EXHIBIT 10.7
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EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is made and entered
into as of the 13th day of July, 2000, by and between Xxxxxx X.
Xxxxxxxxx, Xx. ("Employee") and Triple S Plastics, Inc., a Michigan
corporation (the "Company").
WITNESSETH:
WHEREAS, the Company has entered into an Agreement and Plan of
Merger, dated as of July 13, 2000 (the "Merger Agreement"), with Eimo
Oyj, a company organized under the laws of the Republic of Finland
("Parent") and Spartan Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), pursuant to which
Merger Sub shall be merged with and into the Company, with the Company
being the surviving corporation in such merger (the "Merger");
WHEREAS, Employee has a significant equity position in the
Company which will be converted into a significant equity position in
Parent upon consummation of the Merger, at which point the Company
will become a wholly-owned subsidiary of Parent;
WHEREAS, as a result of Employee's status as a senior executive
of the Company and as a major equity holder of Parent upon
consummation of the Merger, the Merger Agreement provides that,
simultaneously with the execution and delivery of the Merger
Agreement, the Company and Employee shall have entered into this
Agreement providing for the continued employment of Employee by the
Company following the consummation of the Merger on the terms and
conditions set forth herein; and
WHEREAS, Employee is willing to accept such continued employment
with the Company in accordance with the terms and conditions
hereinafter set forth;
NOW, THEREFORE, for and in consideration of the above premises,
the mutual covenants and agreements hereinafter set forth and other
good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, and subject to the consummation of
the Merger, the parties hereto covenant and agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) Subject to the terms and conditions set forth in this
Agreement, the Company shall employ Employee, and Employee shall serve
the Company, as Executive Vice President.
(b) At all times during the term hereof, Employee shall,
for the benefit of the Company, use his skills, knowledge and
specialized training to perform the duties and exercise the powers,
functions and discretions incident to his office or which from time to
time, consistent with such position may be assigned to or vested in
him by the board of directors of the Company (the "Board"), in an
efficient and competent manner and on such terms and subject to such
restrictions as the Board may from time to time impose.
(c) At all times during the term hereof, Employee shall
during working hours, devote the whole of his time, attention and
ability to his duties hereunder at the Company's offices in Kalamazoo
County, Michigan (except for reasonable travel in connection with the
exercise of such duties), and Employee shall not be required to
relocate to any other location.
(d) At all times during the term hereof, Employee shall
comply with all reasonable requests, instructions and regulations made
by the Board and give to Company such explanations, information and
assistance as the Board may reasonably require.
(e) At all times during the term hereof, Employee shall
faithfully serve the Company to the best of his ability and use his
best efforts to promote the interests of the Company.
(f) At all times during the term hereof, Employee agrees to
be a full-time employee of the Company and to devote his full and
exclusive time, energy and skill to the business of the Company, and
to the fulfillment of Employee's obligation under this Agreement. In
addition to the foregoing and not in limitation thereof, during the
term hereof, Employee shall not carry on, engage in, or otherwise be
interested in, directly or indirectly, any other business or activity
that is competitive with the activities and business of the Company,
that is of a nature similar to the Company's business, that would
result in a conflict of interest with the Company's business, or that
would materially affect Employee's ability to perform his duties as
set forth in this Agreement. Moreover, Employee shall not take part
in any activities detrimental to the Company's best interest. Nothing
in this subsection (f) shall preclude Employee from serving as a
director of other corporations in accordance with subsection (g)
below.
(g) Employee may serve as an outside director on a maximum
of three (3) boards of directors; provided, however, that the
directorships are disclosed to the Board and that such service does
not constitute a conflict of interest or otherwise materially affect
Employee's ability to perform his duties under this Agreement. Any
new directorships commencing after the Effective Time must be approved
by the Board of Directors, which approval will not be unreasonably
withheld. In the event the Board determines Employee's service as an
outside director fails to satisfy any of the provisions of this
subsection, it shall notify Employee of the issue and its
determination in writing, and Employee shall thereafter have ninety
(90) days in which to remedy the issue. It is understood that service
on the boards of affiliated or related entities shall constitute
service on only one board of directors for purposes of this provision.
This provision shall in no way limit Employee from serving as a
director of any non-profit or charitable organization.
