TRANSITION AGREEMENT
This Transition Agreement ("Agreement") is made and entered into on this
3rd day of August, 2000 ("Agreement Date") by and between Xxxxx X. Xxxxxxx, an
individual residing in St. Louis County, Missouri ("Xxxxxxx"), and Spartech
Corporation, a Delaware corporation, with its principal place of business in St.
Louis County, Missouri (the "Company").
WHEREAS, Xxxxxxx has been employed as Executive Vice President and Chief
Operating Officer of the Company; and
WHEREAS, Xxxxxxx is a stockholder and is the corporate Secretary and a
director of the Company; and
WHEREAS, Xxxxxxx and the Company wish to terminate Xxxxxxx'x relationship
as an employee and officer of the Company and enter into the Consulting
Agreement attached hereto as Exhibit A; and
WHEREAS, the parties wish to enter into this Agreement to memorialize their
agreements as to the nature, terms, scope and timing of the termination of the
various relationships between Xxxxxxx and the Company, all upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, for and in consideration of the representations, warranties
and mutual covenants made herein, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Transition of Employment.
a. Effective Date of Transition
Xxxxxxx'x employment with the Company as Executive Vice President and
Chief Operating Officer of the Company, and his position as Secretary
of the Company, shall terminate effective at 11:59 p.m on October 28,
2000 ("Transition Date"), thereby terminating as of that date all
further duties of Xxxxxxx to the Company, of whatever kind and nature,
except as otherwise specifically provided in this Agreement or the
attached Consulting Agreement (collectively referred to as the
"Transition Documents"). By these presents Xxxxxxx does hereby resign
as Executive Vice President, Secretary and Chief Operating Officer of
the Company and its subsidiaries effective on the Transition Date, and
the Company accepts said resignation.
b. Expense Account
Until the Transition Date, Xxxxxxx agrees to incur only pre-approved
Company expenses. In addition, Xxxxxxx shall submit his final expense
report to the Company on or before the Transition Date.
c. Interim Base Salary and Bonus
Xxxxxxx shall continue to receive his base salary each week until the
Transition Date. Thereafter, all entitlement to base salary shall
cease. In lieu of the Bonus, if any, Xxxxxxx would have received for
fiscal year 2000 (i.e., November 1999 through October 2000) under his
Employment Agreement dated November 1, 1999, the Company will pay
Xxxxxxx a bonus of $428,000 not later than January 3, 2001. Except as
expressly provided in the Transition Documents, Xxxxxxx shall be
entitled to no further base salary, bonus or any other compensation or
benefits under any Employment Agreement or arrangement with the
Company.
d. Vacation
Xxxxxxx shall take all accrued vacation time prior to the Transition
Date. Xxxxxxx shall not be entitled to payment for any accrued
vacation not taken by the Transition Date.
e. Participation in Other Benefit Plans
Except as expressly provided in the Transition Documents, Xxxxxxx'x
eligibility to participate in the Company's fringe benefit, retirement
and other Company benefit programs will terminate on the Transition
Date. Neither Xxxxxxx nor the Company shall make further contributions
to the Company's 401K plan after the Transition Date.
f. Duties and Authority During Interim Period
During the "interim period" from the Agreement Date to November 1,
2000, Xxxxxxx shall undertake only such financial and operational tasks
for the Company as may be requested by the Chief Executive Officer.
Xxxxxxx'x authority to act on behalf of and to bind the Company shall
be limited to any express authority granted to him by the Chief
Executive Officer during the interim period. All prior grants of
authority to act on behalf of and to bind the Company, whether express
or implied, are hereby withdrawn.
