Exhibit 10.11
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SI HANDLING SYSTEMS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT is made as of the 7th day
of August, 1999 by and between Xxxx X. Xxxxxxxxx, a resident of Grand Rapids
Michigan, (the "Employee"), and SI Handling Systems, Inc., a corporation
organized and existing under the laws of the Commonwealth of Pennsylvania (the
"Company").
WHEREAS, the Company is engaged in the business of designing,
selling, installing and servicing integrated automated material handling systems
for industrial, warehousing and distribution customers (the "Business").
WHEREAS, the Company desires to employ the Employee and the
Employee desires to be employed by the Company, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the parties,
subject to the terms and conditions set forth herein, agree as follows:
1. Employment and Term. The Company hereby employs the Employee and the Employee
hereby accepts employment with the Company, for a period commencing on October
1, 1999 (the "Commencement Date") and continuing until the earlier of the third
anniversary of the Commencement Date (the "Expiration Date") or the termination
of this Agreement in accordance with the provisions of Section 7 hereof (the
"Term"), to hold the office of President of Ermanco Incorporated ("Ermanco") and
shall serve as a corporate officer of the Company with the title of Corporate
Vice President during the Term from and after the Commencement Date (such
office, referred to herein as the "Position"). The Board of Directors of the
Company at a regular or special meeting prior to the Commencement Date shall
take such action as may be necessary to expand the size of the Board of
Directors by one (1) and to elect the Employee to be a member of the Board of
Directors; thereafter, for so long as the Employee continues to serve in the
Position, at each annual meeting of shareholders of the Company, the Board of
Directors shall use all reasonable efforts to cause the Employee to be nominated
for election as a member of the Board of Directors.
2. Duties. During the Term, the Employee shall serve the Company faithfully and
to the best of his ability and shall devote his full time, attention, skill and
efforts to the performance of the duties required by or appropriate for the
Position. Subject to the oversight of the President and CEO of the Company, the
Employee shall (i) have responsibility for the exercise of the executive
authority of Ermanco, being the general and active management of the business of
Ermanco and the carrying into effect of all orders and resolutions of the
President and CEO of the Company, which executive authority may be delegated by
the Employee to other officers and/or employees of Ermanco, and (ii) such duties
and responsibilities as may be assigned to him from time to time by the
President and CEO of the Company. The Employee shall report to the President and
CEO of the Company. The Employee shall perform his duties and responsibilities
hereunder at Ermanco's facility located in Spring Lake, Michigan or at such
other location as may be established from time to time by the President and CEO
of the Company; provided that the Employee may perform duties and
responsibilities hereunder at his residence in Telluride, Colorado for up to
eight (8) weeks per year (exclusive of vacation time), so long as (i) Ermanco
has achieved, through the preceding quarter, at least eighty-five percent (85%)
of the sales, income and cash generation goals set forth in a plan for the
applicable fiscal year approved by the President and CEO of the Company (the
"Plan") and (ii) no more than one week per month (exclusive of vacation time) is
spent in Telluride, Colorado. Ermanco shall reimburse the Employee for his
travel expenses between Spring Lake, Michigan and Telluride, Colorado for up to
twelve (12) trips per year up to a maximum of six hundred dollars ($600) per
trip.
3. Compensation. The Company shall pay the Employee, and the Employee hereby
agrees to accept, as compensation for all services to be rendered to the Company
and for the Employee's intellectual property covenants and assignments and
covenant not to compete, as provided in Sections 5 and 6 hereof, the
compensation set forth in this Section 3.
3.1 Salary. Beginning on the Commencement Date, the Company shall pay the
Employee a base salary at the annual rate of Two Hundred Fifty-Three Thousand
Dollars ($253,000) (as the same may hereafter be adjusted, the "Salary") during
the term of this Agreement. The Salary shall not be reduced during the term of
this Agreement. The Salary shall be inclusive of all applicable income, social
security and other taxes and charges that are required by law to be withheld by
the Company (collectively, "Taxes") and shall be paid and withheld in accordance
with the Company's normal payroll practices for its executive employees from
time to time in effect. The Salary shall be subject to increase in the
discretion of the President and CEO and the Board of Directors of the Company
based upon the achievement of the sales, income and cash generation goals set
forth in the Plan for the applicable fiscal year.
