as so reduced or modified, the
parties hereto agree that the restrictions of this Section 2.1 shall
remain in full force and effect. The Executive further agrees that if a
court of competent jurisdiction determines that any provision of this
Section 2.1 is invalid or
-8-
against public policy, the remaining provisions of this Section 2.1 and
the remainder of this Agreement shall not be affected thereby, and
shall remain in full force and effect.
(c) Nature of Restrictions. The Executive acknowledges that
the business of the Company and its Affiliates is international in
scope and that the Restrictions imposed by this Agreement are
legitimate, reasonable and necessary to protect the Company's and its
Affiliates' investment in their businesses and the goodwill thereof.
(d) Affiliate. When used with reference to the Company,
"Affiliate" shall mean any person or entity that directly or indirectly
through one or more intermediaries controls or is controlled by or is
under common control with the Company, including but not limited to
such person or entity that is no longer under the common control of the
Company but was at one time controlled by the Company.
2.2 (a) Confidential Information. For the purposes of this
Section 2.2 (Confidential Information), the term "the Company" shall be
construed also to include any and all Affiliates of the Company.
"Confidential Information" shall mean information that is used in the
Company's business and
(i) is proprietary to, about or created by the Company;
(ii) gives the Company some competitive advantage, the
opportunity of obtaining such advantage or the disclosure of which
could be detrimental to the interests of the Company;
(iii) is not typically disclosed to non-employees by the
Company, or otherwise is treated as confidential by the Company; or
(iv) is designated as Confidential Information by the Company
or from all the relevant circumstances should reasonably be assumed by
the Executive to be confidential to the Company.
Confidential Information shall not include information publicly known
(other than as a result of a disclosure by the Executive). The phrase
"publicly known" shall mean readily accessible to the public in a
written publication and shall not include information that is only
available by a substantial searching of the published literature or
information the substance of which must be pieced together from a
number of different publications and sources, or by focused searches of
literature guided by Confidential Information.
(b) Obligation of The Company. During the Term, the Company
shall provide access to, or furnish to, the Executive Confidential
Information of the Company necessary to enable the Executive properly
to perform his obligations under this Agreement.
-9-
2.3 Injunctive Relief. Because of the Executive's experience and
reputation in the industries in which the Company operates, and because of the
unique nature of the Confidential Information, the Executive acknowledges,
understands and agrees that the Company will suffer immediate and irreparable
harm if the Executive fails to comply with any of his obligations under Article
2 (Confidentiality and Non-Disclosure) of this Agreement, and that monetary
damages will be inadequate to compensate the Company for such breach.
Accordingly, the Executive agrees that the Company shall, in addition to any
other remedies available to it at law or in equity, be entitled to injunctive
relief to enforce the terms of Article 2 (Confidentiality and Non-Disclosure),
without the necessity of proving inadequacy of legal remedies or irreparable
harm.
ARTICLE 3
INDEMNIFICATION
Company shall, upon Executive's demand and to the fullest extent
permitted by law, indemnify and hold Executive harmless from and against any and
all losses, damages, liabilities, expenses (including reasonable legal fees and
expenses), judgments, fines, settlements and other amounts arising from any and
all claims, costs, demands, actions, suits or proceedings, civil, criminal,
administrative or investigative, in which Executive may become involved, or
threatened to be involved, as a party or otherwise by reason of the Executive's
status as a director, officer, employee or other agent of Company, or as a
director, officer, employee or agent of a business concern in which the Company
has an investment, and of employees benefit plans and other entities, and
regardless if brought by a third party or by a shareholder of Company or by or
on behalf of Company if (A) (i) Executive acted in good faith and in a manner
Executive reasonably believed to be in, or not opposed to, the best interests of
Company, and with respect to any criminal proceeding, had no reasonable cause to
believe his conduct was unlawful, and (ii) Executive's conduct did not
constitute willful or wanton misconduct or (B) Executive has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in this Article III, or in defense of any claim, issue or matter herein.
The termination of a proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendre, or its equivalent, shall not, of
itself, create a presumption that Executive did not act in good faith and in a
manner that Executive reasonably believed to be in, or not opposed to, the best
interests of Company or a presumption that Executive had reasonable cause to
believe that Executive's conduct was unlawful.