g. Interim Covenants
i. Covenant Not to Compete or Solicit
(1) Xxxxxxx covenants to and with the Company, that neither he,
nor any corporation (other than the Company), partnership or
business firm or entity either in which he may now or
hereafter have a 5% or greater equity interest or with which
he may be employed or otherwise affiliated, whether as an
officer, director, employee, sales representative,
consultant or otherwise, nor any person subject to the
control or direction of Xxxxxxx or acting on his behalf,
will, during the entire "Period of this Covenant," as
hereafter defined, within the "Trade Area" hereafter
specified, directly or indirectly:
(a) conduct, engage in, be connected with, have any interest
in, or aid or assist, any person, firm or business
entity, whether a corporation, partnership,
proprietorship or otherwise, which engages in any segment
of the plastics processing industry, including but not
limited to sheet and rollstock extrusion, color and
compounding, cast acrylics, injection molding, profile
extrusion, blow molding and rotational molding, but
excluding blown film, pipe extrusion and thermoforming;
or
(b) in any way, directly or indirectly, either for himself or
for any other person, firm, or corporation, take any
action or perform any services which are designed to or
in fact do call upon, compete for, solicit, divert, or
take away, or attempt to divert or take away, any of the
customers, clients or employees of the Company with
respect to business within the scope of the above non-
competition covenant. This prohibition includes
customers and clients existing at the present time, past
customers solicited, sold to, or served by the Company
during the three years prior to the date of this
Agreement, and any new customers sold to or served by the
Company during the interim period.
(2) The Period of this Covenant shall be coextensive with the
interim period as set out above.
(3) The Trade Area shall be North America.
ii. Covenant Not To Disclose Confidential Information
(1) Xxxxxxx agrees to protect and not disclose any Confidential
Information of the Company about the operations, customers,
creative techniques, and trade secrets used by the Company to
any person, firm or corporation. This confidentiality
agreement shall be in force for as long as any of the
information shall remain Confidential Information of the
Company.
(2) Xxxxxxx agrees that during the interim period he will not in
any manner either directly or indirectly, divulge, disclose or
communicate to any person, firm or corporation, in any manner,
whatsoever, any Confidential Information of the Company
concerning any matters affecting or relating to the business
of the Company, including, without limiting the generality of
the foregoing, any of the customers, the prices it obtains, or
has obtained, from the sale of, or at which it sells or has
sold, its products, or any other information concerning the
business of the Company, its manner of operation, its plans,
processes, or other data.
(3) For purposes of this Agreement, the term Confidential
Information shall not include information that (a) is or
lawfully becomes generally known or available to the public
other than as a result of a disclosure under this Agreement,
(b) is otherwise available to Xxxxxxx on a nonconfidential
basis; (c) becomes available to Xxxxxxx on a nonconfidential
basis from a source other than the Company, provided that such
source is not bound, to Xxxxxxx'x reasonable knowledge, by a
confidentiality agreement with, or other legally enforceable
obligation of secrecy to or for the benefit of, the Company;
or (d) Xxxxxxx is compelled to disclose by legal process or
discloses as part of a claim or defense in any litigation
between the parties hereto.
h. Vacation of Office and Return of Company Property
Within two days after the Agreement Date Xxxxxxx shall vacate his
office located at Company's corporate office, 000 X. Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx, and, except as expressly provided herein, return to
the Company all property in his possession or control which is owned,
leased or rented by the Company, including but not limited to all keys
to Company property, all Company credit cards, all Company documents
(including Company documents stored in electronic format), and all
Company computer equipment.
Exceptions:
(1) Xxxxxxx may retain the use of his company car until the
original term of the lease expires on June 25, 2001. After
the original term of the lease expires, the Company shall, at
its sole discretion, either extend the term of lease until
October 31, 2002, or pay Xxxxxxx an automobile allowance equal
to the monthly lease cost under the original lease term
($776.91 per month) until October 31, 2002. Xxxxxxx shall
surrender the car to the lessor in good condition on or before
the expiration of the lease.
(2) Xxxxxxx may retain a copy of the Company's 1997 business plan
for his own personal use as a model for developing business
plans for any endeavor not prohibited by the Consulting
Agreement. However, Xxxxxxx shall not disclose the substance
of the business plan without the prior written consent of the
Company.
i. Representation No Copies Were Retained
Except as authorized in paragraph 1.h..(2), Xxxxxxx represents that he
has not retained copies of any Company documents or keys.