3.2 Bonus. The Employee shall be eligible to participate in Ermanco's existing
Management Incentive Plan in effect for a particular fiscal year which provides
an opportunity for an annual incentive bonus (the "Bonus") based upon the
achievement of the sales, income and cash generation goals set forth in the Plan
for the applicable fiscal year.
3.3 Equity Participation.
(a) Incentive Stock Options. Effective as of October 1, 1999 (the "Grant
Date"), the Employee shall be granted "Incentive Stock Options" (as such term is
defined in the Company's 1997 Equity Compensation Plan, as amended from time to
time (the "Equity Compensation Plan")) to purchase twenty-five thousand (25,000)
shares of Common Stock under and subject to the terms of the Equity Compensation
Plan, which shall vest at a rate of twenty five percent (25%) per year on each
of the first four (4) anniversaries of the Grant Date; provided that as an
express condition of receipt of such Incentive Stock Options, the Employee shall
enter into and agree to be bound by the terms of the standard "Grant Instrument"
(as such term is defined in the Equity Compensation Plan) applicable to the
issuance of Incentive Stock Options under the Equity Compensation Plan.
(b) Vesting. In the event of a "Change of Control" (as such term is
defined in the Equity Compensation Plan), all rights to acquire Common Stock
pursuant to the Grant of Incentive Stock Options described in Section 3.3(a)
hereof shall fully accelerate and be immediately vested and exercisable;
provided that, in the event such acceleration and vesting would make the Change
of Control ineligible for pooling of interests accounting treatment, in lieu of
such acceleration and vesting, the Company shall make a payment to the Employee
in an amount equal to the benefit that would have inured to the Employee if such
acceleration and vesting had occurred so long as such payment would not make the
Change of Control ineligible for pooling of interests accounting treatment or
otherwise impose adverse tax consequences on the Company. In no event shall any
right to acquire Common Stock pursuant to the Grant Incentive Stock Options
described in Section 3.3(a) hereof vest upon or following the termination of the
Employee's employment with the Company, except as provided in the Equity
Compensation Plan (as amended from time to time, including, without limitation,
with respect to the vesting of restricted stock or incentive stock options in
event of the death or disability of an employee of the Company) or the
applicable Grant Instrument.
3.4 Annual Compensation Review. The President and CEO and the Board of Directors
of the Company shall review the Employee's compensation annually which review
shall include, without limitation, an evaluation of the Employee's contribution
to the Company's annual financial performance, including orders, pre-tax
earnings, cash generation, and effective management of Ermanco's operations.
3.5 Fringe Benefits. During the Term, the Employee shall be entitled to
participate in standard Ermanco management benefits programs, including, without
limitation, Ermanco's standard program with respect to automobile benefits, as
amended from time to time (the "Benefits") (provided that in the event of an
amendment to the automobile benefits program, the automobile benefits received
by the Employee shall not be reduced during the term of the existing lease for
his company automobile), which benefits do not include any special 1099 tax
reimbursements, special insurance-tax reimbursements, special pension
incentives, or special insurance trusts. Employee shall be entitled to four (4)
weeks paid vacation per year.
3.6 Reimbursement of Expenses. During the course of employment, the Employee
shall be reimbursed for items of travel, food and lodging and miscellaneous
expenses reasonably incurred by him on behalf of the Company, provided that such
expenses are incurred, documented and submitted to the Company, all in
accordance with the reimbursement policies of the Company as in effect from time
to time.