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2. TERM.
As of the date hereof, Employee is employed by the Company.
Employee's existing employment arrangements with the Company are
expected to continue until the Effective Time (as defined in the
Merger Agreement). Thereafter, Employee's term of employment pursuant
to this Agreement shall commence, and, unless earlier terminated as
set forth herein, shall end on the second (2nd) anniversary of the
Effective Time. In the event the Merger Agreement is terminated for
any reason, this Agreement will simultaneously be terminated and shall
have no force and effect. Either the Company or Employee may
terminate Employee's employment under this Agreement at any time by
two weeks prior written notice to the other. Employee acknowledges and
agrees that after the Company's receipt of any notice of termination
from the Employee, the Company may, at its sole option, elect an
earlier effective date for the termination of Employee's employment by
giving written notice of such earlier date to Employee at any time
prior to the date of termination initially established by Employee,
provided, however, that any post termination payments or benefits due
shall be measured from the date Employee initially established for
termination.
3. COMPENSATION AND BENEFITS.
(a) Subject to the terms of this Agreement, as base
compensation for Employee's services, the Company shall pay Employee
from the Effective Time until March 31, 2001, the same base salary
that Employee is currently receiving as of the date of execution of
this Agreement (the "Initial Base Salary") payable monthly; from April
1, 2001, for the balance of the term of this Agreement, the Company
shall pay Employee a base salary at a rate of 70% of the Initial Base
Salary, payable monthly; it being agreed, however, that Employee's
salary shall be subject to all withholdings pursuant to applicable law
or regulation. Employee's base salary shall be payable to Employee on
the regularly reoccurring pay period established by the Company, but
in no event in less than bi-weekly installments.
(b) In addition to the base salary provided in subsection
(a) above, (i) for the fiscal year ending March 31, 2001, Employee
shall receive an incentive bonus payable in accordance with the terms
of the Company's Share the Success Plan, as in effect on the date of
this Agreement; and (ii) for each fiscal year beginning on and after
April 1, 2001, Employee shall receive an incentive bonus to be based,
calculated and declared by the Board as it may in its discretion
determine; provided, however, that the maximum bonus that may be paid
pursuant to subsection (b)(ii) above shall be 30% of the base salary
for the applicable bonus period. Any bonus paid hereunder shall be
subject to all withholdings pursuant to applicable law or regulation.
(c) Employee hereby acknowledges that Employee may be
required to work beyond standard working hours in order to perform his
duties hereunder. Employee shall not be entitled to compensation for
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overtime or extra hours worked in performance of his duties hereunder
except as required by law.
(d) In addition to the compensation described in this
Agreement, Employee shall be entitled to reimbursement by the Company
for all actual, reasonable and direct expenses incurred by him in the
performance of his duties hereunder, provided such expenses are
properly characterized as being business expenses, and further
provided that such expenses were incurred only in accordance with the
policies and procedures established by the Company from time to time.
Employee shall provide the Company with written documentation of such
expenses in form complying with the records required of the Company by
the Internal Revenue Service and appropriate state authorities for tax
deductibility purposes in such cases, and reimbursement for each item
of approved expense shall be made within a reasonable time after
receipt by Company of the written documentation thereof.
(e) Employee shall have the right to participate in any and
all employee benefit programs established or maintained by the Company
from time to time, in accordance with the terms and conditions of such
employee benefit programs, including, without limitation, such medical
or dental plans as may be established from time to time by the
Company. To the extent Employee participates in such programs,
Employee shall be subject to the terms and conditions set forth
therein. In no event shall the level of benefits be decreased, except
when such benefits are decreased for all executive officers of the
Company on the same basis. Benefits shall include the following:
(i) Participation in the Company's health,
hospitalization, medical and dental insurance programs for
Employee, his spouse, and legal dependents, subject to and in
accordance with applicable laws.
(ii) Participation in any Company retirement and/or
pension program in which any of the Company's executive officers
participate.
(iii) Long term and short term disability insurance at
levels applicable to the Company's executive officers, fully paid
by the Company.
(iv) Four (4) weeks annual paid vacation, plus such
paid time off and holidays as are provided to all executive and
management personnel.
