EXHIBIT 10.19
Execution Copy
EMPLOYMENT AGREEMENT
Richard D. Smith
THIS EMPLOYMENT AGREEMENT, dated and effective as of August 13, 1998, is
between Hathaway Corporation, a Colorado corporation (the "Company"), and
Richard D. Smith ("Employee").
RECITALS:
The Employee has acknowledged skills and experience in the business
conducted by the Company and the Company desires to obtain the benefit of the
Employee's knowledge, skills and experience and assure itself of the ongoing
right to Employee's services from and after the date hereof, and is willing to
do so on the terms and conditions set forth in this Agreement. Employee is
willing and able to render services to the Company, from and after the date
hereof, on the terms and conditions set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, the Company and Employee agree as follows:
1. Employment.
1.1 Title and Duties of Employee. The Company hereby employs
Employee as President and Chief Executive Officer of the Company, and
Employee hereby accepts such employment with the Company.
(a) Powers and Duties. Employee shall have the powers and duties
normally incident to the offices he holds as provided in the bylaws of the
Company and such other duties as shall be determined from time to time by
the Company's Board of Directors (the "Board") consistent with Employee's
qualifications and the best interests of the Company. Employee shall report
only to the Board, and Employee's powers and authorities shall be superior
to those of any other officer or employee of the Company or of any
subsidiary thereof.
(b) Contract Rights. Failure of the Board to elect Employee as
President and Chief Executive Officer, or action by the Board to remove
Employee from such offices, shall be without prejudice to the contract
rights in this Agreement.
(c) Service on the Board. So long as Employee is willing to
serve on the Board and has not been terminated for cause, the Board shall
nominate Employee for election to the Board. Failure to elect to, or
removal from, the position of director or President and Chief Executive
Officer or termination of this Agreement for any reason shall not
constitute resignation from the Board or termination of Employee's service
on the Board and termination of employment as President and Chief Executive
Officer shall not include termination as a director.
1.2 Performance. Throughout the period of Employee's employment
hereunder, Employee shall devote Employee's full business time, attention,
knowledge and skills, faithfully, diligently, and to the best of Employee's
ability, to the active performance of Employee's duties and
responsibilities hereunder; provided, however, Employee may serve as a
director of other corporations and entities and may engage in other
activities to the extent they do not inhibit the performance of Employee's
duties hereunder, or conflict with the business of the Company. Employee
shall do such traveling as reasonably may be required in connection with
the performance of such duties and responsibilities. Employee shall not be
required to relocate Employee's residence and Employee may conduct work out
of his residence from time to time as he determines appropriate.
2. Term of Employment. Unless terminated as provided in Section 4
hereof, the term of this Agreement shall extend to August 31, 2003 (the "Initial
Period"), and thereafter shall automatically continue on a year to year basis
(each a "Subsequent Period") unless the Company or Employee shall give the other
party notice at least 60 days prior to the termination of the Initial Period or
any Subsequent Period of its or his election not to renew the term of
employment, in which case this Agreement shall terminate at the end of the
period in which the notice is given; provided, however, the Company's obligation
to pay compensation pursuant to Section 3 or perform any other acts with respect
to the last year for which this Agreement is effective shall continue and be
enforceable notwithstanding the termination of this Agreement.
3. Compensation and Benefits.
3.1 Base Salary. As compensation for services to be rendered by
Employee hereunder, the Company shall pay to Employee an annual salary of
not less than $180,000 per year, payable in periodic installments (but in
no event less frequently than monthly) in accordance with the standard
payroll practices of the Company in effect from time to time. Employee's
salary shall be reviewed annually for increase (but not decrease) on a
merit basis. Such review shall be conducted at the first meeting of the
Board after the end of a fiscal year but not later than August 31 of each
year and the effective date of any such increase shall be August 16. So
long as the Company's power, process and systems automation business
remains the same in all material respects as it is on the date of this
Agreement, Employee's annual salary in effect from time to time shall not
be decreased. In the event the Company makes a disposition of the power,
process and systems automation business so that it is no longer a part of
the Company, but the motion control business remains a part of the Company
and Employee remains as President and Chief Executive Officer of the
Company, the amount of Employee's annual salary may be renegotiated.
Thereafter annual reviews shall continue as above provided. The Employee's
annual salary in effect from year to year is herein referred to as the
"Base Salary".
