EXECUTIVE EMPLOYMENT AND NON-COMPETITION AGREEMENT
Exhibit
10 (iii) A
AGREEMENT
made this _____ day of June 2009, effective as of January 1, 2009, by and
between Xxxxxxx Components Manufacturing, Inc., a Delaware corporation (“LCM”),
Kinro Manufacturing, Inc., a Delaware corporation (“Kinro,” and together with
LCM, the “Corporations”) and Xxxxx X. Xxxxxxxx (the
“Executive”).
W
I T N E S S E T H:
WHEREAS,
on January 30, 2008, LCM and the Executive entered into a compensation
arrangement for the period January 1, 2008 through December 31, 2010 (“the
Existing Arrangement”); and
WHEREAS,
in addition to his duties as Executive Vice President and Chief Operating
Officer of Xxxxxxx Components, Inc., (“LCI”), parent of LCM, and all other
entities of which LCI is a direct or indirect parent or partner, excluding
Xxxxxxx Holding, Inc., collectively, (the “LCI Entities”), Drew Industries
Incorporated (“Drew”), parent of LCI, desires that the Executive’s
responsibilities be expanded to include the operations conducted by Kinro, and
all other entities of which Kinro is a direct or indirect parent or partner,
excluding Kinro Holding, Inc. (collectively, the “Kinro Entities”), and the
Executive desires to assume such additional responsibilities; and
WHEREAS,
the Corporations and Drew do not wish the Executive to compete against the LCI
Entities or the Kinro Entities,
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is agreed as follows:
1. Employment. The
Corporations hereby employ the Executive and the Executive hereby agrees to
serve the LCI Entities as Executive Vice President and Chief Operating Officer
and to serve the Kinro Entities as Vice President. The Executive will perform
his duties on behalf of the LCI Entities and the Kinro Entities at the principal
executive offices of LCM in Goshen, Indiana. Relocation of LCM’s
executive offices shall be subject to approval of the Board of Directors of
Drew, and the Executive shall at no time be required to change the locale of his
residence without his consent.
2. Term. The
term of this Agreement shall be three (3) years commencing January 1, 2009 and
terminating December 31, 2011 (the “Term”).
3. Duties. During
the Term, the Executive shall exert his best efforts and, subject to the terms
and provisions hereof, shall devote substantially all of his time, attention,
skills and efforts to the business and affairs of the LCI Entities and the Kinro
Entities and will use his best efforts to promote the interests thereof.
Consistent with the foregoing, the Executive shall not be precluded from giving
appropriate attention to his personal and financial affairs. The Executive shall
act in accordance with the policies of the LCI Entities and the Kinro Entities
as determined from time-to-time by their respective Boards of Directors
consistent with this Agreement, and shall perform such services and duties as
such Boards of Directors may from time-to-time direct consistent with this
Agreement.
4. Compensation. The
Corporations agree to pay the Executive for his services hereunder a salary
(“Base Salary”) of Four Hundred Twenty Thousand ($420,000) Dollars annually
during the Term, payable $360,000 in cash according to the customary payroll
practices of the Corporations and $60,000 in Deferred Stock Units representing
shares of Common Stock of Drew (“DSUs”), deliverable in four quarterly
installments each representing shares equivalent in value to $15,000 based on
the closing market price of Drew Common Stock on the last trading day of the
calendar quarter for which payment is made.
5. Performance-based Incentive
Compensation.
5.1 In
addition to the Base Salary, and subject to Sections 5.6 and 5.7 hereof, the
Executive shall be entitled to receive, for each year during the Term,
commencing with the year ending December 31, 2009, performance-based profit
incentive compensation (the “Profit Bonus”) as follows:
5.1.1 An
amount equal to two and one-quarter (2.25%) percent of the Operating Profits (as
defined herein) of the LCI Entities and the Operating Profits of the Kinro
Entities combined (the “Combined Profits”) in excess of $35,000,000 and up to
$50,000,000; plus
5.1.2 An
amount equal to two and fifty five hundredths (2.55%) percent of the Combined
Profits in excess of $50,000,000 and up to $65,000,000; plus
5.1.3 An
amount equal to three (3%) percent of the Combined Profits in excess of
$65,000,000; plus
5.2 Performance-based
industry-comparable incentive compensation (the “Industry Bonus”) consisting of
the following: There will be added to, or subtracted from, the Profit Bonus the
amount of $12,000 for each one (1%) percent that the percentage increase or
decrease in the Combined Profits for any year during the Term, as compared to
the immediately preceding calendar year, exceeds or is less than two and
one-half times (2.5x) the Index of Number of Industry Units Sold (as defined
herein) during such year; provided, however, that (i) for purposes of
calculating the Industry Bonus, the Combined Profits shall be determined without
giving effect to any charge for impairment of goodwill or other intangibles or
to the 2008 executive retirement charge, and (ii) the Industry Bonus for any
year during the Term shall not exceed nine-tenths (0.9%) percent of the Combined
Profits.