(v) All membership dues, initiation fees, and other
dues and fees in connection with Employee's membership in the
Kalamazoo Country Club and the Beacon Club. In addition, the
Company shall reimburse Employee for all reasonable entertainment
expenses and costs Employee incurs for the benefit of the Company
in connection with such memberships, in accordance with the
Company's policies and practices.
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(vi) Life insurance in the amount two million dollars
($2,000,000); the beneficiary of such insurance shall be
designated by Employee.
(vii) Participation in the Company's Share the Success
Plan through March 31, 2001, and thereafter in any incentive
bonus program made available by the Company.
(viii) Participation in the Company's non-qualified
Salary-Reduction Deferred Compensation Plan; provided that the
annual Company contribution made on Employee's behalf shall not
be less than the contribution made on Employee's behalf for the
fiscal year ended March 31, 2000.
(ix) All membership dues in one airline club.
(x) An automobile allowance of one thousand dollars
($1,000) per month.
4. ILLNESS, INJURY OR INCAPACITY OR DEATH DURING EMPLOYMENT.
(a) If by reason of illness, injury or incapacity, Employee
is unable, despite reasonable accommodation, to perform his services
or discharge his duties hereunder for a continuous period of six (6)
months (excluding vacation, paid time off and holiday time), or for 6
months in any 12 month period, then upon [thirty (30)] days' prior
notice, the Company may terminate the employment of Employee, and
thereupon, Employee shall be paid his base salary and prorated bonus
through the 30-day notice period.
(b) In the event of Employee's death, all obligations of
the Company under this Agreement shall terminate other than Employee's
rights with respect to the payment of that portion of the base salary
and prorated bonus earned by Employee to the date of death, plus
reimbursement of all pre-approved expenses that were reasonably
incurred by Employee in performing his responsibilities and duties for
the Company prior to and including such date.
5. OTHER TERMINATION OF EMPLOYMENT.
(a) If the Company terminates Employee's employment
hereunder With Cause (as hereinafter defined) or Employee resigns
Without Good Reason (as hereinafter defined), all obligations of the
Company to provide compensation and benefits under this Agreement
shall cease, and Employee shall have no claim against the Company for
damages or otherwise by reason of such termination. The Company's
election to terminate Employee's employment With Cause shall be
without prejudice to any remedy the Company may have against Employee
for the breach or non-performance of any of the provisions of this
Agreement. The Company agrees that Employee's election to terminate
his employment hereunder for any reason shall not constitute a
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sufficient basis upon which the Company can terminate Employee's
employment With Cause.
(b) If the Company terminates Employee's employment
hereunder Without Cause (as hereinafter defined) or Employee
terminates employment With Good Reason (as hereinafter defined), then
Employee shall be entitled to continue to receive the following
compensation and benefits for the lesser of six months or the balance
of the term of this Agreement. beginning on the date of such
termination:
(i) Employee's base salary in effect at the time of
such termination of employment, payable on the same basis as his
salary was paid prior to such termination of employment.
(ii) Incentive bonus payments equal to (A) the amount
of bonus that would have been payable to Employee had Employee
remained employed with the Company until the end of the fiscal
year in which the termination of employment occurs but reduced on
a pro rata basis based upon the period of time worked in such
fiscal year.
(iii) Continued participation in the Company's benefit
plans and programs described in Section 3(d) herein (other than
those described in Sections 3(d)(iv),(v),(vi), and (vii), to the
extent permitted by law.
(iv) Payment of the accrued but unused vacation time of
Employee as of the date of his termination of employment.
In the event of a termination of employment pursuant to this Section
5(b), Employee, and his covered spouse and dependents, will have the
right to continue group health coverage under Sections 601-609 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")
("COBRA"), and for purposes of this Agreement, the date of Employee's
qualifying event, as defined in Section 603 of ERISA, shall be the
last day of the twelve-month period following Employee's termination
of employment.
(c) "With Cause" means the termination of employment
resulting from any of the following:
(i) any act or omission which constitutes a material
breach by Employee of his obligations under this Agreement and
which remains unremedied after thirty (30) days written notice
from the Company to Employee of such breach.