3.2 Annual Bonus.
(a) Performance Criteria. The Company shall pay to Employee an
Annual Bonus with respect to each fiscal year in amounts determined as
provided by the Board based on achieving performance criteria established
at the beginning of each fiscal year. Such performance criteria will
recognize the overall financial performance of the Company and the
improvements made in financial results.
(b) Time of Payment. The first payment of the Annual Bonus to
Employee pursuant to Section 3.2(a) shall be with respect to the fiscal
year ended June 30, 1999. An Annual Bonus provided herein shall be paid
with respect to each fiscal year thereafter during the term of this
Agreement. All Annual Bonuses payable under Section 3.2(a) shall be paid
in cash immediately following the first Board meeting held after the end of
the applicable fiscal year at which the Annual Bonus calculation is
approved by the Board.
3.3 Certain Dispositions.
(a) Bonus. A separate cash bonus shall be paid to employee with
respect to a Disposition of (i) Hathaway Systems Corporation, Hathaway
Process Instrumentation Corporation, and Hathaway Industrial Automation,
Inc., or any of their respective product lines (herein referred to as
"Power/Process/Systems") and (ii) Hathaway Motion Control Corporation or
any of its subsidiaries or product lines (herein referred to together as
"Motion Control"). The term "Disposition" shall include a sale of stock or
assets or other transfer for value of an equity interest in the designated
entity for which the Company recognizes a gain for financial reporting
purposes. The bonus payable shall be an amount in dollars equal to a
percentage of the cumulative sales price received (excluding purchased
cash) on
Dispositions that are consummated on or before March 31, 2000 in accordance
with the following schedules.
Sale of Power/Process/Systems
----------------------------------------------------------
Cumulative Sales Percentage of Cumulative Sales
Price Received Price Received Payable as a Bonus
---------------------- ---------------------------------
Below $9,000,000 0%
$9,000,000 1.0% plus
Next $ 2,000,000 2.0% of amount over $ 9,000,000 plus
Next $ 2,000,000 3.0% of amount over $11,000,000 plus
Next $ 2,000,000 4.0% of amount over $13,000,000 plus
All Additional Amounts 5.0% of amount over $15,000,000
Sale of Motion Control
----------------------------------------------------------
Cumulative Sales Percentage of Cumulative Sales
Price Received Price Received Payable as a Bonus
---------------------- ---------------------------------
Below $7,000,000 0%
$7,000,000 1.0% plus
Next $ 2,000,000 2.0% of amount over $ 7,000,000 plus
Next $ 2,000,000 3.0% of amount over $9,000,000 plus
Next $ 2,000,000 4.0% of amount over $11,000,000 plus
All Additional Amounts 5.0% of amount over $13,000,000
A Disposition will be consummated for the purpose of this section if a
definitive purchase agreement has been executed on or before March 31, 2000
and any such transaction is subsequently closed.
(b) Time of Payment. A bonus is earned under this Section 3.3 if
Employee was in the employ of the Company in the capacities described in
Section 1.1 at the time a definitive contract for a transaction described
was executed. Any bonus payable pursuant to this Section 3.3 shall be paid
in cash within 30 days after closing the transaction without regard to
whether employment may have been terminated prior to payment.
3.4 Long-Term Incentive Payment Plan. On or before the first Board
meeting held in a current fiscal year, the Board shall consider whether to
grant options to purchase the Company's Common Stock ("Stock Options") to
Employee, including the terms and provisions of any Stock Options.
Payments provided under this Section 3.4 are referred to herein as "Long-
Term Incentive Payout." In making its determination the Board shall
consider, among other things, the Employee's responsibilities and efforts
and performance under this Agreement in relation to the business plan and
forecast, the relationship between the benefits of Stock Options and
improving shareholder value, the development of the Company's products and
the performance of the Company's products in the marketplace, impact of the
Company's products and product development on future prospects for the
Company, and an increase in the trading price per share of the Company's
Common Stock. The Board shall also consider customary business practices
and Long-Term Incentive Payment Plan benefits granted to Employee in
comparison to such benefits provided to other executives in positions
similar to the Employee.
3.5 Expenses. The Company promptly shall reimburse Employee, upon
presentation of appropriate receipts and vouchers, for any reasonable
business expenses incurred by Employee in connection with the performance
of his duties and responsibilities hereunder.
