1
EXHIBIT 10.29
CHANGE IN CONTROL AGREEMENT
---------------------------
This Change In Control Agreement ("Agreement") is dated as of October 6th 1997,
and is entered into by and between HENRY MASON ("Executive") and Haskel Energy
Systems Limited (CRN 1278832 whose registered office is at North Hylton Road,
Sunderland, SR5 3JD, England.
RECITALS
- --------
Haskel considers it to be in the best interest of Haskel, Haskel International
Inc. ("HII") and HII's shareholders that the Executive be encouraged to continue
his employment with Haskel and continue to devote full attention to Haskel's
business notwithstanding the possibility, threat or occurrence of an
acquisition, merger, or change of control involving HII. Haskel also believes
that it is in the best interest of Haskel, HII and its shareholders to minimise
potential conflicts of interest and to diminish inevitable distractions arising
from the possibility of an acquisition, merger or change of control.
Accordingly, in order to secure these benefits for Haskel, and to induce the
Executive to remain in the employ of Haskel, and for other good and valuable
consideration, the Board of Directors of Haskel has caused Haskel to enter into
this Agreement.
TERMS AND CONDITIONS
- --------------------
The Executive and Haskel hereby agree to the following terms and conditions:
1. TERMS OF AGREEMENT/EXPIRATION DATE
----------------------------------
This Agreement shall be effective as of the date first indicated above and
shall remain in effect until the Expiration Date described below. The
"Expiration Date" is the third anniversary of the date either party gives
written notice of the termination of this Agreement.
2. EVENT DATE
----------
The "Event Date" shall mean the first date during the term of this Agreement on
which an Event (as defined in Clause 3) occurs; provided, however, that if an
Event occurs and if the Executive's employment with Haskel is terminated within
the six-month period prior to the date on which the Event occurs, the "Event
Date" shall mean the date immediately prior to the date of such termination.
3. EVENT
-----
"Event" shall mean any of the following:
(a) The dissolution or liquidation of HII following a Change in Control;
2
(b) The merger, consolidation, or other reorganisation of HII with or into
one or more entities which are not "Subsidiaries" (as defined below), as
a result of which 50% or less of the outstanding voting securities of
the surviving or resulting entity are, or are to be, owned by former
shareholders of HII;
(c) The sale or transfer of substantially all of HII's business and/or
assets to a person or entity which is not a Subsidiary; or
(d) A Change in Control. A "Change in Control" shall be deemed to have
occurred if:
(i) any "person", alone or together with all "affiliates" and
"associates" of such person is or becomes the "beneficial owner"
of 35% or more of the outstanding Class A Common Shares or 100%
of the outstanding Class B Common Shares of HII (the terms
"person", "affiliates", "associates" and "beneficial owner" are
used as such terms are used in the U.S. legislation known as the
Securities Exchange Act of 1934 and the General Rules and
Regulations thereunder); provided, however, that a "Change in
Control" shall not be deemed to have occurred if such "person"
is (x) any Subsidiary or any employee stock plan of HII or of
any Subsidiary, or any trust or other entity organised,
established or holding shares of such voting securities by, for
or pursuant to, the terms of any such plan, or (y) the Executive
or the Executive and one or more other persons acting as a
partnership, limited partnership, syndicate, or other group for
the purpose of acquiring, holding or disposing of securities of
HII; or
(ii) individuals who at the beginning of any period of two
consecutive calendar years constitute the Board of Directors
cease for any reason, during such period, to constitute at least
a majority thereof, unless the election, or the nomination for
election by HII's shareholders, of each new Board member was
approved by a vote of at least three quarters of the Board
members then still in office who were Board members at the
beginning of such period.
"Subsidiary" shall mean any corporation or other entity of which
more than 50% of the outstanding voting stock or voting power is
beneficially owned directly or indirectly by HII. If the
approval of the shareholders of HII for any of the occurrences
set forth in sub Clauses (a) to (d) above is obtained prior to
such occurrence, then such shareholder approval shall constitute
the Event.
4. EFFECTIVE PERIOD
----------------
For the purpose of this Agreement, the "Effective Date" is the period commencing
on the Event Date and ending on the earlier of the Expiration Date or the third
anniversary of the Event Date.