Except as provided herein, expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by Company in advance of the
final disposition of such proceedings on the receipt of an undertaking by or on
behalf of the Executive to repay such amount in the event it shall ultimately be
determined that the Executive is not entitled to be indemnified by Company as
authorized in this Article III.
Promptly after receipt by the Executive of notice of the commencement
of any such action, suit or proceeding, the Executive shall notify Company in
writing of the commencement thereof. In
-10-
case such action shall be brought against the Executive and the Executive shall
notify Company of the commencement thereof, Company shall be entitled to
participate and, to the extent that it shall wish, to assume the defense thereof
and after notice from Company to the Executive of its election so to assume the
defense thereof, Company shall not be liable to the Executive under this
Agreement for any legal expenses subsequently incurred by the Executive in
connection with the defense thereof; provided, that, if Company and the
Executive are advised by counsel selected by the Executive that there may be one
or more legal defenses available to the Executive which are different from or
additional to those available to Company, and, if the Executive notifies Company
in writing that he elects to employ separate counsel at the expense of the
Company, Company shall not have the right to assume the defense of such actions
or proceeding on behalf of the Executive. Company shall not be liable for any
settlement by the Executive of any actions, suit or proceeding effected without
its written consent.
Notwithstanding the foregoing, Company shall indemnify and advance
expenses to the Executive to an extent greater than that provided herein if
Company is required or permitted to do so pursuant to Texas law.
The indemnification provided by this Article III shall be in addition
to any other rights which Executives may be entitled under any Bylaw or
provision of the Articles of Incorporation of Company, any agreement or any vote
of the shareholders of Company, as a matter of law or otherwise, both as to
actions in the Executive's capacity as a director, officer, employee or agent of
Company, or other specified enterprise and to actions in another capacity. This
indemnification shall continue as to the Executive even though he may have
ceased to serve in such capacity and even though the Term of this Agreement has
expired or has been terminated, and shall inure to the benefit of the heirs,
executors, successors, assigns and administrators of the Executive.
THE FOREGOING INDEMNIFICATION SPECIFICALLY INCLUDES THOSE
CLAIMS THAT ARISE OUT OF THE INDEMNIFIED PARTY'S SOLE, JOINT OR
CONTRIBUTORY NEGLIGENCE, BUT SPECIFICALLY EXCLUDES THOSE CLAIMS THAT
ARISE OUT OF THE INDEMNIFIED PARTY'S WILLFUL MISCONDUCT. THE
INDEMNIFIED PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT IF NOT FOR
THIS INDEMNIFICATION.
ARTICLE 4
MISCELLANEOUS
4.1 Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or on behalf of the Company or any
affiliate of the Company against the Executive, the Executive's spouse, heirs,
executors or personal or legal representatives after the expiration of two years
from the date of accrual of such cause of action, and any claim or cause of
action of the Company or any affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such two-year
period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall
govern.
-11-
4.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
4.3 Indulgences, Etc. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege, nor shall any
waiver of any right, remedy, power, or privilege with respect to any occurrence
be construed as a waiver of such right, remedy, power or privilege with respect
to any other occurrence.
4.4 Notices. All notices, requests, demands and other communications
required or permitted under this Agreement and the transactions contemplated
herein shall be in writing and shall be deemed to have been duly given, made and
received when sent by telecopy (with a copy sent by mail) or when personally
delivered or one business day after it is sent by overnight service, addressed
as set forth below:
If to the Executive: __________________________
__________________________
__________________________
If to the Company: Xxxxxx Xxxxx, Assistant Secretary
TeraForce Technology Corporation
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this subsection for the giving of notice, which shall be effective only upon
receipt.
4.5 Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
4.6 Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained, which shall be deemed terminated effective immediately. The express
terms hereof control and supersede any course of performance and/or usage of the
trade
-12-
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
4.7 Headings; Index. The headings of paragraphs are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
4.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without giving effect to
principles of conflict of laws.