2. Insurance
Xxxxxxx'x participation in the Company's group plans after the Transition
Date shall be governed exclusively by the Consulting Agreement attached
hereto as Exhibit A.
3. Stock Options
a. Stock Option Agreements
Xxxxxxx'x current Stock Option Agreements which provide for Xxxxxxx'x
right to purchase: (1) 60,000 shares at $10.875 per share; (2) 150,000
shares at $15.875 per share (3) 27,500 shares at $18.00 per share and
(4) 65,000 shares at $28.625 per share, as amended as of the Agreement
Date (hereinafter "Current Options"), shall remain in full force and
effect according to their terms; except that the Current options will
be fully vested no later than November 1, 2003. No subsequent
amendments to the Company's stock option agreements or stock option
plans shall alter Xxxxxxx'x rights under the foregoing Stock Option
Agreements.
b. Warranty re Continued Ownership of Stock Options
Xxxxxxx represents and warrants that he has not transferred ownership
of any stock options issued to him by the Company other than the stock
options for 165,000 shares which are described in and covered by the
Prospectus prepared in December 1999.
4. Stock Sale Restrictions
From the Agreement Date until three months after Xxxxxxx ceases to be a
Director of the Company, Xxxxxxx agrees that he will not sell any of the
Company's stock which he may acquire through the exercise of the Current
Options.
5. Stock Sale Representations
Xxxxxxx represents that he has not sold any of the Company's stock within
the 20 days immediately preceding the Agreement Date.
6. Mutual Releases
a. For and in consideration of the representations, covenants, promises,
agreements and acknowledgments contained herein and in the Consulting
Agreement, the sufficiency of which is hereby acknowledged, Xxxxxxx,
for himself and his heirs, successors and/or assigns, hereby
irrevocably and unconditionally releases and forever discharges the
Company and each of the Company's stockholders, predecessors,
successors, assigns, agents, directors, officers, employees,
representatives, attorneys, and all persons acting by, through, under
or in concert with any of them ("Xxxxxxx'x Releasees"), from any and
all charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses (including
attorneys' fees and costs actually incurred) of any nature whatsoever,
known or unknown, suspected or unsuspected (collectively, "Claims"),
which Xxxxxxx now has, owns or holds, or claims to have, own or held,
or which Xxxxxxx at any time heretofore had, owned or held, or claimed
to have, own or held against each or any of Xxxxxxx'x Releasees;
excepting only Claims arising out of the Company's breach of the
Transition Agreement and/or the Consulting Agreement or the documents
referenced therein. This release includes, but it not limited to, the
following claims:
i. arising from Xxxxxxx'x employment, including but not limited to
the Employment Agreement, pay, bonuses, insurance, employee
benefit plans, and other terms and conditions of employment or
employment practices of the Company;
ii. relating to the termination of Xxxxxxx'x employment with the
Company or the surrounding circumstances thereof;
iii.relating to payment of any attorney fees for legal services to
Xxxxxxx;
iv. based on any claim of employment discrimination or retaliation on
the basis of race, color, religion, sex, national origin,
handicap, disability, age or any other category protected by law
under Title VII of the Civil Rights Act of 1964, as amended, the
Civil Rights Act of 1991, the Fair Labor Standards Act, the Age
Discrimination in Employment Act of 1967, as amended, the Older
Workers' Benefit Protection Act, Executive Order 11246, the Equal
Pay Act, the Americans with Disabilities Act, the Rehabilitation
Act of 1973, Employee Retirement Income Security Act of 1974, the
Consolidated Omnibus Budget Reconciliation Act of 1985, or the
Missouri Human Rights Act, all as amended. Xxxxxxx hereby agrees
that if any such claim referenced herein is filed, pursued or
otherwise prosecuted by or through him, Xxxxxxx waives his right
to relief from such claim, including the right to attorney's fees,
costs and any and all other relief, whether legal or equitable,
sought in such claim;
v. based on any implied written or oral contract, tort, whistle
blower, personal injury, or wrongful discharge theory; and
vi. based on any federal, state or local constitution, regulation, law
(statutory or common), or legal theory.