3.6 Vacation. Throughout the period of Employee's employment
hereunder, Employee shall be entitled to take, from time to time, 4 weeks
of vacation annually with pay at such times as shall be mutually convenient
to Employee and the Company.
3.7 Benefits and Perquisites.
(a) Participation. The Company shall make available to Employee,
throughout the period of employment hereunder, such benefits and
perquisites as are generally provided by the Company to its employees.
Without limiting the foregoing, Employee shall be eligible to participate
in any bonus plan, stock option plan, stock purchase plan, pension plan and
group life, health and accident insurance plans as the Company shall
continue to provide or which may hereafter be adopted by the Company for
the benefit of its employees generally. The Company shall provide and pay
the premium on long term disability insurance for Employee. The Company
shall not make any changes in such plans or arrangements which would
adversely affect the Employee's rights or benefits thereunder, unless such
changes occur pursuant to a program applicable to all employees of the
Company and do not result in a proportionately greater reduction in the
rights of, or benefits to, the Employee as compared with any other employee
of the Company.
(b) Office Space. The Company shall provide office space and
secretarial services at the Company's offices suitable to Employee's
position.
(c) Life Insurance. The Company shall provide whole life
insurance on the life of Employee with death benefits of $500,000 with all
premiums paid by the Company. Employee may designate the beneficiary or
beneficiaries of such policy.
(d) Automobile. The Company shall provide a new automobile no
less frequently than every 3 years for Employee's sole use and the Company
shall pay all costs of operating and maintaining or repairing such
automobile. At or before the time of replacement Employee shall have the
right to purchase, at its depreciated cost to the Company, the automobile
previously provided.
(e) Benefit Plans. The Company will make non-qualified
contributions for Employee's benefit under the Company's IRS (S) 401(k)
plan on the same basis as it makes contributions for other employees.
(f) Retirement Plan Benefits. The Company will provide to
Employee retirement plan benefits under any plan on the same basis it
provides benefits to other employees.
4. Termination. This Agreement may be terminated by the Company or
Employee as provided in this Section 4.
4.1 Cause.
(a) Definition. This Agreement may be terminated at any time at
the option of the Company for Cause (as such term is hereinafter defined),
effective as provided in Section 4.9. As used herein, the term "Cause"
shall mean and be limited to: (i) conviction of an offense, with all
appeal rights exhausted, constituting a felony under Colorado law and
resulting or intending to result in Employee's gain or personal enrichment
at the expense of the Company, (ii) the willful violation of the terms of
this Agreement, (iii) gross negligence by Employee in connection with the
performance of Employee's duties, responsibilities, agreements and
covenants hereunder, which violation or negligence shall continue
uncorrected for a period of 45 days after receipt by Employee of a Notice
of Termination; or (iv) excessive use (following at least one written
warning) of alcohol or any illegal use of narcotics. For purposes of this
Section, no act or failure to act on the Employee's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the
best interest of the Company. Notwithstanding the foregoing, the Employee
shall not be deemed to have been terminated for Cause without Notice of
Termination to the Employee setting forth (i) the reasons for the Company's
intention to terminate for Cause, (ii) an opportunity on reasonable notice
for the Employee, together with counsel, to be heard before the Board,
(iii) the specific termination provision in this Agreement relied upon, and
(iv) in reasonable detail the facts and circumstances claimed to provide a
basis for termination under the provisions so indicated.
(b) Salary; Benefits; Bonuses. Upon termination for Cause, the
Company shall (i) continue the Base Salary through the Date of Termination,
(ii) pay all fringe benefits through the end of the calendar month in which
termination occurs, (iii) pay an Annual Bonus pursuant to Section 3.2 and
Long-Term Incentive Payout pursuant to Section 3.4 treating the effective
Date of Termination as being the last day of the fiscal year in which
termination under this Section 4 occurs, and (iv) pay the separate bonus
pursuant to Section 3.3 as earned prior to the effective Date of
Termination.
4.2 Retirement. Termination of employment based on "Retirement"
shall mean termination in accordance with any retirement arrangement
established with Employee's consent, including settlement for the Annual
Bonus pursuant to section 3.2, the separate bonus payable upon a
Disposition pursuant to Section 3.3 and Long-Term Incentive Payout pursuant
to Section 3.4.
