Contract
Exhibit
10.23
EMPLOYMENT
AGREEMENT
dated as
of November 22, 1999, between XXXXX
PLASTICS CORPORATION,
a
Delaware corporation (the "Corporation"), and XXXXX
XXXX XXXXXXX
(the
"Employee").
The
Employee is an employee of the Corporation and as such has substantial
experience that has value to the Corporation. The Corporation desires to
employ
the Employee, and the Employee desires to accept such employment, on the
terms
and subject to the conditions hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual covenants and obligations
hereinafter set forth, the parties hereto agree as follows:
1. Employment;
Effectiveness of Agreement.
Effective as of the date hereof (such date, the "Commencement Date," for
all
purposes hereof), the Corporation shall employ the Employee, and the Employee
shall accept employment by the Corporation, upon the terms and conditions
hereinafter set forth.
2. Term.
Subject
to earlier termination as provided herein, the employment of the Employee
hereunder shall commence on the Commencement Date and terminate on November
22,
2004. Such period of employment is hereinafter referred to as the "Employment
Period."
3. Duties.
During
the Employment Period, the Employee shall be initially employed by the
Corporation as Regional Sales Manager, and shall perform such duties and
services consistent with such position as may reasonably be assigned to the
Employee by the officers of the Corporation or their designees.
4. Time
to be Devoted to Employment.
Except
for vacation, absences due to temporary illness and absences resulting from
causes set forth in Section 6, the Employee shall devote the Employee's business
time, attention and energies on a full-time basis to the performance of the
duties and responsibilities referred to in Section 3. The Employee shall
not
during the Employment Period be engaged in any other business activity which,
in
the reasonable judgment of the officers of the Corporation, would conflict
with
the ability of the Employee to perform his or her duties under this Agreement,
whether or not such activity is pursued for gain, profit or other pecuniary
advantage.
5. Compensation;
Benefits; Reimbursement.
(a) Base
Salary.
During
the Employment Period, the Corporation shall pay to the Employee an annual
base
salary of $58,822.32, which shall be subject to review and, at the option
of
persons having authority regarding such matters at the Corporation, subject
to
increase (such salary, as the same may be adjusted from time to time as
aforesaid, being referred to herein as the "Base Salary"). The Base Salary
shall
be payable in such installments (but not less frequent than monthly) as is
the
policy of the Corporation with respect to employees of the Corporation at
substantially the same level of employment as the Employee.
(b) Bonus.
During
the Employment Period, the Employee shall be entitled to participate in all
bonus and incentive programs of the Corporation (the "Programs") generally
available from time to time to employees of the Corporation at substantially
the
same level of employment as the Employee, such participation to be in
substantially the same manner as the participation therein by such employees.
(c) Benefits.
During
the Employment Period, the Employee shall be entitled to such benefits (together
with the Programs, the "Benefit Arrangements") as are generally made available
from time to time to other employees of the Corporation at substantially
the
same level of employment as the Employee.
(d) Reimbursement
of Expenses.
During
the Employment Period, the Corporation shall reimburse the Employee, in
accordance with the policies and practices of the Corporation in effect from
time to time with respect to other employees of the Corporation at substantially
the same level of employment as the Employee, for all reasonable and necessary
traveling expenses and other disbursements incurred by him or her for or
on
behalf of the Corporation in connection with the performance of his or her
duties hereunder upon presentation by the Employee to the Corporation of
appropriate documentation therefor.
(e) Deductions.
The
Corporation shall deduct from any payments to be made by it to the Employee
under this Section 5 or Section 8 any amounts required to be withheld in
respect
of any Federal, state or local income or other taxes.
6. Disability
or Death of the Employee.
(a) If,
during the Employment Period, the Employee is incapacitated or disabled by
accident, sickness or otherwise (hereinafter, a "Disability") so as to render
the Employee mentally or physically incapable of performing the services
required to be performed under this Agreement for 90 days in any period of
360
consecutive days, the Corporation may, at any time thereafter, at its option,
terminate the employment of the Employee under this Agreement immediately
upon
giving the Employee notice to that effect, it being understood that upon
such
termination the Employee shall be eligible for the disability benefits provided
by the Corporation.
(b) If
the
Employee dies during the Employment Period, the Termination Date (as defined
below) shall be deemed to be the date of the Employee's death.