5.3 With
respect to the Profit Bonus and the Industry Bonus, if any, of the LCI Entities
or the Kinro Entities shall acquire additional business operations, or dispose
of existing business operations, the performance goals pursuant to which the
Profit Bonus and the Industry Bonus are paid will be modified, consistent with
the Corporations’ past practices, to give effect to such acquisition or
disposition; plus
5.4 Subject
to Section 5.6 hereof, performance-based return on assets (“ROA”) incentive
compensation (the “ROA Bonus”) consisting of the following:
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For each
year during the Term that the LCI Entities and the Kinro Entities achieve the
combined Return on Assets (as defined herein) indicated, the Executive will
receive the following amounts:
5.4.1 For
2009, if the ROA is at least 20%, the Executive will receive $75,000, which
amount will increase at the pro-rata rate of $18,000 per one (1%) percent
increase in the ROA in excess of 20%; and
5.4.2 For
2010, if the ROA is at least 21%, the Executive will receive $93,000, which
amount will increase at the pro-rata rate of $18,000 per one (1%) percent
increase in the ROA in excess of 21%; and
5.4.3 For
2011, if the ROA is at least 22%, the Executive will receive $111,000, which
amount will increase at the pro-rata rate of $18,000 per one (1%) percent
increase in the ROA in excess of 22%;
5.5 For
purposes of this Agreement:
5.5.1 The
term “Operating Profits” of the LCI Entities and the Kinro Entities means the
consolidated income of the LCI Entities and the Kinro Entities calculated before
(i) interest expense, (ii) interest or dividend income, (iii) intercompany
administrative fees charged by Drew to any of the LCI Entities or the Kinro
Entities, (iv) taxes based upon income, (v) extraordinary items determined in
accordance with generally accepted accounting principles, (vii) the cumulative
effect of a change in accounting principles, and (vii) expenses related to
litigation pending the date hereof involving products manufactured by the Kinro
Composites division of Kinro.
5.5.2 The
term “Net Assets” means: (i) total assets, excluding cash, minus (ii) total
liabilities, excluding (a) current and long-term debt, (b) intercompany
balances, (c) income taxes payable or deferred, and (d) accrual for retirement
expense of the former CEO of Kinro, all as reflected on the monthly
Consolidating Balance Sheet of Drew and its subsidiaries; and
5.5.3 The
term “Combined Net Assets” means the Net Assets of the LCI entities and the Net
Assets of the Kinro Entities combined.
5.5.4 The
term “Return on Assets” means the Combined Profits divided by the Combined Net
Assets employed by the LCI Entities and the Kinro Entities.
5.5.5 The
term “Index of Number of Industry Units Sold” means, for any year, the
percentage change from the prior year in the weighted average of (i) the annual
wholesale shipments of travel trailer and fifth wheel travel trailers as
reported by the Recreational Vehicle Industry Association (“RVIA”), (ii) the
annual wholesale shipments of motorhomes as reported by the RVIA, and (iii)
the annual wholesale production of manufactured homes as reported by
the Institute for Building Technology and Safety. The annual
shipments or production determined in clauses (i), (ii), and (iii) shall be
weighted based on the relative net sales by the Combined Entities of components
for the products described in clauses (i), (ii) and (iii).
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5.6 If
the LCI Entities or the Kinro Entities record a charge for impairment of
goodwill or other intangibles (“Impairment Charge”) for any year during the
Term, then
5.6.1 each
of the Profit Bonus and the ROA Bonus for such year will be calculated (i)
without giving effect to the Impairment Charge, and (ii) after giving effect to
the Impairment Charge. The excess, if any, of the amount calculated
in clause (i) over the amount calculated in clause (ii) is the “Current Year
Impairment Impact,” and
5.6.2 the
amount of Profit Bonus and ROA Bonus for such year will be determined without
giving effect to any Impairment Charge, there will be deducted from such amount
one-third of the Current Year Impairment Impact, and the balance of two-thirds
of the Current Year Impairment Impact will be carried forward (the “Impairment
Carryforward”); and
5.6.3
one-half of the Impairment Carryforward up to the aggregate amount of the Profit
Bonus and ROA Bonus will be deducted from the next Profit Bonus and ROA Bonus
earned by the Executive, and the balance of the Impairment Carryforward will be
deducted from the Profit Bonuses and ROA Bonuses next earned by the Executive
until the Impairment Carryforward is depleted in its entirety.