4.3 Death of Employee. This Agreement shall terminate upon the
death of Employee; provided, however, the Company shall (i) continue
Employee's Base Salary through the month in which death occurs and for the
following three months and (ii) shall make payments as provided in Section
4.5 in place of (x) Annual Bonus payments provided in Section 3.2 and (y)
the Long-Term Incentive Payout pursuant to Section 3.4.
4.4 Disability of Employee.
(a) Termination; Definition. In the event Employee becomes
mentally or physically disabled during the term of employment hereunder,
this Agreement shall terminate as of the date such disability is
established. As used in this Section, the term "Disabled" or "Disability"
means suffering from any mental or physical condition, other than use of
alcohol or illegal use of narcotics, which renders Employee unable to
perform substantially all of Employee's duties and services under this
Agreement in a satisfactory manner for a period of six consecutive months.
If, by reason of Disability, Employee is absent from the full time
performance of his duties with the Company for six consecutive months,
Notice of Termination may be given and if Employee has not returned to the
full time performance of his duties within 30 days thereafter Employee's
Disability shall be deemed "established" at the end of such 30 day period.
(b) Salary; Benefits. During any period that Employee fails to
perform his full time duties with the Company because he is Disabled,
Employee shall continue to receive Base Salary until this Agreement is
terminated pursuant to Section 4.8 at the rate in effect at the
commencement of any such period adjusted for any compensation payable to
him under any Company paid disability plan during such period. In the
event of termination for Disability the Company shall continue (i)
Employee's Base Salary adjusted for any compensation payable to him under
any Company paid disability plan during such period and (ii) the same
coverage under medical, dental, long-term disability and life insurance for
the greater of (x) the remaining term of this Agreement or (y) until long
term disability insurance coverage becomes effective.
(c) Bonuses. In the event of termination upon established
Disability the Company shall make payments as provided in Section 4.5 in
place of (i) the Annual Bonus payment provided in Section 3.2 and (ii) the
Long-Term Incentive Payout pursuant to Section 3.4.
4.5 Death and Disability of Employee. In the event of termination
upon death the Company shall make payments to Employee's personal
representative, and in the event of termination for Disability the Company
shall make payments to Employee, as hereinafter provided. Such payments
shall be made immediately following the first meeting of the Board held
after the end of the fiscal year in which death or Disability occurred, but
in no event later than August 31 of such year.
(a) Annual Bonus. With respect to the Annual Bonus payment
provided in Section 3.2(a) the Company shall make a separate determination
of the Annual Bonus based on the factors provided in Section 3.2(a) for the
fiscal year in which death or Disability occurs.
(b) Long Term Incentive Plan. With respect to the Long-Term
Incentive Payout provided in Section 3.4 the Company shall make a separate
determination of the Long-Term Incentive Payout based on the factors
provided in Section 3.4 for the fiscal year in which death or Disability
occurs.
4.6 Other than for Cause. If Employee's employment shall be
terminated by the Company other than for Cause, Retirement or Disability,
prior to a change in control of the Company or potential change in control
of the Company as defined in the Severance Agreement referred to in Section
4.7, then Employee shall be entitled to the payments provided below:
(a) Base Salary. On the effective Date of Termination the
Company shall pay Employee his full Base Salary through the end of the
month in which termination occurs at the rate in effect at the time Notice
of Termination is given, and for one full year thereafter.
(b) Benefits. The Company shall continue providing medical,
dental, long-term disability and life insurance equal to the coverages
existing at the time Notice of Termination is given for the greater of (i)
term of this Agreement or (ii) for one full year.
(c) Annual and Long Term Bonus. On the effective Date of
Termination the Company shall make payments to and issue to Employee with
respect to, and in place of, (i) the Annual Bonus payment provided in
Section 3.2 an amount in cash equal to 0.9 multiplied by Base Salary for
the year in which employment is terminated and (ii) the Long Term Incentive
Payout provided in Section 3.4 for the fiscal year in which employment is
terminated under this Section.
4.7 Change in Control.
(a) Severance Agreement Continued. The letter agreement dated
__________________, 1998 ("Severance Agreement") between the Company and
Employee providing certain benefits to Employee upon a change in control of
the Company is continued and upon a change of control of the Company the
Severance Agreement shall apply and have priority over this Agreement so
that in the event of any conflict between this Agreement and the Severance
Agreement the Severance Agreement shall apply.
(b) Definition. As used in this Agreement the term "change in
control of the Company" shall have the meaning expressed in the Severance
Agreement.