b. For and in consideration of the representations, covenants, promises,
agreements and acknowledgments contained herein and in the Consulting
Agreement, the sufficiency of which is hereby acknowledged, the
Company, for itself and its successors and/or assigns, hereby
irrevocably and unconditionally releases and forever discharges Xxxxxxx
and each of Xxxxxxx'x heirs, successors, assigns, agents,
representatives, attorneys, and all persons acting by, through, under
or in concert with any of them ("Company's Releasees"), from any and
all Claims which the Company now has, owns or holds, or claims to have,
own or held, or which the Company at any time heretofore had, owned or
held, or claimed to have, own or held against each or any of the
Company's Releasees; excepting only Claims arising out of Xxxxxxx'x
breach of the Transition Agreement and/or Consulting Agreement or the
documents referenced therein..
c. Each party hereby acknowledges and agrees that the foregoing releases
are general releases and further expressly waives and assumes the risk
of any and all Claims for damages which exist as of this date but which
such party does not know or suspect to exist, whether through
ignorance, oversight, error, negligence or otherwise, and which, if
known, would materially affect its decision to give its release.
7. Xxxxxxx'x Rights Under The Transition Documents Are In Lieu of All Others
The Transition Documents set forth the complete and exclusive rights of
Xxxxxxx to any benefits from the Company ;and are in lieu of all other
compensation . benefits, options or other consideration of any form
whatsoever to which Xxxxxxx is entitled to or would have become entitled to
from the Company. To the extent any other agreement or plan conflicts with
the Transition Documents, the Transition Documents shall be controlling.
8. Public Statements
The Company has provided Xxxxxxx a draft of the statement to be released to
the public concerning Xxxxxxx'x transition to consulting status and the
other aspects of the transition to Consulting Agreement. It is understood
and acknowledged that the Company shall issue any press releases in that
regard and that Xxxxxxx shall not make statements to the press and/or stock
analysts concerning these matters without the prior consent of the Company.
9. Full Cooperation in Legal Matters
In the event that the Company becomes involved in any legal proceedings
relating to events which occurred during Xxxxxxx'x employment with the
Company, and about which Xxxxxxx has personal knowledge, Xxxxxxx agrees to
cooperate reasonably in the preparation, prosecution, and/or defense of the
Company's cases. To the extent that Xxxxxxx has out-of-pocket expenses in
connection with such cooperation, the Company agrees to reimburse same,
provided Xxxxxxx follows the Company's policies and procedures for
reimbursement which are in effect at the time such expenses are incurred.
If such cooperation is necessary after the expiration of the Consulting
Agreement, the Company will also pay Xxxxxxx a per diem fee of $500 for
each day or part of a day in which his cooperation is required. The per
diem fee shall not apply to incidental or occasional telephone calls.
10. Advice of Counsel
Xxxxxxx expressly acknowledges that he has had a full opportunity to read
and consider the Transition Documents, and to seek advice from any source
(legal, financial or otherwise) he might desire regarding the Transition
Documents prior to executing them. Xxxxxxx expressly acknowledges that he
has obtained legal counsel and advice concerning the Transition Documents
and that he voluntarily entered into the Transition Documents and fully
understands and agrees to all of their terms.
11. Attorney Fees
Each party hereto shall bear all attorney's fees and costs arising from the
actions of its own counsel in connection with the review and execution of
the Transition Documents and the matters and documents referred to herein.
However, in the event of any dispute over, or if any party shall violate,
the Transition Documents or the other documents referred to herein, in
addition to any other damages or other relief to which the prevailing party
shall be entitled, the prevailing party shall recover its/his fair and
reasonable attorney fees incurred in the enforcement of the Transition
Documents or the other documents referred to herein.