4. Confidentiality. The Employee recognizes and acknowledges that the
Proprietary Information (as hereinafter defined) is a valuable, special and
unique asset of the Company. As a result, both during the Term and thereafter,
the Employee shall not, without the prior written consent of the Company, for
any reason either directly or indirectly divulge to any third-party or use for
his own benefit, or for any purpose other than the exclusive benefit of the
Company and Ermanco, any confidential, proprietary, business and technical
information or trade secrets of the Company or of any subsidiary or affiliate of
the Company, including, without limitation, Ermanco (the "Proprietary
Information") revealed, obtained or developed in the course of his employment
with the Company. Proprietary Information shall include, but shall not be
limited to the intangible personal property described in Section 5(b) hereof
and, in addition, technical information, including research design, results,
techniques and processes; apparatus and equipment design; and computer software;
technical management information, including project proposals, research plans,
status reports, performance objectives and criteria, and analyses of areas for
business development; and business information, including project, financial,
accounting and personnel information, business strategies, plans and forecasts,
customer lists, customer information and sales and marketing plans, efforts,
information and data. In addition, "Proprietary Information" shall include all
information and materials received by the Company, Ermanco or the Employee from
a third party subject to an obligation of confidentiality and/or non-disclosure.
Nothing contained herein shall restrict the Employee's ability to make such
disclosures during the course of the employment as may be necessary or
appropriate to the effective and efficient discharge of the duties required by
or appropriate for the Position or as such disclosures may be required by law or
by a governmental body or court. Furthermore, nothing contained herein shall
restrict the Employee from divulging or using for his own benefit or for any
other purpose any Proprietary Information that is readily available to the
general public so long as such information did not become available to the
general public as a direct or indirect result of the Employee's breach of this
Section 4. Failure by the Company or Ermanco to xxxx any of the Proprietary
Information as confidential or proprietary shall not affect its status as
Proprietary Information under the terms of this Agreement.
5. Property.
(a) All right, title and interest in and to Proprietary Information shall be and
remain the sole and exclusive property of the Company and/or Ermanco. During the
Term, the Employee shall not remove from the Company's or Ermanco's offices or
premises any documents, records, notebooks, files, correspondence, reports,
memoranda or similar materials of or containing Proprietary Information, or
other materials or property of any kind belonging to the Company or Ermanco,
unless necessary or appropriate in accordance with the duties and
responsibilities required by or appropriate for the Position and, in the event
that such materials or property are removed, all of the foregoing shall be
returned to their proper files or places of safekeeping as promptly as possible
after the removal shall serve its specific purpose. The Employee shall not make,
retain, remove and/or distribute any copies of any of the foregoing for any
reason whatsoever, except as may be necessary in the discharge of the assigned
duties and shall not divulge to any third person the nature of and/or contents
of any of the foregoing or of any other oral or written information to which he
may have access or with which for any reason he may become familiar, except as
disclosure shall be necessary in the performance of the duties; and upon the
termination of his employment with the Company, he shall return to the Company
all originals and copies of the foregoing then in his possession or under his
control, whether prepared by the Employee or by others.
(b) (i) The Employee acknowledges that all right, title and interest in and to
any and all writings, documents, inventions, discoveries, ideas, developments,
information, computer programs or instructions (whether in source code, object
code, or any other form), algorithms, formulae, plans, memoranda, tests,
research, designs, innovations, systems, analyses, specifications, models, data,
diagrams, flow charts, and/or techniques (whether patentable or non-patentable
or whether reduced to written or electronic form or otherwise) relating to the
Business or any other business in which the Company or any of the Company's
subsidiaries or affiliates, including, without limitation, Ermanco, is engaged
during the Term that the Employee creates, makes, conceives, discovers or
develops, either solely or jointly with any other person, at any time during the
Term, during working hours or using any property or facility of the Company or
Ermanco, and whether upon the request or suggestion of the Company or otherwise,
(collectively, "Intellectual Work Product") shall be the sole and exclusive
property of the Company and/or Ermanco. The Employee shall promptly disclose to
the Company all Intellectual Work Product, and the Employee shall have no claim
for additional compensation for the Intellectual Work Product.