4.8 Notice of Termination. Any purported termination of employment
by the Company or by Employee shall be communicated by written Notice of
Termination to the other party hereto in
accordance with Section 13 hereof. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon, shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of employment under the provision so indicated, and
shall state an effective date of termination subject to adjustment pursuant
to Section 4.9.
4.9 Date of Termination, Etc. "Date of Termination" shall mean (i)
if employment is terminated for Disability, the date as provided in
Section 4.4(a), and (ii) if employment is terminated for Cause pursuant to
Section 4.1 or for any other reason (other than Disability), the date
specified in the Notice of Termination (which, in the case of a termination
pursuant to Section 4.1 above shall be not less than 30 days); provided,
however, that if within 30 days after any Notice of Termination is given,
or, if later, prior to the Date of Termination (as determined without
regard to this proviso), the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the termination,
the Date of Termination shall be the date on which the dispute is finally
resolved, either by mutual written agreement of the parties, by a binding
arbitration award, or by a final judgment, order or decree of a court of
competent jurisdiction (which is not appealable or with respect to which
the time for appeal therefrom has expired and no appeal has been
perfected); provided further that the Date of Termination shall be extended
by a notice of dispute only if such notice is given in good faith and the
party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute,
Employee shall continue to perform his duties for the Company and the
Company will continue to pay his full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to,
Base Salary) and continue Employee as a participant in all compensation,
benefit and insurance plans in which Employee was participating when the
notice giving rise to the dispute was given, until the dispute is finally
resolved in accordance with this Section. Amounts paid under this Section
are in addition to all other amounts due under this Agreement and shall not
be offset against or reduce any other amounts due under this Agreement.
4.10 Termination by Employee. Employee may terminate this Agreement
by resigning as President and Chief Executive Officer upon at least 30 days
prior written notice of the effective Date of Termination. In such event
the Company shall continue Employee's Base Salary and all fringe benefits
to the effective Date of Termination. Termination of this Agreement under
this Section does not affect the Company's obligation to make all payments
to Employee which were fixed and determined prior to the effective Date of
Termination.
5. Confidential Information.
5.1 Disclosure and Use. Employee shall not disclose, either during
or subsequent to Employee's employment with the Company, any confidential
information or proprietary data of the Company, whether or not developed by
Employee, except (i) as may be required for Employee to perform Employee's
employment duties with the Company; (ii) to the extent such information has
been disclosed to Employee by a third party who is not subject to
restriction on the dissemination of such information; (iii) as such
information becomes generally available to the public other than as a
result of a disclosure by Employee; (iv) to the extent such information is
independently developed by Employee; (v) information which must be
disclosed as a result of a subpoena or other legal process, or (vi) if
Employee shall first secure the Company's prior written authorization.
This covenant shall survive the termination of Employee's employment with
the Company, and shall remain in effect and be enforceable against Employee
for so long as any such Company confidential information or proprietary
data retains economic value, whether actual or potential, from not being
generally known to other persons who can obtain economic value from its
disclosure or use.
5.2 Return of Materials. Upon termination of employment by the
Company, Employee shall promptly deliver to the Company all customer lists,
specifications, drawings, listings, documentation, manuals, letters, notes,
note books, reports, and copies thereof, and all other materials of a
secret or confidential nature relating to the Company's business, which are
in the possession or under the control of Employee.
6. Inventions and Discoveries. Employee hereby assigns to the Company all
of Employee's rights, title and interest in and to all inventions, discoveries,
processes, designs and other intellectual property which relates to any business
of the Company which, at the time of the invention, discovery or design, is a
source of substantial revenue for the Company (hereinafter referred to
collectively as the "Inventions"), and all improvements on existing Inventions
made or discovered by Employee during the term of Employee's employment by the
Company. Promptly upon the development or making of any such Invention or
improvement thereon, Employee shall disclose the same to the Company and shall
execute and deliver to the Company such reasonable documents as the Company may
request to confirm the assignment of Employee's rights therein and, if requested
by the Company, shall assist the Company in applying for and prosecuting any
patents which may be available in respect thereof. This Section 6 does not apply
to any Invention other than one which relates to any business of the Company
which, at the time of invention, is a source of substantial revenue for the
Company, regardless of when, where or how developed.