5.7 Notwithstanding
anything to the contrary contained herein, the following shall apply to payment
of the Profit Bonus, the Industry Bonus and the ROA Bonus (collectively, the
“Total Performance Bonus”):
5.7.1 The
Total Performance Bonus shall be paid from, and applied against, the annual
incentive compensation bonus pools established for the employees of the LCI
Entities and the Kinro Entities; provided, however, that the amount of Total
Performance Bonus earned for any year during the Term which cannot be paid from
the bonus pools for such year shall be paid from the bonus pools established for
the next succeeding year or years.
5.7.2 For
any year during the Term, the first $100,000 of Total Performance Bonus will be
paid in cash; 33% of the Total Performance Bonus in excess of $100,000 (the
“Excess Bonus”) will be paid in DSUs of Drew (“Incentive DSUs”); and 67% of the
Excess Bonus will be paid in cash.
5.7.3 Election
by the Executive to defer receipt of the shares of stock deliverable pursuant to
any Deferred Stock Units delivered pursuant to this Agreement must be for a
period of not less than three years from the date the Deferred Stock Units are
issued, and must be made, on the form annexed hereto as Exhibit A, in December
of each year preceding the year for which the Excess Bonus could be
earned.
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5.7.4 The
Total Performance Bonus for any year during the Term may not exceed 4.8% of
Combined Profits.
5.7.5.
All cash payments and grants and issuances of Incentive DSUs, shall be made on,
or as soon as practicable after, the date on which the Compensation Committee
approves the determination of the Total Performance Bonus following Drew’s
release of its year-end results of operations, but in no event later than two
and one-half months after the end of Drew’s fiscal year.
5.8 Nothing
in this Agreement, nor any fixing of compensation in the form of Base Salary,
Total Performance Bonus, deferred compensation, securities, or otherwise, shall
prevent the Compensation Committee from granting to the Executive additional
compensation in the form of cash, salary increases, deferred compensation,
securities or otherwise.
6. Compliance.
6.1 The
Corporations and the Executive intend that the provisions of this Agreement
shall comply in all respects with the requirements of section 409A of the
Internal Revenue Code of 1986, as amended (the “Code). Accordingly,
notwithstanding anything in this Agreement to the contrary, all elections to
defer, distributions, and all other aspects of this Agreement, shall be made in
compliance with Section 409A of the Code and any regulations or other guidance
thereunder. To the extent required, this Agreement will be revised
and amended in order to comply with the provisions of Section 409A of the Code,
as amended from time to time, and any regulations or guidance thereunder as
described in Notice 2008-13 or other guidance thereunder.
6.2 In
no event shall the Executive receive any awards which are deemed to be deferred
compensation under the provisions of Section 409A of the Code, unless all
aspects of such awards meet the requirements of Section 409A of the
Code.
6.3 All
compensation, in whatever form, payable pursuant to this Agreement shall be
subject in all respects to the terms, provisions and conditions of the Drew
Industries Incorporated 2002 Equity Award and Incentive Plan, as amended from
time to time.
6.4 Notwithstanding
anything herein to the contrary, if at the time of the Executive’s “Separation
From Service” (as hereinafter defined) the Executive shall be a “specified
employee” (within the meaning of Treasury Regulation 1.409A-1(i)), as determined
in a uniform manner by the Corporation, and the Corporation makes a good faith
determination that an amount payable hereunder constitutes deferred compensation
(within the meaning of Section 409A of the Code), such amount payable to the
Executive shall not be paid or commence until the first business day after six
months following the Executive’s “Separation From Service” (or if earlier upon
his death). The term “Separation From Service” shall mean the
Executive’s termination of active employment, whether voluntary or involuntary
(other than by death) with the Corporations or any of their affiliated companies
within the meaning of Treasury Regulation 1.409A-1(h). The
Corporations will determine whether the Executive has terminated active
employment (and incurred a Separation From Service) based upon facts and
circumstances described in Treasury Regulation
1.409A-1(h)(1)(ii). The Executive shall incur a Separation From
Service if the Corporations and the Executive reasonably anticipate that the
Executive will not perform any additional services after a certain date or that
the level of bona fide services (as an employee or an independent contractor)
will permanently decrease to no more than twenty (20%) percent of the average
level of bona fide services performed over the immediately preceding 36-month
period. The provisions of this Section 6.4 shall only apply if, and
to the minimum extent, necessary to comply with Section 409A of the Code, to
avoid the Executive’s incurrence of any additional taxes or penalties under
Section 409A.