5. TERMINATION OF EMPLOYMENT
-------------------------
(a) General. The Executive shall be entitled to the payments and
benefits described in Clause 6 (a) of this Agreement in the
event the Executive's employment is terminated (i) by Haskel
during the Effective Period for any reason, other than as a
result of Executive's death or for Disability or Cause in
accordance with the terms of this Clause 5, or (ii) by the
Executive for Good Reason pursuant to a Notice of Termination
delivered during the Effective Period.
(i) Death. The Executive's employment shall terminate
automatically upon his death.
3
(ii) Disability. If the Disability of the Executive occurs
during the Effective Period (pursuant to the definition
of Disability set forth below), Haskel may give
Executive written notice in accordance with Clause 15 of
this Agreement of its intention to terminate the
Executive's employment. In such event, the Executive's
employment with Haskel shall terminate effective on the
30th day after receipt of such notice by the Executive
(the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not
have returned to full-time performance of the
Executive's duties. For the purposes of this Agreement,
"Disability" shall mean the absence of the Executive
from his duties with Haskel on a full-time basis for 180
consecutive business days or such shorter period as a
result of incapacity due to mental or physical illness
which is both (i) determined to be total and permanent
by a physician selected by Haskel or its insurers and
acceptable to the Executive or his legal representative,
and (ii) entitles the Executive to the payment of
long-term disability benefits from Haskel's long-term
disability plan commencing immediately upon the
Disability Effective Date.
(iii) Cause. Haskel may terminate the Executive's employment
during the Effective Period for Cause. For the purposes
of this Agreement, "Cause" shall be limited to:
(a) The conviction of the Executive for commission
of an indictable offence, or
(b) The wilful engaging by Executive in gross
misconduct which materially and demonstrably
injures Haskel. For the purposes of this sub
Clause, no act or failure to act on the part of
the Executive shall be considered "wilful"
unless done, or omitted to be done, by the
Executive not in good faith and without
reasonable belief that his action or omission
was in the best interest of Haskel.
(c) The issuance of an order, judgment or decree of
any court of competent jurisdiction permanently
enjoining the Executive from violating any
provision of the U.S. legislation known as the
Securities Act 1933, the Securities Exchange Act
1934 and applicable securities law of a state.
(d) A final judgment of a court holding Executive
liable in a civil action based upon conduct
showing that Execution breached a fiduciary duty
to Haskel.
(iv) Good Reason. The Executive's employment may be
terminated by the Executive for Good Reason. For
purposes of this Agreement, "Good Reason" shall mean:
(a) The assignment to the Executive of any duties
inconsistent in any material respect with his
position (including status, offices, titles and
reporting requirements), authority, duties or
responsibilities as in effect on the Event Date,
or any other action by Haskel which results in a
diminution in such position, authority, duties
or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent
action not taken in bad faith and
4
which is remedied by Haskel promptly after
receipt of notice thereof given by the
Executive;
(b) Any failure by Haskel to reappoint the Executive
to a position held by him on the Event date,
except as result of the termination of
Executive's employment by Haskel for Cause or
Disability, the death of the Executive, or the
termination of the Executive's employment by the
Executive other than for Good Reason;
(c) Reduction by Haskel in the Executive's basic
salary as in effect on the date hereof or as the
same may be increased from time-to-time;
(d) The taking of any action by Haskel (including
the elimination of medical and life insurance
plans without providing substitutes therefore or
the reduction of the Executive's benefits
thereunder) that would substantially diminish
the aggregate value of the Executive's bonus
awards and other fringe benefits including
executive benefits and perquisites from the
levels in effect prior to the Event Date;
(e) Haskel requiring the Executive to be based at
any office or location which increases the
distance from his home to the office or location
by more than 35 miles above the number of miles
the Executive drives to the office as of the
Event Date;
(f) Any purported termination by Haskel of the
Executive's employment otherwise than pursuant
to a Notice of Termination; or
(g) Any failure by Haskel to comply with and satisfy
Clause 10 (c) of this Agreement.
For purposes of this Clause, any good faith determination of
"Good Reason" made by Executive shall be conclusive.