12. Right of Rescission
Xxxxxxx acknowledges that he has been expressly informed by the Company
that he has twenty-one (21) days from the date of presentation of this
Transition Agreement to him for review to decide whether to execute it, and
that he has been specifically advised that he should seek consultation with
an attorney before signing the Transition Documents. Xxxxxxx understands
that he may revoke the Transition Documents, thereby nullifying the
Transition Documents and all of their terms, by notifying the Chief
Executive Officer of the Company of revocation in writing and hand-
delivered at any time within seven (7) days after executing the Transition
Documents. Xxxxxxx further understands that the Transition Documents and
all of their terms are not effective or enforceable until the seven (7) day
revocation period has elapsed, and then the Transition Documents shall be
retroactive to the Agreement Date. In the event Xxxxxxx exercises his
right to withdraw or rescind his waiver of rights to assert or allege
discrimination in violation of the ADEA, or to assert or allege any other
claim or cause of action, the Company's duties under the Transition
Documents shall be null and void.
13. Miscellaneous Provisions.
a. Choice of Law
The Transition Documents shall be construed and interpreted in accordance
with the laws of the State of Missouri.
b. Entire Agreement
The Transition Documents and documents referred to therein constitute the
entire agreement between the parties with respect to Xxxxxxx'x past,
present and future relationship with the Company, superseding all prior
written and oral agreements, including but not limited to the November 1,
1999 Employment Agreement and all other employment arrangements. All
rights and obligations of the parties are contained in or are expressly
reserved in the Transition Documents and/or documents referenced therein
and all of the parties' prior rights and obligations to each other which
are not expressly reserved herein, are extinguished, canceled, rescinded
and declared null and void. There are no other agreements, covenants,
understandings, warranties or representations, express or implied, oral or
written, with respect to Xxxxxxx'x relationship with the Company that are
not expressly set forth or expressly reserved herein.
c. No Oral Modification
The Transition Documents may not be modified, altered or changed except by
a written agreement signed by the parties hereto.
d. Definitions
i. As used in the Transition Documents, Xxxxxxx'x duties and
covenants to "the Company" shall include Spartech Corporation and
its affiliates, including, but not limited to Vita International
Limited.
ii. As used in the Transition Documents, the phrases "documents
referenced therein" or "documents referenced herein" mean the
Stock Option Agreements relating to the Current Options and the
Deferred Compensation Agreement dated March 3, 2000, as
specifically amended in accordance with the Transition Documents.
e. Severability
If any provision of the Transition Documents is held to be invalid, the
remaining provisions shall remain in full force and effect.
f. Separate Execution
Separate copies of this document shall constitute original documents which
may be signed separately but which together will constitute one single
agreement. The Transition Documents will not be binding on any party,
however, until signed by all parties or their representatives.
g. Consent to Jurisdiction
Each party hereto hereby submits to the exclusive jurisdiction of each
state court of Missouri located in St. Louis County, and to the federal
courts located within the State of Missouri for the district which includes
St. Louis County for the resolution of any and all disputes relating to the
Transition Documents and the transactions contemplated hereby; and each
party consents to venue in any of such courts and agrees not to raise any
objection or defense that the same constitutes an inconvenient forum.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
s/XXXXX X. XXXXXXX
SPARTECH CORPORATION
By: s/XXXXXXX X. XXXXXXXX
Chairman of the Board, President and Chief
Executive Officer
Exhibit A
Consulting Agreement
This Consulting Agreement is made as of this 3rd day of August, 2000, by
and between Spartech Corporation ("the Company") and Xxxxx X. Xxxxxxx
("Xxxxxxx"). The parties agree as follows:
1. Scope of Duties
During the term of this Agreement, Xxxxxxx shall advise and consult with
the Company regarding financial and operational matters as requested by the
Chief Executive Officer.
2. Duration of Agreement
The term of this Agreement shall commence on November 1, 2000 and terminate
on October 28, 2005. This Agreement may not be canceled by the Company.