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7. Benefits.
7.1 The
Executive and his immediate family shall continue to receive medical coverage at
least equivalent, in nature and extent, to the medical coverage afforded to him
by LCM prior to the date hereof, and such other reasonable benefits which he has
received from LCM prior to the date hereof.
7.2 The
Executive agrees to have an annual comprehensive physical examination at the
expense of the Corporations (to the extent not covered by insurance) by a
physician of his choice.
7.3 The
Executive shall be eligible to participate in any pension, retirement, or
profit-sharing plan adopted by the LCI Entities for the benefit of its
executives. Each year during the Term, the Executive shall be
entitled to receive $25,000 pursuant to Drew’s supplemental restricted bonus
program, payable in the year earned, that must be used to purchase a tax
deferred annuity and/or cash value life insurance.
7.4 The
Corporations shall maintain, at no cost to the Executive, disability insurance
providing for weekly payments to the Executive, in the event the Executive shall
fail or be unable to perform his obligations hereunder, in the amount of not
less than $120,000 per year. Such payments shall continue for the maximum
available term after the commencement of disability.
7.5 During
the period of employment hereunder, the Corporations, at their expense, will
make available to the Executive one automobile (or an automobile allowance in
accordance with Corporations’ automobile policy), together with gasoline,
customary insurance, maintenance, license fees, and parking, to be used in
connection with the business of the LCI Entities and the Kinro
Entities.
7.6 The
Executive shall be entitled to a vacation in each year during the Term of not
less than three (3) weeks.
7.7 Each
year during the Term, the Corporations will recommend that the Compensation
Committee grant to the Executive options to purchase additional shares of Drew
Common Stock, or other equity awards of equivalent value, subject to the
discretion of the Compensation Committee.
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8. Expenses. All
travel and other expenses incident to the rendering of services by the Executive
hereunder in accordance with the travel policies of the LCI Entities and the
Kinro Entities will be paid by the Corporations. If any such expenses
are paid in the first instance by the Executive, the Corporations will reimburse
him therefore on presentation of expense vouchers.
9. Termination.
9.1 If,
on account of physical or mental disability, the Executive shall fail or be
unable to fully perform this Agreement for a continuous period of six (6)
months, the Corporations may, at their option, at any time thereafter, upon
thirty (30) days written notice to the Executive, terminate this Agreement, and
this Agreement shall come to an end at the end of said notice period as if such
date were the termination date of this Agreement. Notwithstanding the
termination of the period of employment as aforesaid, the Corporations shall (i)
pay the Total Performance Bonus to the Executive proportionately with respect to
the period prior to the date of termination, (ii) for a period of six (6)
months, pay to the Executive the difference between the Base Salary and the
amount of disability payments received by the Executive pursuant to disability
insurance provided in accordance with this Agreement, and (iii) shall deliver,
as soon as practicable, the shares of stock deliverable pursuant to any
outstanding Deferred Stock Units awarded to the Executive.
9.1.1 “Disability”
shall mean a condition of the Executive whereby he either: (i) is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less
than twelve (12) months, or (ii) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve (12)
months, receiving income replacement benefits for a period of not less than
three (3) months under an accident and health plan covering employees of the
Corporations. The Corporations will determine whether the Executive
has incurred a Disability based on its own good faith determination and may
require the Executive to submit to reasonable physical and mental examinations
for this purpose.
9.2 In
the event of the death of the Executive during the Term, this Agreement shall
terminate on the date of death. In such case, the Corporations shall continue to
pay to the heir or designee of the Executive (i) the Base Salary, which the
Executive would have been entitled to receive but for such termination, for a
period of six (6) months from the date of death of the Executive, and (ii) the
Total Performance Bonus proportionately with respect to the period prior to the
date of termination; and all shares of stock deliverable pursuant to outstanding
DSUs awarded to the Executive will be delivered, as soon as practicable, to the
heir or designee of the Executive.