(ii) the commission by Employee of a felony or any
crime involving fraud or dishonesty, breach or violation of any
applicable U.S. federal or state or Finnish "xxxxxxx xxxxxxx" or
related rules, regulations or laws, or insider securities laws.
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(iii) the illegal use of controlled substances by the
Employee, which materially interferes with the performance of his
duties hereunder.
(iv) the persistent failure or refusal of Employee to
implement reasonable directives of the Board, which directives
are consistent with the scope of Employee's duties hereunder;
(v) the issuance of a final consent decree, cease and
desist or similar order against Employee by a regulatory agency
relating to material violations or alleged material violations of
any Finnish, federal or state law or regulation governing the
conduct of the business of the Company.
(vi) a deliberate act or omission of a material nature
by Employee (other than an act or omission resulting from the
exercise by Employee of good faith business judgment) which
materially impairs the financial condition or business reputation
of the Company.
(d) "Without Cause" means the termination of Employee's
employment by the Company for any reason other than those enumerated
in subsection (c) above or in Section 4 of this Agreement.
(e) "With Good Reason" means Employee's termination of his
employment with the Company as a result of:
(i) A material diminution in Employee's duties
inconsistent with Employee's position as specified on the
signature page hereof (or such other position to which he may be
promoted).
(ii) A reduction in the salary or employee benefits
described in Section 3 herein.
(iii) Any other material breach of this Agreement by
the Company, including the failure to pay Employee on a timely
basis the amounts to which he is entitled under this Agreement,
which breach is not cured within ten (10) business days after
receipt by the Company of notice thereof.
(f) "Without Good Reason" means the Employee's termination
of his employment with the Company for any reason other than (a) those
enumerated in subsection (e) above or (b) a termination of Employee's
employment pursuant to Section 4 hereof.
6. EMPLOYEE'S OBLIGATIONS UPON TERMINATION OF EMPLOYMENT.
Upon the termination of his employment hereunder for
whatever reason Employee shall:
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(a) Forthwith tender his resignation from any directorship
or office he may hold in the Company, Parent or their respective
subsidiaries or affiliates.
(b) Not at any time represent himself still to be connected
or to have any connection with the Company, Parent or their respective
subsidiaries or affiliates.
7. EFFECT OF TERMINATION.
The provisions of this Agreement shall survive the
termination of this Agreement and the termination of Employee's
employment with the Company to the extent required to give full effect
to the covenants and agreements contained herein.
8. CONFIDENTIALITY.
(a) Employee agrees that, both during the term of his
employment and after the termination of his employment for any reason,
Employee will hold in a fiduciary capacity for the benefit of the
Company, and shall not directly or indirectly use or disclose, except
as authorized by the Company in connection with the performance of
Employee's duties, any Confidential Information, as defined
hereinafter, that Employee may have or acquire (whether or not
developed or compiled by Employee and whether or not Employee has been
authorized to have access to such Confidential Information) during the
term of this Agreement. The term "Confidential Information" as used
in this Agreement shall mean and include any information, data and
know-how relating to the business of the Company that is disclosed to
Employee by the Company or known by him as a result of his
relationship with the Company and not generally within the public
domain (whether or not constituting a trade secret), including without
limitation, the following information:
(i) financial information, such as the Company's
earnings, assets, debts, prices, fee structure, volumes of
purchases or sales or other financial data, whether relating to
the Company generally, or to particular products, services,
geographic areas, or time periods;
(ii) supply and service information, such as
information concerning the goods and services utilized or
purchased by the Company, the names or addresses of suppliers,
terms of supply or service contracts, or of particular
transactions, or related information about potential suppliers,
to the extent that such information is not generally known to the
public, and to the extent that the combination of suppliers or
use of a particular supplier, though generally known or
available, yields advantages to the Company the details of which
are not generally known;
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(iii) marketing information, such as details about
ongoing or proposed marketing programs or agreements by or on
behalf of the Company, marketing forecasts or results of
marketing efforts or information about impending transactions;
(iv) personnel information, such as employees' personal
or medical histories, compensation or other terms of employment,
actual or proposed promotions, hiring, resignations, disciplinary
actions, terminations or reasons therefor, training methods,
performance, or other employee information;
(v) customer information, such as any compilation of
past, existing or prospective customers, customer proposals or
agreements between customers and the Company, status of customer
accounts or credit, or related information about actual or
prospective customers; and
(vi) information with respect to any corporate affairs
that the Company agreed to treat as confidential.