(b) Notice of Termination. Any termination of the
Executive's employment by Haskel during the Effective
Period for any reason, or by the Executive for Good
Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with
Clause 15 of this Agreement. For the purposes of this
Agreement, a "Notice of Termination" means a written
notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the
extent applicable, sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the
provision so indicated and (iii) if the Date of
Termination (as defined below) is other than the date of
receipt of such notice, specifies the terminate date
(which date shall not be more than thirty days after the
giving of such notice). The facts and circumstances set
forth in any Notice of Termination given by Haskel
pursuant to a purported termination of the Executive for
Cause shall constitute the exclusive set of facts and
circumstances upon which Haskel may rely to attempt to
demonstrate that Cause for such termination existed. The
failure by the
5
Executive to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of
Good Reason shall not waive any right of the Executive
hereunder or preclude him from asserting such fact or
circumstance in enforcing his rights hereunder.
(c) Date of Termination. "Date of termination" means (i) if
the Executive's employment is terminated by Haskel for
Cause, or by the Executive for Good Reason, the date of
receipt of the Notice of Termination or a later date
(within the limit set forth in subsection (b)) specified
therein, as the case may be, (ii) if the Executive's
employment is terminated by Haskel other than for Cause
or Disability, the Date of Termination shall be the date
on which Haskel notifies Executive of such termination
and (iii) if the Executive's employment is terminated by
reason of death or Disability, the Date of Termination
shall be the date of death of the Executive or the
Disability Effective Date, as the case may be.
6. OBLIGATIONS OF HASKEL UPON TERMINATION
--------------------------------------
(a) Good Reason, Other Than for Cause, Death or Disability.
-------------------------------------------------------
If Haskel shall terminate the Executive's employment other than for
Cause or Disability during the Effective Period, or the Executive shall
terminate employment for Good Reason pursuant to a Notice of Termination
delivered during the Effective Period, Haskel agrees to make the
payments and provide the benefits described below. Haskel shall not be
obligated to make such payments and provide such benefits if the
Executive's employment with Haskel terminates as a result of his death.
(i) Haskel shall pay to the Executive in a lump sum in cash within
10 days after the Date of Termination an amount equal to the
product of (1) and (2), where (1) is "2" and (2) is the sum of
(x) the Executive's highest rate of annual basic salary in
effect at any time in the two years preceding the Date of
Termination and (y) the highest annual amount of any bonus paid
in respect of the most recent three fiscal years ending before
the Date of termination; provided, however, that if any bonus
otherwise payable under Haskel's bonus scheme in respect of the
fiscal year preceding the fiscal year in which the Date of
termination occurs has not been paid in full on or before the
Date of Termination, in this clause (y) shall be replaced by "[
]". (The amount in this Clause (y) is referred to hereinafter as
the "Incentive Compensation Payment.")
(ii) (A) Haskel shall pay Executive his or full basic salary through
the Date of Termination at the rate in effect at the time the
Notice of Termination is given plus a pro-rata share of the
Incentive Compensation Payment. Such pro-rata share shall equal
the fraction of Haskel's fiscal year which preceded the Date of
Termination. (B) In addition, if the bonus otherwise payable
under Haskel's bonus scheme in respect of the fiscal year,
preceding the fiscal year in which the Date of Termination
occurs has not been paid in full on or before the Date of
Termination, Haskel shall pay the Executive an amount equal to
the difference between the Incentive Compensation Payment and
the portion (if any) which was actually paid to the Executive of
such bonus in respect of the fiscal year preceding the fiscal
year in which the Date of Termination occurs.
(iii) For two years after the Executive's Date of Termination, Haskel
shall continue to provide medical and life insurance benefits
and fringe benefits and other
6
perquisites to the Executive and his family at least equal to
those which would have been provided to them if the Executive's
employment had not been terminated in accordance with the most
favourable plans, practices, programs or policies of Haskel and
its affiliated companies applicable generally to other peer
executives and their families immediately preceding the Date of
Termination; provided, however, that if the Executive becomes
re-employed with another employer, the medical, life insurance
and other benefits described herein shall cease and terminate
thirty (30) days after the effective date of the Executive's
reemployment. In connection with the foregoing, the Executive
agrees to notify Haskel in writing of his employment within Ten
days (10) of such reemployment. For purposes of determining
eligibility (but not the time of commencement of benefits) of
the Executive for retirement benefits pursuant to such plans,
practices, programs and policies, Executive shall be considered
to have remained employed until three years after the Date of
Termination and to have retired on the last day of such period.