3. Compensation
As compensation for Xxxxxxx'x consulting services and the other covenants
of Xxxxxxx in this Agreement:
a. The Company shall pay Xxxxxxx a consulting fee of $545,000 per year for
each year of the Agreement, payable as follows:
i. $1,825,000.00 on November 1, 2000; and
ii. $15,000.00 each month during the term of the agreement, the
first payment to be made on November 30, 2000 and the last
payment to be made on October 28, 2005.
b. To the extent that Xxxxxxx has out-of-pocket expenses in connection
with performing any duties requested of him under this agreement, the
Company agrees to reimburse same, provided Xxxxxxx follows the
Company's policies and procedures for reimbursement which are in
effect at the time such expenses are incurred.
4. Insurance
The Company will maintain and pay for Xxxxxxx'x group health coverage
during the term of this Consulting Agreement. The benefits,
deductibles and other aspects of the coverage will be the same as
those provided to the Company's executive officers located in Clayton,
Missouri.
5. Deferred Compensation
a. For purposes of this section, the term "Rabbi Trust" refers to the
trust which was created for the benefit of Xxxxxxx pursuant to the
Deferred Compensation Agreement dated March 3, 2000.
b. In December 2000, the Company will contribute 15% of Xxxxxxx'x
Compensation for 1999 to the Rabbi Trust in accordance with the
Deferred Compensation Agreement dated March 3, 2000.
c. In December 2001 and December 2002, the Company will contribute the
sum of $65,000 each year to the Rabbi Trust.
d. Except as provided in subparagraphs b. and c. above, the Company shall
not be obligated to make any further contributions of any type to the
Rabbi Trust. The contributions expressly provided herein are
exclusive and supersede the contribution provisions of the Deferred
Compensation Agreement dated March 3, 2000.
e. The Deferred Compensation Agreement dated March 3, 2000 will be
amended to conform to this Agreement and to reflect that Xxxxxxx'x
transition to a consultant shall not constitute a termination of
employment for purposes of the Deferred Compensation Agreement so as
to trigger payment of the amounts held in the Rabbi Trust. All
amounts held in the Rabbi Trust shall be paid to Xxxxxxx on January 1,
2003.
6. Covenant Not to Compete or Solicit
x. Xxxxxxx covenants to and with the Company, that neither he, nor any
corporation (other than the Company), partnership or business firm or
entity either in which he may now or hereafter have a 5% or greater
equity interest or with which he may be employed or otherwise
affiliated, whether as an officer, director, employee, sales
representative, consultant or otherwise, nor any person subject to the
control or direction of Xxxxxxx or acting on his behalf, will, during
the entire "Period of this Covenant," as hereafter defined, within the
"Trade Area" hereafter specified, directly or indirectly:
i. conduct, engage in, be connected with, have any interest in, or
aid or assist, any person, firm or business entity, whether a
corporation, partnership, proprietorship or otherwise, which
engages in any segment of the plastics processing industry,
including but not limited to sheet and rollstock extrusion, color
and compounding, cast acrylics, injection molding, profile
extrusion, blow molding and rotational molding, but excluding
blown film, pipe extrusion and thermoforming; or
ii. in any way, directly or indirectly, either for himself or for any
other person, firm, or corporation, take any action or perform
any services which are designed to or in fact do call upon,
compete for, solicit, divert, or take away, or attempt to divert
or take away, any of the customers, clients or employees of the
Company with respect to business within the scope of the
above non-competition covenant. This prohibition includes
customers and clients existing at the present time, past
customers solicited, sold to, or served by the Company during the
three years prior to the date of this Agreement, and any new
customers sold to or served by the Company during the term of the
Consulting Agreement.
b. The Period of this Covenant shall be coextensive with the term of this
Agreement as set out in Section 2 above.
c. The Trade Area shall be North America.