The term "Confidential Information" does not include information that
has become generally available to the public by the act of one who has
the right to disclose such information without violating any right of
the Company or the client to which such information pertains.
(b) The covenant contained in this Section 8 shall survive
the termination of Employee's employment with the Company for any
reason for a period of two (2) years; provided, however, that with
respect to those items of Confidential Information which constitute
trade secrets under applicable law, Employee's obligations of
confidentiality and non-disclosure as set forth in this Section 8
shall continue to survive after said two (2) year period to the
greatest extent permitted by applicable law. These rights of the
Company are in addition to those rights the Company has under the
common law or applicable statutes for the protection of trade secrets.
9. NON-COMPETITION.
Employee expressly covenants and agrees that during the term
of his employment hereunder and for a period of two (2) years after
termination of his employment for any reason, he will not, directly or
indirectly, seek, obtain or accept a "Competitive Position" in the
"Restricted Territory" with a "Competitor" of the Company (as such
terms are hereafter defined). For purposes of this Agreement, a
"Competitor" of the Company means any business, individual,
partnership, joint venture, association, firm, corporation or other
entity engaged, wholly or partly, in the manufacture and sale of
products that are the same as, or similar to, or competitive with, the
products provided by the Company; a "Competitive Position" means any
employment with any Competitor of the Company whereby Employee will
use or is likely to use any Confidential Information (as that term is
defined in Section 8), or whereby Employee has duties for such
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Competitor that are the same as or substantially similar to those
actually performed by his pursuant to the terms hereof; and the
"Restricted Territory" means the following geographical area: the
entire states in which the Company, its divisions or subsidiaries have
a manufacturing facility, a 200-mile radius from any of the Company's
or other affiliates' physical facilities, at the time of Employee's
termination of employment with the Company. Employee acknowledges and
agrees that he has been or will be working within the Restricted
Territory as defined above or has had or will have material contact
with clients or actively sought prospective clients of the Company
located within such areas. The parties agree to review the
geographical area included within the Restricted Territory from time
to time at either party's request in order that the Restricted
Territory may be reformed so that its coverage upon Employee's
termination will extend only to the geographical area in which the
Employee is working at such time, including any area where any
operations performed, supervised or assisted in by the Employee are
conducted and any area where customers or actively sought prospective
customers of the Company with whom the Employee had material contact
are present, any reformation to be evidenced only by written amendment
to this Agreement. Nothing contained in this Section 10 is intended
to prevent Employee from investing in stock or other securities listed
on a national securities exchange or actively traded on the over the
counter market of any corporation that is a Competitor; provided,
however, that Employee and members of his immediate family shall not,
directly or indirectly, hold more than a total of five percent (5%) of
all issued and outstanding stock or other securities of any such
corporation.
10. NON-SOLICITATION OF CUSTOMERS.
Employee agrees that he will not take any customer lists of
the Company after leaving its employ and that he will, for so long as
he is employed hereunder and for a period of two (2) years following
termination of his employment for any reason, refrain from soliciting
or attempting to solicit, directly or by assisting others, any
business from any person, firm or entity which was a customer of the
Company or was involved in actual negotiations with the Company over
formation of a customer-supplier relationship at any time during the
two (2) year period prior to Employee's termination of employment with
the Company, if the Company is also then still engaged in such
business.
11. NON-SOLICITATION OF EMPLOYEES.
Employee agrees that he will, for so long as he is employed
hereunder and for a period of two (2) years after termination of his
employment, refrain from recruiting or hiring, or attempting to
recruit or hire, directly or by assisting others, any other employee
of the Company who is employed by the Company or any successor or
affiliate of the Company.
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12. TOLLING OF PERIOD OF RESTRAINT.
Employee hereby expressly agrees that any violation of the
restraints set forth in Sections 8 through 11 shall automatically toll
and suspend the period of the restraint for the amount of time that
the violation continues; PROVIDED, however, that in no event shall the
duration of such tolling and suspension exceed two (2) years in the
aggregate and further provided that such tolling and suspension shall
be conditioned upon the Company taking appropriate action under this
Agreement to enjoin or otherwise prevent a breach of this Agreement
within a reasonable period of time after the Company discovers such
breach.