In the event that the Executive's participation in any of the
plans, programs, practices or policies of Haskel referred to in
this subsection is barred by the terms of such plans, programs,
practices or policies, Haskel shall provide the Executive with
benefits substantially similar to those which the Executive
would be entitled as a participant in such plans, programs,
practices or policies. At the end of the period of coverage, the
Executive shall have the option to have assigned to him, at no
cost and with no apportionment of prepaid premiums, any
assignable insurance policy owned by Haskel and relating
specifically to the Executive.
(iv) Haskel shall enable the Executive to purchaser the car, if any,
that Haskel was providing for him at the time notice of
Termination was given at the market value of such car at such
time, as shown in the current addition of Glass Guide. The
obligations set forth in this Section 6(a) (iv) are hereinafter
referred to as the "Special Conditions".
(v) Any bonus previously deferred by the Executive (together with
any accrued earnings or interest thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid
(the amount referred to in this clause (v) and clause (ii) above
being referred to as "Accrued Obligations").
(vi) To the extent not theretofore paid or provided, Haskel shall
promptly pay or provide the Executive any other amounts or
benefits required to be paid or provided or which the Executive
is eligible to receive under any plan, program, policy,
practice, contract or agreement of Haskel and its affiliated
companies, including but not limited to any benefits payable to
the Executive under a plan, policy, practice, etc., referred to
in Section 7 below, (such other amounts and benefits being
hereinafter referred to as "Other Benefits") in accordance with
the terms of such plan, program, policy, practice, contract or
agreement.
(vii) Upon a Change of Control, any and all options, warrants and
grants to purchase Class A Common Stock of HII shall become
immediately vested and exercisable by Executive.
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Effective Period, this Agreement shall
terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for timely performance
of the Special Obligations, payment of Accrued Obligations and payment
or provision of the Other Benefits. Accrued Obligations shall be paid to
the Executive's
7
estate or beneficiary, as applicable, in a lump sum in cash within 10
days of the Date of Termination.
(c) Disability. If the Executive's employment is terminated by reason of the
Executive's Disability during the Effective Period, this Agreement shall
terminate without further obligations to the Executive, other than for
timely performance of the Special Obligations, payment of Accrued
Obligations and payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination.
(d) Cause. If the Executive's employment shall be terminated for Cause
during the Effective Period, this Agreement shall terminate without
further obligations to the Executive (other than the obligation to pay
to the Executive his basic salary earned through the Date of Termination
and payment or provision of other Benefits).
(e) The provisions of this Paragraph 6 supersede and replace any other
agreement between Haskel and the Executive relating to the payment of
any benefits as a result of the Termination of his employment by Haskel
or the Executive's voluntary termination for any reason.
(f) Other than for Good Reason
(i) If the Executive shall voluntarily terminate his employment,
excluding a termination for Good Reason, within the six month
period following the Event Date, this Agreement shall terminate
without further obligations to Executive, except that Haskel
shall pay to the Executive his basic salary earned through the
Date of Termination and pay or provide the Other Benefits.
(ii) If the Executive shall voluntarily terminate his employment,
excluding a termination for Good Reason, within the Effective
Period, but after the six month period following the Event Date,
this Agreement shall terminate without further obligations to
Executive, except that Haskel shall (i) pay to the Executive his
basic salary earned through the Date of Termination and pay or
provide the Other Benefits, and (ii) timely perform the Special
Obligations.
7. Non-Exclusivity of Rights.
--------------------------
Nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by Haskel
or any of its affiliated companies and for which the Executive may qualify, nor,
subject to Clause 19, shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with Haskel or
any of its affiliated companies. Amounts which are vested benefits or which
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with Haskel or any of its affiliated
companies at or subsequent to the Date of Termination shall be payable in
accordance with such plan, policy, practice or program or contract or agreement
except as explicitly modified by this Agreement.