7. Termination.
(a) The
Corporation may terminate the employment of the Employee and all of the
Corporation's obligations under this Agreement (except as hereinafter provided)
at any time for "cause" by giving the Employee notice of such termination,
with
reasonable specificity of the grounds therefor. For the purposes of this
Section
7, "cause" shall mean (i) willful misconduct with respect to the business
and
affairs of the Corporation or any subsidiary or affiliate thereof,
insubordination or willful neglect of duties (other than neglect due solely
to
the Employee's illness or other involuntary mental or physical disability),
including the Employee's violation of any material Corporation policy, (ii)
material breach of any of the provisions of this Agreement or (iii) conviction
for a crime involving moral turpitude or fraud. A termination pursuant to
this
Section 7(a) shall take effect immediately upon the giving of the notice
contemplated hereby.
(b) The
Corporation may terminate the employment of the Employee and all of the
Corporation's obligations under this Agreement (except as hereinafter provided)
at any time during the Employment Period without "cause" by giving the Employee
written notice of such termination, to be effective 30 days following the
giving
of such written notice.
(c) The
Employee may terminate the employment of the Employee hereunder at any time
during the Employment Period by giving the Corporation at least 30 days'
prior
written notice of such termination, such termination to be effective on the
date
specified in such notice, whereupon all of the Corporation's obligations
hereunder shall terminate (except as hereinafter provided). For convenience
of
reference, the date upon which any termination of the employment of the Employee
pursuant to Section 6 or 7 hereof shall be effective shall be hereinafter
referred to as the "Termination Date."
8. Effect
of Termination of Employment.
(a) Upon
the
effective date of termination of the Employee's employment pursuant to Section
6, Section 7(a) or Section 7(c) hereof, neither the Employee nor the Employee's
beneficiaries or estate shall have any further rights under this Agreement
or
any claims against the Corporation arising out of this Agreement, except
the
right to receive, within 30 days of the Termination Date:
(i) the
unpaid portion of the Base Salary provided for in Section 5(a), computed
on a
pro rata
basis to
the Termination Date;
(ii) reimbursement
for any expenses for which the Employee shall not have theretofore been
reimbursed, as provided in Section 5(d); and
(iii) the
unpaid portion of any amounts earned by the Employee prior to the Termination
Date pursuant to any Benefit Arrangement; provided,
however,
unless
specifically provided otherwise in this Section 8, the Employee shall not
be
entitled to receive any benefits under a Benefit Arrangement that have accrued
during a fiscal year if the terms of such Benefit Arrangement require that
the
beneficiary be employed by the Corporation as of the end of such fiscal year.
(b) Upon
the
termination of the Employee's employment pursuant to Section 7(b), neither
the
Employee nor the Employee's beneficiaries or estate shall have any further
rights under this Agreement or any claims against the Corporation arising
out of
this Agreement, except the right to receive:
(i) the
unpaid portion of the Base Salary, computed on a pro rata
basis,
for the period from the Commencement Date until the first anniversary of
the
Termination Date, payable in such installments as the Base Salary was paid
prior
to the Termination Date; and
(ii) the
payments, if any, referred to in Sections 8(a)(ii) and (iii).
(c) The
Employee's obligations under Sections 9, 10 and 11 of this Agreement, and
the
Corporation's obligations under this Section 8, shall survive the termination
of
this Agreement and the termination of the Employee's employment hereunder.
9. Disclosure
of Information.
(a) From
and
after the date hereof, the Employee shall not use or disclose to any person,
firm, corporation or other business entity (other than any officer, director,
employee, affiliate or representative of the Corporation), except as required
in
connection with the performance of the Employee's duties under and in compliance
with the terms of this Agreement and as required by law or judicial process,
any
Confidential Information (as hereinafter defined) for any reason or purpose
whatsoever, nor shall the Employee make use of any of the Confidential
Information for the Employee's purposes or for the benefit of any person
or
entity except the Corporation or any subsidiary thereof.
(b) For
purposes of this Agreement, "Confidential Information" shall mean (i) the
Intellectual Property Rights (as hereinafter defined) of the Corporation
and its
subsidiaries and (ii) all other information of a proprietary nature relating
to
the Corporation or any subsidiary thereof, or the business or assets of the
Corporation or any such subsidiary, including, without limitation, books,
records, customer and registered user lists, vendor lists, supplier lists,
distribution channels, pricing information, cost information, marketing plans,
strategies, forecasts, financial statements, budgets and projections, other
than
information which is generally within the public domain at the time of the
receipt thereof by the Employee or at the time of use or disclosure of such
Confidential Information by the Employee other than as a result of the breach
by
the Employee of the Employee's agreement hereunder.