9.3 The
Corporations shall have the right to terminate this Agreement at any time upon
ten (10) days written notice to the Executive in the event that (i) the
Executive has committed a willful material breach of the terms of this Agreement
and such breach shall continue for a period of ten (10) days after notice
specifying the nature of the breach, or (ii) the Executive is convicted of, or
pleads nolo contendre to, any felony or crime involving moral
turpitude. In such event, this Agreement shall come to an end as of
the end of such notice period as if such date were the termination date of this
Agreement.
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9.4 In
the event the Corporations do not give notice to the Executive prior to June 30,
2011 of their intention to continue the Executive’s employment and renew the
Term, this Agreement shall expire pursuant to its terms. In such event, and the
Executive shall be entitled to receive the Base Salary provided in Section 4
hereof and the benefits provided in Section 7 hereof for the one-year period
from January 1, 2012 to December 31, 2012; provided, however, that if the
Corporations do not continue the Executive’s employment for cause as set forth
in Section 9.3 hereof, the Corporations shall have no obligation to pay the Base
Salary or provide the benefits as aforesaid.
10. Non-Competition-Corporate
Property-Confidential Information
10.1 During
the Term, and (i) for a period of five (5) years from the date of (a) expiration
of this Agreement, or (b) termination of this Agreement by the Corporations for
cause as set forth in Section 9.3 hereof, or (c) termination of this Agreement
by the Executive; or (ii) for a period of two (2) years from the date of
termination of this Agreement by the Corporations for other than cause as set
forth in Section 9.3 hereof (the “Restricted Period”), the Executive will not,
directly or indirectly, undertake or perform services in or for, or render
services to, participate in, or have financial interest in, or engage in, any
business competitive to that of the business of the LCI Entities, the Kinro
Entities or Drew (collectively, the “Affiliated Companies’) or solicit for
employment or employ any employee of the Affiliated Companies. For
purposes hereof, a business shall be deemed competitive if it is conducted in
any geographic or market area in which any of the Affiliated Companies are
engaged in business during the Restricted Period and involves the development,
design, manufacture, marketing, packaging, sale or distribution of any products
developed, designed, manufactured, sold or distributed, or the offering of any
services offered, by any of the Affiliated Companies, whether on the date hereof
or as of the termination or expiration date of this Agreement including, but not
limited to, products for the manufactured housing (including park and office
models), modular housing, recreational vehicle, and boat and other specialty
utility trailer, industries; and the Executive will be deemed directly or
indirectly to engage in such business if the Executive, or any member of his
immediate family participates in such business, or in any entity engaged in or
which owns such business, as an officer, director, employee, consultant,
partner, individual proprietor, manager or as an investor who has made any
loans, contributed to capital stock or purchased any stock; the Executive will
not, at any time, utilize any tradenames or corporate names used by the
Affiliated Companies, or any derivatives of such names, in any business
competitive to that of the business of the Affiliated Companies, nor any patent,
trademark, tradename, service xxxx, logo, copyright or similar intellectual
property, whether or not registered, of any of the Affiliated
Companies. The foregoing, however, shall not be deemed to prevent the
Executive from investing in securities if such class of securities in which the
investment is made is listed on a national securities exchange or is of a
company registered under Section 12(g) of the Securities Act of 1934 and, if the
company in which such investment is made competes with any of the Affiliated
Companies, such investment represents less than one (1%) per cent of the
outstanding securities of such class.
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10.2 The
Executive agrees that all products, packaging, inventions, patents, patent
applications, designs, creations, ideas, techniques, methods, or any portions
thereof, or any improvements or modifications thereon, or any know-how or
procedures related thereto, which relate to the business of the Affiliated
Companies, conceived, invented, discovered or executed by the Executive, whether
or not marketed or utilized by the Affiliated Companies, shall be sole and
exclusive property of the Affiliated Companies, without additional compensation
payable thereof; and by these presents the Executive hereby assigns to the
Corporations any and all right, title and interest he has, or may have,
therein.
10.3 The
Executive acknowledges and agrees that during, and as a consequence of
employment with the Corporations, he has learned confidential, proprietary and
trade secret information of and about the Affiliated Companies, and has had
access to and has been involved in the development and utilization of the
Affiliated Companies’ confidential and proprietary business information.