8. Full Settlement
---------------
Haskel's obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defence to other claims, right or action
which Haskel may have against the Executive or others.
8
In no event shall the Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to him under any
one or more provisions of this Agreement and, except as provided in Clause
6(a)(iii), such amounts shall not be reduced whether or not Executive obtains
other employment. Haskel agrees to pay, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by Haskel, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Judgment Rate, the Executive shall be entitled to payment of such legal fees and
expenses on a monthly basis during the pendency of any contest. Accordingly,
Haskel shall, on the tenth business day of each month following the Executive's
Date of Termination, pay the Executive any legal fees and expenses incurred by
him as a result of a dispute hereunder for which the Executive presented
invoices to Haskel on or before the last business day of the preceding month.
Notwithstanding the foregoing, Haskel shall be entitled to reimbursement by the
Executive (1) for any legal fees or expenses of Executive in any contest by
Executive about the amount of any payment under this Agreement if it is
determined that Haskel did not breach this Agreement and Executive's claim was
not made in good faith, and (2) to the extent it is determined that the amount
of such legal fees and expenses was not reasonable.
9. Certain Additional Payments by Haskel
-------------------------------------
(a) In the event that any payment or distribution by Haskel to or for the
benefit of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Clause 9 (a)) ("Payments") is determined to be subject to (1) the tax
imposed by or any taxation authority (2) any interest or penalties are
incurred by the Executive with respect to such tax, then Haskel shall
pay to Executive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by 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) imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Tax
imposed upon the Payments.
(b) Subject to the provisions of Clause 9 (c), all determinations required
to be made under this Clause 9, including whether and when a Gross-Up
Payment is required and amount of such Gross-Up Payment and the
assumptions to be utilised in arriving at such determination, shall be
made by such firm of chartered accountants as may be designated by the
Executive and which is reasonably satisfactory to Haskel (the
"Accounting Firm"), which shall provide detailed supporting calculations
both to Haskel and Executive within 15 business days of the receipt of
request from Executive to Haskel. All fees and expenses of the
Accounting Firm shall be borne solely by Haskel. Any Gross-Up Payment,
as determined pursuant to this Clause 9 (b), shall be paid by Haskel to
Executive within five days of the receipt of the Accounting Firm's
determination.
(c) The Executive shall notify Haskel in writing of any written claim
actually received by the Executive from the relevant taxation authority
requesting the payment by the Executive of any tax in respect of
Payments. Such notification shall be given as soon as practicable (which
shall be deemed to have occurred if it is given within 20 business days)
after the Executive actually receives such claim and shall apprise
Haskel of the nature of such claim, and the date on which such claim is
requested to be paid. The Executive shall not pay such claim prior to
the expiration of the 30 day period following the date on which it
9
gives such notice to Haskel (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If Haskel
notifies the Executive in writing prior to the expiration of such period
that it desires to contest such claim, the Executive shall:
(i) Give Haskel any information reasonably requested by Haskel
relating to such claim;
(ii) Take such action in connection with contesting such claim as
Haskel shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation
with respect to such claim by a legal adviser reasonably
selected by Haskel;
(iii) Co-operate with Haskel in good faith in order to context such
claim effectively, and
(iv) Permit Haskel to participate in any proceedings relating to such
claim;
provided, however that Haskel shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after tax basis, for any tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on
the foregoing provisions of this Clause 9 (c), Haskel shall control all
proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct the
Executive to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute
such contest to a determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more appellate courts, as
Haskel shall determine; provided, however, that if Haskel directs the
Executive to pay such claim and sue for a refund, Haskel shall advance
the amount of such payment to the Executive on an interest free basis
and shall indemnify and hold the Executive harmless, on an after tax
basis, from any tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided that
any extension of the statute of limitations relating to payment of taxes
for the taxable year of Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, Haskel's control of the contest shall be limited to issues
with respect to which Gross Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may
be, any other issue raised by the Inland Revenue or any other taxing
authority.