(c) As
used
herein, the term "Intellectual Property Rights" means all industrial and
intellectual property rights, including, without limitation, patents, patent
applications, patent rights, trademarks, trademark applications, trade names,
service marks, service xxxx applications, copyrights, copyright applications,
know-how, certificates of public convenience and necessity, franchises,
licenses, trade secrets, proprietary processes and formulae, inventions,
development tools, marketing materials, trade dress, logos and designs and
all
documentation and media constituting, describing or relating to the above,
including, without limitation, manuals, memoranda and records.
10. Restrictive
Covenants.
(a) The
Employee acknowledges and recognizes that during the Employment Period he
will
be privy to Confidential Information and further acknowledges and recognizes
that the Corporation would find it extremely difficult to replace the Employee.
Accordingly, in consideration of the premises contained herein and the
consideration to be received by the Employee hereunder (including, without
limitation, the severance compensation described in Section 8(b)(i), if any),
without the prior written consent of the Corporation, the Employee shall
not, at
any time during the employer/employee relationship between the Corporation
and
the Employee and for the one-year period after the termination of such
employer/employee relationship, (i) directly or indirectly engage in, represent
in any way, or be connected with, any Competing Business directly competing
with
the business of the Corporation or any direct or indirect subsidiary or
affiliate thereof within the state in which the Employee is employed or any
other state of the United States or any country other than the United States
in
which the Corporation is doing business, whether such engagement shall be
as an
officer, director, owner, employee, partner, affiliate or other participant
in
any Competing Business, (ii) assist others in engaging in any Competing Business
in the manner described in clause (i) above, (iii) induce other employees
of the
Corporation or any direct or indirect subsidiary or affiliate thereof to
terminate their employment with the Corporation or any such direct or indirect
subsidiary or affiliate or to engage in any Competing Business or (iv) induce
any entity or person with which the Corporation or any direct or indirect
subsidiary or any affiliate thereof has a business relationship to terminate
or
alter such business relationship. As used herein, "Competing Business" shall
mean any business involving the sale of products in any city or county in
any
state of the United States if such business or the products sold by it are
competitive, directly or indirectly, at the time of the Termination of
Employment with (A) the business of the Corporation or any direct or indirect
subsidiary thereof, (B) any of the products manufactured, sold or distributed
by
the Corporation or any direct or indirect subsidiary thereof or (C) any products
or business being developed or conducted by the Corporation or any direct
or
indirect subsidiary thereof.
(b) The
Employee understands that the foregoing restrictions may limit his ability
to
earn a livelihood in a business similar to the business of the Corporation
or
any subsidiary or affiliate thereof, but he or she nevertheless believes
that he
or she has received and will receive sufficient consideration and other benefits
as an employee of the Corporation and as otherwise provided hereunder to
justify
clearly such restrictions which, in any event (given his education, skills
and
ability), the Employee does not believe would prevent him or her from earning
a
living.
11. Right
to Inventions.
The
Employee shall promptly disclose, grant and assign to the Corporation for
its
sole use and benefit any and all inventions, improvements, technical information
and suggestions reasonably relating to the business of the Corporation or
any
subsidiary or affiliate thereof (collectively, the "Inventions") which the
Employee may develop or acquire during the period of the employer/employee
relationship between the Corporation and the Employee (whether or not during
usual working hours), together with all patent applications, letters patent,
copyrights and reissues thereof that may at any time be granted for or upon
the
Inventions. In connection therewith:
(a) the
Employee recognizes and agrees that the Inventions shall be the sole property
of
the Corporation, and the Corporation shall be the sole owner of all patent
applications, letters patent, copyrights and reissues thereof that may at
any
time be granted for or on the Inventions;
(b) the
Employee hereby assigns to the Corporation any rights the Employee may have
in
or acquire to the Inventions;
(c) the
Employee shall, at the expense of the Corporation, promptly execute and deliver
such applications, assignments, descriptions and other instruments as may
be
necessary or proper in the opinion of the Corporation to vest title to the
Inventions and any patent applications, patents, copyrights, reissues or
other
proprietary rights related thereto in the Corporation and to enable it to
obtain
and maintain the entire right and title thereto throughout the world;
(d) the
Employee recognizes and agrees that the Inventions to the extent copyrightable
shall constitute works for hire under the copyright laws of the United States;
and
(e) the
Employee shall render to the Corporation, at its expense, all such assistance
as
it may require in the prosecution of applications for said patents, copyrights,
reissues or other proprietary rights, in the prosecution or defense of
interferences which may be declared involving any said applications, patents,
copyrights or other proprietary rights and in any litigation in which the
Corporation may be involved relating to the Inventions.