13. ACKNOWLEDGMENTS.
Employee hereby acknowledges and agrees that the
restrictions contained in Sections 8 through 11 are fair and
reasonable and necessary for the protection of the legitimate business
interests of the Company. Employee acknowledges that in the event
Employee's employment with the Company terminates for any reason,
Employee will be able to earn a livelihood without violating the
restrictions contained in Sections 8 through 11 and that Employee's
ability to earn a livelihood without violating such restrictions is a
material condition to Employee's employment and continued employment
with the Company.
Employee hereby further acknowledges and agrees that each
reference to the "Company" contained in Sections 9 through 12, this
Section 13, and Section 14, shall be deemed to include Parent and any
affiliate of Parent.
14. RIGHTS TO MATERIALS.
All records, files, memoranda, reports, price lists,
customer lists, drawings, plans, sketches, documents and the like
(together with all copies thereof) relating to the business of the
Company, which Employee shall use or prepare or come in contact with
in the course of, or as a result of, his employment shall, as between
the parties hereto, remain the sole property of the Company. Upon the
termination of his employment or upon the prior demand of the Company,
he shall immediately return all such materials and shall not
thereafter cause removal thereof from the premises of the Company.
15. WORKS MADE FOR HIRE.
The Company and Employee acknowledge that in the course of
Employee's employment by the Company, Employee may from time to time
create for the Company copyrightable works. Such works may consist of
manuals, pamphlets, instructional materials, computer programs, films,
tapes or other copyrightable material, or portions thereof, and may be
created within or without the Company's facilities and before, during
or after normal business hours. All such works related to or useful
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in the business of the Company are specifically intended to be works
made for hire and shall be the property of the Company, and Employee
shall cooperate with the Company in the protection of the Company's
copyrights therein and, to the extent deemed desirable by the Company,
the registration of such copyrights.
16. DISCOVERIES.
Employee agrees that any inventions, discoveries or
improvements that Employee may develop or conceive during the course
of Employee's employment shall be the sole property of the Company.
Employee agrees to promptly disclose to the Company in writing all
such inventions, discoveries and improvements, whether directly or
indirectly related to the business of the Company or whether made
solely by the Employee or in conjunction with others. At the
Company's request and expense, both during and after Employee's
employment, Employee will promptly execute a specific assignment of
title to the Company (or any specified member thereof) of each
invention, discovery or improvement described in the preceding
paragraph, and perform all other acts reasonably necessary to enable
the Company to secure a patent therefor in the United States and in
foreign countries and to maintain, defend and assert such patents.
This obligation shall survive the termination or expiration of this
Agreement.
17. SEVERABILITY.
Except as noted below, should any provision of this
Agreement be declared or determined by any court of competent
jurisdiction to be unenforceable or invalid for any reason, the
validity of the remaining parts, terms or provisions of this Agreement
shall not be affected thereby and the invalid or unenforceable part,
term or provision shall be deemed not to be a part of this Agreement.
The covenants set forth in this Agreement are to be reformed pursuant
to Section 18 if held to be unreasonable or enforceable, in whole or
in part, and, as written and as reformed, shall be deemed to be part
of this Agreement.
18. REFORMATION.
If any of the covenants or promises of this Agreement are
determined by any court of law or equity, with jurisdiction over this
matter, to be unreasonable or unenforceable, in whole or in part, as
written, Employee hereby consents to and affirmatively requests that
said court reform the covenant or promise so as to be reasonable and
enforceable and that said court enforce the covenant or promise as so
reformed.
19. INJUNCTIVE RELIEF.
Employee understands, acknowledges and agrees that in the
event of a breach or threatened breach of any of the covenants and
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promises contained in Sections 8 - 11 and 14 - 16, the Company will
suffer irreparable injury for which there is no adequate remedy at law
and the Company will therefore be entitled to injunctive relief
enjoining said breach or threatened breach. Employee further
acknowledges, however, that the Company shall have the right to seek a
remedy at law as well as or in lieu of equitable relief in the event
of any such breach.