7. Covenant Not To Disclose Confidential Information
x. Xxxxxxx agrees to protect and not disclose any Confidential
Information of the Company about the operations, customers, creative
techniques, and trade secrets used by the Company to any person, firm
or corporation. This confidentiality agreement shall be in force for
as long as any of the information shall remain Confidential
Information of the Company.
x. Xxxxxxx agrees that during the term of this Agreement he will not in
any manner either directly or indirectly, divulge, disclose or
communicate to any person, firm or corporation, in any manner,
whatsoever, any Confidential Information of the Company concerning any
matters affecting or relating to the business of the Company,
including, without limiting the generality of the foregoing, any of
the customers, the prices it obtains, or has obtained, from the sale
of, or at which it sells or has sold, its products, or any other
information concerning the business of the Company, its manner of
operation, its plans, processes, or other data.
c. For purposes of the Agreement, the term Confidential Information shall
not include information that (1) is or lawfully becomes generally
known or available to the public other than as a result of a
disclosure under this Agreement, (2) is otherwise available to Xxxxxxx
on a nonconfidential basis; (3) becomes available to Xxxxxxx on a
nonconfidential basis from a source other than the Company, provided
that such source is not bound, to Xxxxxxx'x reasonable knowledge, by a
confidentiality agreement with, or other legally enforceable
obligation of secrecy to or for the benefit of, the Company; or (4)
Xxxxxxx is compelled to disclose by legal process or discloses as part
of a claim or defense in any litigation between the parties hereto.
8. Remedies for Violation of Non-Compete, Non-Solicitation & Non-Disclosure
Provisions
Xxxxxxx acknowledges that irreparable harm would be sustained by the
Company if Xxxxxxx breaches the covenants set forth in paragraphs 6 or
7 and Xxxxxxx therefore agrees that, in addition to damages or any
other rights which the Company may have or to which it may be entitled
under this Agreement or at law or in equity, the Company shall be
entitled to apply to a court for, and obtain, injunctive relief
against Xxxxxxx and against any third party in order to prevent any
breach or threatened breach of such covenant, and to recover its
attorney fees incurred in enforcing this Agreement.
9. Miscellaneous Provisions
a. Choice of Law
This Agreement shall be construed and interpreted in accordance with the
laws of the State of Missouri.
b. Entire Agreement
The Transition Documents constitute the entire agreement between the
parties with respect to Xxxxxxx'x past, present and future relationship
with the Company, superseding all prior written and oral agreements. All
rights and obligations of the parties are contained in or are expressly
reserved in the Transition Documents and all of the parties' prior rights
and obligations to each other which are not expressly reserved herein, are
extinguished, canceled, rescinded and declared null and void. There are no
other agreements, covenants, understandings, warranties or representations,
express or implied, oral or written, with respect to Xxxxxxx'x relationship
with the Company that are not expressly set forth or expressly reserved
therein.
c. No Oral Modification
This Agreement may not be modified, altered or changed except by a written
agreement signed by the parties hereto.
d. Meaning of "the Company"
As used in this Agreement, Xxxxxxx'x duties and covenants to "the Company"
shall include Spartech Corporation and its affiliates, including, but not
limited to Vita International Limited.
e. Severability
If any provision of this Agreement is held to be invalid, the remaining
provisions shall remain in full force and effect.
f. Separate Execution
Separate copies of this document shall constitute original documents which
may be signed separately but which together will constitute one single
agreement. This Agreement will not be binding on any party, however, until
signed by all parties or their representatives.
g. Consent to Jurisdiction
Each party hereto hereby submits to the exclusive jurisdiction of each
state court of Missouri located in St. Louis County, and to the federal
courts located within the State of Missouri for the district which includes
St. Louis County for the resolution of any and all disputes relating to
this Agreement and the transactions contemplated hereby; and each party
consents to venue in any of such courts and agrees not to raise any
objection or defense that the same constitutes an inconvenient forum.
10. Independent Contractor
Xxxxxxx is an independent contractor and not an employee of the Company.
IN WITNESS WHEREOF, the undersigned have executed this Consulting Agreement
as of the date first above written.
s/XXXXX X. XXXXXXX
SPARTECH CORPORATION
By: s/XXXXXXX X. XXXXXXXX
Chairman of the Board, President and Chief
Executive Officer