12. Miscellaneous
Provisions.
(a) Entire
Agreement; Amendments.
This
Agreement and the other agreements referred to herein contain the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersede all prior agreements or understandings
between
the parties with respect thereto. This Agreement shall not be altered or
otherwise amended except pursuant to an instrument in writing signed by each
of
the parties hereto.
(b) Descriptive
Headings.
Descriptive headings are for convenience only and shall not control or affect
the meaning or construction of any provisions of this Agreement.
(c) Notices.
All
notices or other communications pursuant to this Agreement shall be in writing
and shall be deemed to be sufficient if delivered personally, telecopied,
sent
by nationally-recognized, overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if
to the
Corporation, to:
Xxxxx
Plastics Corporation
000
Xxxxxx Xxxxxx
X.X.
Xxx
000
Xxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxx
Telecopier:
(000) 000-0000;
with
a
copy to:
X’Xxxxxxxx
Graev & Karabell, LLP
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. X’Xxxxx, Esq.
Telecopier:
(000) 000-0000; and
(ii) if
to the
Employee, to him or her at:
Xxxxx
Xxxx Xxxxxxx
000
X.
Xxxx Xxxxx Xxxxx #0000
Xxxxxxx,
Xxxxxxxx 00000
All
such
notices and other communications shall be deemed to have been delivered and
received (A) in the case of personal delivery, on the date of such delivery,
(B)
in the case of delivery by telecopy, on the date of such delivery, (C) in
the
case of delivery by nationally-recognized, overnight courier, on the Business
Day following dispatch, and (D) in the case of mailing, on the third Business
Day following such mailing. As used herein, "Business Day" shall mean any
day
that is not a Saturday, Sunday or a day on which banking institutions in
New
York, New York are not required to be open.
(d) Counterparts.
This
Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
(e) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of
Indiana applicable to contracts made and performed wholly therein.
(f) Benefits
of Agreement; Assignment.
The
terms and provisions of this Agreement shall be binding upon and inure to
the
benefit of the parties hereto and their respective successors, assigns,
representatives, heirs and estate, as applicable. Anything contained herein
to
the contrary notwithstanding, this Agreement shall not be assignable by any
party hereto without the consent of the other party hereto.
(g) Waiver
of Breach.
The
waiver by either party of a breach of any provision of this Agreement by
the
other party must be in writing and shall not operate or be construed as a
waiver
of any subsequent breach by such other party.
(h) Severability.
In the
event that any provision of this Agreement is determined to be partially
or
wholly invalid, illegal or unenforceable in any jurisdiction, then such
provision shall, as to such jurisdiction, be modified or restricted to the
extent necessary to make such provision valid, binding and enforceable, or
if
such provision cannot be modified or restricted, then such provision shall,
as
to such jurisdiction, be deemed to be excised from this Agreement; provided,
however,
that
the binding effect and enforceability of the remaining provisions of this
Agreement, to the extent the economic benefits conferred upon the parties
by
virtue of this Agreement remain substantially unimpaired, shall not be affected
or impaired in any manner, and any such invalidity, illegality or
unenforceability with respect to such provisions shall not invalidate or
render
unenforceable such provision in any other jurisdiction.
(i) Remedies.
All
remedies hereunder are cumulative, are in addition to any other remedies
provided for by law and may, to the extent permitted by law, be exercised
concurrently or separately, and the exercise of any one remedy shall not
be
deemed to be an election of such remedy or to preclude the exercise of any
other
remedy. The Employee acknowledges that in the event of a breach of any of
the
Employee's covenants contained in Sections 9, 10 or 11, the Corporation shall
be
entitled to immediate relief enjoining such violations in any court or before
any judicial body having jurisdiction over such a claim.
(j) Survival.
Sections 8 through 11, this Section 12 and the defined terms used in any
section
referred to in this Section 12(j), shall survive the termination of the
Employee's employment on the Termination Date and the expiration of this
Agreement.
*
* * *
IN
WITNESS WHEREOF,
the
parties have duly executed this Employment Agreement as of the date first
above
written.
XXXXX
PLASTICS CORPORATION
By:
/s/ Xxxxx X. Xxxxxxxxxx
Xxxxx
X.
Xxxxxxxxxx
Executive
Vice President
|
Chief
Financial Officer, Treasurer
|
|
and
Secretary
|
/s/
Xxxxx
Xxxx Xxxxxxx
Xxxxx
Xxxx Xxxxxxx