(d) If, after the receipt of the Executive of an amount advanced by Haskel
pursuant to Clause 9 (c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to
Haskel's complying with the requirements of Clause 9 (c)) promptly pay
to Haskel the amount of such refund (together with any interest paid or
credited therein after taxes applicable thereto). If, after the receipt
by the Executive of an amount advanced by Haskel pursuant to Clause 9
(c) determination is made that the Executive shall not be entitled to
any refund with respect to such claim and Haskel does not notify the
Executive in writing or its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such
advance shall be forgiven
10
and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross Up Payment
required to be paid.
10. Successors
----------
(a) This Agreement is personal to the Executive and without the prior
written consent of Haskel shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon Haskel
and its successors and assigns.
(c) Haskel will 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 Haskel to assume expressly and
agree to perform this Agreement in the same manner and to the same
extent that Haskel would be required to perform it if no such succession
had taken place. As used in this Agreement, "Haskel" shall mean Haskel
as hereinbefore defined and any successor it its business and/or assets
as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
11. Arbitration
-----------
(a) Because it is agreed that time will be of the essence in determining
whether any payments are due to the Executive under this Agreement, he
may, if he desires, submit any claim for payment under this Agreement or
dispute regarding the interpretation of this Agreement to arbitration in
accordance with the Arbitration Acts. This right to select arbitration
shall be solely that of the Executive, and he may decide whether or not
to arbitrate in his discretion. The "right to select arbitration" is not
mandatory on the Executive, and he may choose in lieu thereof to bring
an action in an appropriate civil court. Once an arbitration is
commenced, however, it may not be discontinued without the mutual
consent of both parties to the arbitration. During the lifetime of the
Executive only he can use the arbitration procedure set forth in this
Clause.
(b) In the event the arbitrator finds that Haskel has breached this
Agreement, Haskel shall immediately take the necessary steps to remedy
the breach. The award of the arbitrator shall be final and binding upon
the parties. The award may be enforced in any appropriate court as soon
as possible after its rendition. If an action is brought to confirm the
award, both Haskel and Executive agree that no appeal shall be taken by
either party from any decision rendered in such action.
12. Governing Law
-------------
The laws of England shall govern the validity and interpretation of this
Agreement, with regard to conflicts of laws.
13. Headings
--------
The headings of this Agreement are not part of the provisions hereof and shall
have no force or effect.
11
14. Amendment
---------
This Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors and
legal representatives.
15. Notices
-------
All notices and other communications shall be in writing and shall be given by
hand delivery to the other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:-
If to the Executive:-
....................................................
....................................................
....................................................
....................................................
If to Haskel:-
North Hylton Road
.....................................................
Sunderland
.....................................................
SR5 3JD
.....................................................
.....................................................
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee. Neither the failure of the Executive to
give any notice required by this Agreement (including but not limited to the
notice specified in Clause 9 (c) hereof), nor defects or errors in any notice
given by the Executive, shall relieve Haskel of any corresponding obligation
under this Agreement unless, and only to the extent that, Haskel is actually and
materially prejudiced thereby.
16. Severability
------------
The invalidity or unenforceability of any provision of this Agreement shall not
effect the validity or enforceability of any other provision of this Agreement.
17. Withholding Taxes
-----------------
12
Haskel may withhold from any amounts payable under this Agreement such taxes as
shall be required to be withheld pursuant to any applicable law or regulation.
18. No Waiver
---------
The Executive's or Haskel's failure to insist upon strict compliance with any
provision hereof or any other provision of this Agreement or the failure to
assert any right the Executive or Haskel may have hereunder, including, without
limitation, the right of Executive to terminate employment for Good Reason shall
not be deemed to be a waiver of such provision or right or any other provision
or right of this Agreement.
19. Counterparts
------------
This Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of which shall together constitute
one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first written above.
THE COMMON SEAL OF HASKEL )
ENERGY SYSTEMS LIMITED was ) R. MALCOLM GREAVES
hereunto affixed in the )
presence of:
/s/ LONNIE D. SCHNELL
Director /s/ R. MALCOLM GREAVES
---------------------------
Director/Secretary
SIGNED AS A DEED by HENRY /s/ HENRY MASON
MASON in the presence of:
/s/ LONNIE D. SCHNELL