4.9 Dispute Resolution. Any dispute, controversy or claim arising out
of or in relation to or connection to this Agreement, including without
limitation any dispute as to the construction, validity, interpretation,
enforceability or breach of this Agreement, shall be exclusively and finally
settled by arbitration, and any party may submit such dispute, controversy or
claim to arbitration (Dispute Resolution).
(a) Arbitrators. The arbitration shall be heard and determined
by one arbitrator, who shall be impartial and who shall be selected by
mutual agreement of the parties; provided, however, that if the dispute
involves more than $2,000,000, then the arbitration shall be heard and
determined by three (3) arbitrators. If three (3) arbitrators are
necessary as provided above, then (i) each side shall appoint an
arbitrator of its choice within thirty (30) days of the submission of a
notice of arbitration and (ii) the party-appointed arbitrators shall in
turn appoint a presiding arbitrator of the tribunal within thirty (30)
days following the appointment of the last party-appointed arbitrator.
If (x) the parties cannot agree on the sole arbitrator, (y) one party
refuses to appoint its party-appointed arbitrator within said thirty
(30) day period or (z) the party-appointed arbitrators cannot reach
agreement on a presiding arbitrator of the tribunal, then the
appointing authority for the implementation of such procedure shall be
the Senior United States District Judge for the Northern District of
Texas, who shall appoint an independent arbitrator who does not have
any financial interest in the dispute, controversy or claim. If the
Senior United States District Judge for the Northern District of Texas
refuses or fails to act as the appointing authority within ninety (90)
days after being requested to do so, then the appointing authority
shall be the Chief Executive Officer of the American Arbitration
Association, who shall appoint an independent arbitrator who does not
have any financial interest in the dispute, controversy or claim. All
decisions and awards by the arbitration tribunal shall be made by
majority vote.
(b) Proceedings. Unless otherwise expressly agreed in writing
by the parties to the arbitration proceedings:
(i) The arbitration proceedings shall be held in
Dallas, Texas, at a site chosen by mutual agreement of the
parties, or if the parties cannot reach agreement on a
location within thirty (30) days of the appointment of the
last arbitrator, then at a site chosen by the arbitrators;
-13-
(ii) The arbitrators shall be and remain at all times
wholly independent and impartial;
(iii) The arbitration proceedings shall be conducted
in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, as amended from time to
time;
(iv) Any procedural issues not determined under the
arbitral rules selected pursuant to item (iii) above shall be
determined by the law of the place of arbitration, other than
those laws which would refer the matter to another
jurisdiction;
(v) The costs of the arbitration proceedings
(including attorneys' fees and costs) shall be borne in the
manner determined by the arbitrators;
(vi) The decision of the arbitrators shall be reduced
to writing; final and binding without the right of appeal; the
sole and exclusive remedy regarding any claims, counterclaims,
issues or accounting presented to the arbitrators; made and
promptly paid in United States dollars free of any deduction
or offset; and any costs or fees incident to enforcing the
award shall, to the maximum extent permitted by law, be
charged against the party resisting such enforcement;
(vii) The award shall include interest from the date
of any breach or violation of this Agreement, as determined by
the arbitral award, and from the date of the award until paid
in full, at 7% per annum; and
(viii) Judgment upon the award may be entered in any
court having jurisdiction over the person or the assets of the
party owing the judgment or application may be made to such
court for a judicial acceptance of the award and an order of
enforcement, as the case may be.
4.10 Survival. The covenants and agreements of the parties set forth in
Article 4 (Miscellaneous) are of a continuing nature and shall survive the
expiration, termination or cancellation of this Agreement, regardless of the
reason therefor.
4.11 Binding Effect, Etc. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business or assets of the Company, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business or assets of the
Company, by written agreement in form and substance satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle the Executive to terminate his employment and
this
-14-
Agreement for Good Reason except for purposes of implementing this termination,
the effective date of such succession shall be deemed the date of termination.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officer thereunto duly authorized, and Executive has signed this
Agreement, all as of the day and year first above written.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx, Chairman and CEO
/s/ R. Xxxxxx Xxxxx
-------------------------------------------
R. Xxxxxx Xxxxx
-15-