20. NO SET-OFF OR MITIGATION.
The payments or benefits payable to or with respect to
Employee or his beneficiary pursuant to this Agreement shall not be
reduced by the amount of any claim of the Company against Employee or
any debt or obligation of Employee owing to the Company. No payments
or benefits payable to or with respect to Employee pursuant to this
Agreement shall be reduced by any amount Employee may earn or receive
from employment with another employer or from any other source.
21. ASSIGNMENT.
The terms and provisions of this Agreement shall inure to
the benefit of and be binding upon the Company and its successors and
assigns, and upon Employee and his heirs and personal representatives.
The term "Company" as used in this Agreement shall be deemed to
include the successors and assigns of the original or any subsequent
entity constituting the Company as well as any and all divisions,
subsidiaries, or affiliates thereof.
22. WAIVER.
The waiver by any party to this Agreement of a breach of any
of the provisions of this Agreement shall not operate or be construed
as a waiver of any subsequent or simultaneous breach.
23. APPLICABLE LAW AND MUTUAL SUBMISSIONS.
This Agreement has been entered into in and shall be
governed by and construed under the laws of the State of Michigan.
24. HEADINGS AND CAPTIONS.
The headings and captions used in this Agreement are for
convenience of reference only, and shall in no way define, limit,
expand or otherwise affect the meaning or construction of any
provision of this Agreement.
25. NOTICE.
Any notice required or permitted to be given pursuant to
this Agreement shall be deemed sufficiently given when delivered in
person or when deposited in the United States mail, first class
postage prepaid.
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26. GENDER.
All pronouns or any variations thereof contained in this
Agreement refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person or persons may require.
27. RIGHT TO ARBITRATION.
Any controversy or claim arising out of or relating to
Employee's employment by the Company, or the termination thereof, or
this Agreement, or the breach thereof (including, without limitation,
any claim that any provision of this Agreement or any obligation of
Employee is illegal or otherwise unenforceable or voidable under law,
ordinance or ruling or that Employee's employment by the Company was
illegally terminated) shall be settled by arbitration at the office of
the American Arbitration Association in Chicago, Illinois, in
accordance with the United States Arbitration Act (9 U.S.C., Section 1 et
seq.) and the rules of the American Arbitration Association. Company
and Employee each consents and submits to the personal jurisdiction
and venue of the trial courts of the State of Michigan, and also to
the personal jurisdiction and venue of the United States District
Court for the District of Michigan which includes the City of
Kalamazoo for purposes of enforcing this provision. All awards of the
arbitration shall be binding and non-appealable except as otherwise
provided in the United States Arbitration Act. Judgment upon the
award of the arbitrator may be entered in any court having
jurisdiction thereof. The arbitration shall take place at a time
noticed by the American Arbitration Association regardless of whether
one of the parties fails or refuses to participate. The arbitrator
shall have no authority to award punitive damages, but will otherwise
have the authority to award any remedy or relief that a court of
competent jurisdiction could order or grant, including, without
limitation, specific performance of any obligation created under this
Agreement, the issuance of an injunction or other provisional relief,
or the imposition of sanctions for abuse or frustration of the
arbitration process. The parties shall be entitled to engage in
reasonable discovery, including a request for the production of
relevant documents. Depositions may be ordered by the arbitrator upon
a showing of need. The foregoing provisions shall not preclude the
Company from bringing an action in any court of competent jurisdiction
for injunctive or other provisional relief as the Company may
determine is necessary or appropriate.
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28. ENTIRE AGREEMENT.
This Agreement, together with any exhibits attached hereto,
constitutes the entire agreement between the Company and Employee with
respect to the subject matter of this Agreement and, at the Effective
Time of the Merger, shall supersede any prior agreements or
understandings between the Company and Employee with respect to such
subject matter. No amendment or waiver of this Agreement or any
provision hereof shall be effective unless in writing signed by both
of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed, under seal, as of the day and year first above
written.
COMPANY:
TRIPLE S PLASTICS, INC.
By: /s/ A. Xxxxxxxxx Xxxxxxx
--------------------------------
Its: Chief Executive Officer
Attest: ________________________
By: /s/ Xxxxxx X. Xxxxx
----------------------------
[CORPORATE SEAL]
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
--------------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
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