7. Restrictive Covenant. While the Employee is an employee of the Company
and during a period in which the Company is making continuation payments of Base
Salary pursuant to Section 4 hereof, Employee shall not, without the prior
written consent of the Company, (i) engage directly or indirectly in any
Competing Business in the geographical area where the Company does business
(including, without limitation, the United States and any country in which the
Company has a sales representative at the time of termination) whether as an
employee, consultant or advisor, or owner as principal, shareholder or partner
of any equity interest in excess of 5% of any business entity (which shall
include any proprietorship, trust, joint venture, partnership or any type of
corporation or association), or (ii) serve as an officer, director, trustee,
partner or the like in any such business entity.
The term "Competing Business" as used in this Section 7 includes any
business conducted by the Company, which initially includes the design,
production and marketing of electronic systems and instrumentation for the
worldwide power and process industries and motion control products, and any
other products manufactured or marketed by the Company at the date of
termination of this Agreement.
8. Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof, shall be settled by arbitration in the
City and County of Denver in accordance with the rules of the American
Arbitration Association. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. The Company shall pay
all costs of arbitration. In the event that it shall be necessary or desirable
for Employee to retain legal counsel and/or incur other costs and expenses in
connection with interpretation of his rights under this Agreement, including any
procedure in arbitration, Employee shall be entitled to recover from the Company
reasonable attorneys' fees and costs and expenses incurred by him in connection
with such interpretation or arbitration, regardless of the final outcome, unless
the arbitrator shall determine that under the circumstances such payment would
be unjust.
9. Mitigation. Employee shall not be required to mitigate the amount of
any payment provided in this Agreement by seeking other employment or otherwise,
nor shall the amount of any payment or benefit provided in this Agreement be
reduced by any compensation earned by Employee as the result of employment by
another employer, by retirement benefits, by offset against any amount claimed
to be owed by Employee to the Company, or otherwise.
10. Announcements. No public announcement regarding termination of
employment of the Employee or any change in status of the Employee by the
Company shall be made without Employee's approval. All matters with respect to
termination of employment of Employee, retirement of Employee or other action
taken
pursuant to this Agreement shall be kept confidential and neither Company nor
Employee will make unfavorable comments about the other in connection with this
Agreement.
11. Severability. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require, and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be.
12. Non-Assignability. In light of the unique personal services to be
performed by Employee hereunder, it is acknowledged and agreed that any
purported or attempted assignment or transfer by Employee of this Agreement or
any of Employee's duties, responsibilities or obligations hereunder shall be
void. This Agreement may not be assigned by the Company without the prior
written consent of Employee.
13. Notices. Any notice, request, demand or other communication required
or permitted under this Agreement shall be in writing and shall be deemed to
have been given when delivered personally or on the date of receipt when mailed
by certified mail, return receipt requested, addressed as follows:
If to the Company:
Hathaway Corporation
8228 Park Meadows Drive
Littleton, Colorado 80124
If to Employee:
Richard D. Smith
8422 Newland Drive
Arvada, Colorado 80003
or to such other address or addresses as may be specified from time to time by
notice; provided, however, that any notice of change of address shall not be
effective until its receipt by the party to be charged therewith.
14. General.
14.1 Amendments. Neither this Agreement nor any of the terms or
conditions hereof may be waived, amended or modified except by means of a
written instrument duly executed by the party to be charged therewith.
14.2 Captions and Headings. The captions and paragraph headings used
in this Agreement are for convenience of reference only, and shall not
affect the construction or interpretation of this Agreement or any of the
provisions hereof.
14.3 Governing Law. This Agreement, and all matters or disputes
relating to the validity, construction, performance or enforcement hereof,
shall be governed, construed and controlled by and under the laws of the
State of Colorado without regard to principles of conflicts of law.
14.4 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and permitted assigns.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to Employee, 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
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 Employee to all rights for
breach hereunder.
(b) If Employee should die while any amounts would still be
payable to him hereunder if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to Employee's personal representatives or to his
estate.
14.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original hereof, but
all of which together shall constitute one and the same instrument.
14.6 Entire Agreement. Except as otherwise set forth or referred to
in this Agreement, this Agreement constitutes the sole and entire agreement
and understanding between the parties hereto as to the subject matter
hereof, and supersedes all prior discussions, agreements and understandings
of every kind and nature between them as to such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the date first set forth above.
HATHAWAY CORPORATION,
By: /s/ E. Prince
--------------------------------
/s/ Richard D. Smith
--------------------------------
Richard D. Smith