“Confidential Information” means information about the Affiliated Companies in
whatever form disclosed or known to the Executive as a consequence of his
employment by the Corporations which relates to the Affiliated Companies’
business, products, processes, or services that gives them a competitive
advantage in the marketplace, including, but not limited to: (a) any information
that would be considered a trade secret within the meaning of applicable Federal
or state law; (b) information relating to any of the Affiliated Companies’
existing products or services or products or services under development; (c)
information relating to the Affiliated Companies’ business dealings with
customers or suppliers; (d) confidential customer or prospective customer lists;
(e) sales-prices, costs, and profit margins; (f) confidential marketing and
advertising programs; (g) financial information; (h) sales performance and
strategies; (i) human resources strategies; (j) merger and acquisition plans;
and (k) proprietary software or processes utilized by the Affiliated
Companies. Confidential Information does not include information that
the Executive proves was generally known and readily available to the Affiliated
Companies’ competitors through legitimate means. The Executive agrees
that he will not, either during the Term or at any time after the termination or
expiration of this Agreement, disclose to anyone (except as authorized by the
Corporations in furtherance of its business), publish, or use in competition
with the Affiliated Companies, any of their Confidential
Information. The Executive further agrees to abide by all rules or
regulations the Corporations may implement from time to time to further protect
their Confidential Information.
11. Notices.
11.1 All
notices and other communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly given upon receipt) by delivery in
person, telegram, facsimile or other standard form of telecommunication, or by
registered or certified post-paid mail, return receipt requested, and addressed
as follows, or to such other address as any party may notify the other in
accordance with the provisions hereof:
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To
the Corporations:
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c/x
Xxxxxxx Components, Inc.
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0000
Xxxxxxx Xxxxxx
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Xxxxxx,
Xxxxxxx00000
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Attention: Chairman
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Telephone: (000)
000-0000
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Telecopy: (000)
000-0000
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-copy
to-
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Drew
Industries Incorporated
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000
Xxxxxxxxxx Xxxxxx
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Xxxxx
Xxxxxx, Xxx Xxxx 00000
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Attention:
President and CEO
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
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To
the Executive:
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Xxxxx
X. Xxxxxxxx
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12. Additional
Provisions.
12.1 This
Agreement constitutes the entire Agreement between the parties, and there are no
terms other than those contained herein. No variation hereof shall be deemed
valid unless in writing and signed by the parties hereto, and no discharge of
the terms hereof shall be deemed valid unless by full performance by the parties
hereto, or by a writing signed by the parties hereto.
12.2 This
Agreement shall inure to the benefit of and be binding upon the Corporations,
their successors and assigns, and the Executive, his heirs, executors,
administrators and legal representatives.
12.3 This
Agreement shall not be terminated, voluntarily or involuntarily, by the
liquidation or dissolution of the Corporations or by the merger or consolidation
of the Corporations with or into another corporation.
12.4 Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law. If any provision of
this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision, or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provisions had
never been contained herein.
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12.5 This
Agreement shall be governed by the internal laws of the State of Indiana without
giving effect to principles of conflicts of law. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the United States
District Court located in Indianapolis, Indiana over any suit, action or
proceeding arising out of or relating to this Agreement. Each party
hereby irrevocably waives to the fullest extent permitted by law, (i) the right
to a trial by jury; (ii) any objection that they may now or hereafter have to
the venue of any such suit, action or proceeding brought in any such court; or
(iii) any claim that any such suit, action or proceeding has been brought in an
inconvenient forum. Final judgment in any suit, action or proceeding brought in
any such court shall be conclusive and binding upon each party duly served with
process therein and may be enforced in the courts of the jurisdiction of which
either party or any of their property is subject, by a suit upon such
judgment.
12.6 This
Agreement may be executed in one or more counterparts, each of which shall be an
original, but all of which shall be deemed to be one and the same
instrument.
12.7 In
the event of any proceeding involving a claim or dispute arising under this
Agreement, the prevailing party (by motion, on the merits, or otherwise) shall
be entitled to recover, in addition to any remedy awarded in such proceeding,
all costs and expenses, including actual attorneys fees, incurred by the
prevailing party in such proceeding.
12.8 The
headings of this Agreement are for the convenience of reference only and shall
not affect in any manner any of the terms and conditions hereof.
(Signature
Page Follows)
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IN
WITNESS. WHEREOF,
the Corporations have caused these presents to be signed by their duly
authorized officers, and the Executive has hereunto set his hand the day and
year first above written.
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XXXXXXX
COMPONENTS MANUFACTURING,
INC.
By:_________________________________
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KINRO
MANUFACTURING, INC
By:_________________________________
_______________________________
Xxxxx
X. Xxxxxxxx
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