(ii) The Employee acknowledges that all the Intellectual Work
Product that is copyrightable shall be considered a work made for hire under
United States Copyright Law. To the extent that any copyrightable Intellectual
Work Product may not be considered a work made for hire under the applicable
provisions of the United States Copyright Law, or to the extent that,
notwithstanding the foregoing provisions, the Employee may retain an interest in
any Intellectual Work Product, the Employee hereby irrevocably assigns and
transfers to the Company any and all right, title, or interest that the Employee
may have in the Intellectual Work Product under copyright, patent, trade secret
and trademark law, in perpetuity or for the longest period otherwise permitted
by law, without the necessity of further consideration. The Company shall be
entitled to obtain and hold in its own name all copyrights, patents, trade
secrets, and trademarks with respect thereto.
(iii) The Employee shall reveal
promptly all information relating to any Intellectual Work Product to the
President and CEO of the Company, cooperate with the Company and execute such
documents as may be necessary or appropriate (A) in the event that the Company
desires to seek copyright, patent or trademark protection, or other analogous
protection, thereafter relating to the Intellectual Work Product, and when such
protection is obtained, renew and restore the same, or (B) to defend any
opposition proceedings in respect of obtaining and maintaining such copyright,
patent or trademark protection, or other analogous protection.
6. Covenant not to Compete. The Employee shall not, during the Term (except in
the performance of the Employee's duties hereunder) and for a period of two (2)
years immediately following the termination of the Employee's employment
hereunder do any of the following directly or indirectly without the prior
written consent of the Board of Directors in its sole discretion:
(a) engage or participate, directly or indirectly, in any business activity
substantially competitive with the Business;
(b) become interested (as owner, stockholder, lender, partner, co-venturer,
director, officer, employee, agent, consultant or otherwise) in any person,
firm, corporation, association or other entity engaged in any business that is
competitive with the Business, or become interested in (as owner, stockholder,
lender, partner, co-venturer, director, officer, employee, agent, consultant or
otherwise) any portion of the business of any person, firm, corporation,
association or other entity where such portion of such business is competitive
with the Business or any other business in which the Company or any of the
Company's subsidiaries or affiliates, including, without limitation, Ermanco, is
engaged during the Term (notwithstanding the foregoing, the Employee may hold
not more than five percent (5%) of the outstanding securities of any class of
any publicly-traded securities of a company that is engaged in the Business);
(c) engage, either directly or indirectly, in any business activity
substantially competitive with the Business with any (A) customer with whom the
Company or Ermanco shall have dealt at any time during the one (1) year period
immediately preceding the termination of the Employee's employment hereunder, or
(B) corporate partner, collaborator, independent contractor or supplier with
whom the Company or Ermanco shall have dealt at any time during the one (1) year
period immediately preceding the termination of the Employee's employment
hereunder;
(d) influence or attempt to influence any then current or prospective supplier,
customer, corporate partner, collaborator, or independent contractor of the
Company or Ermanco to terminate or modify any written or oral agreement or
course of dealing with the Company or Ermanco; or
(e) initiate any contract with any person with the purpose of influencing or
attempting to influence any person either (i) to terminate or modify an
employment, consulting, agency, distributorship or other arrangement with the
Company or Ermanco, or (ii) to employ or retain, or arrange to have any other
person or entity employ or retain, any person who has been employed or retained
by the Company or Ermanco as an employee, consultant, agent or distributor of
the Company or Ermanco at any time during the one (1) year period immediately
preceding the termination of the Employee's employment hereunder.
The Employee acknowledges that he has carefully read and
considered the provisions of this Section 6. The Employee acknowledges that the
foregoing restrictions may limit his ability to earn a livelihood in a business
similar to the Business, but he nevertheless believes that he has received and
will receive sufficient consideration and other benefits in connection with the
payment by the Company and Ermanco of the compensation set forth in Sections 3
and 7 hereof to justify such restrictions, which restrictions the Employee does
not believe would prevent him from earning a living in businesses that are not
competitive with the Business and without otherwise violating the restrictions
set forth herein.
7. Termination. Upon termination of the Employee's employment hereunder, the
Employee shall be entitled only to such compensation and benefits as described
in this Section 7.
7.1 Termination by the Company Without Cause.
(a) Notwithstanding anything to the contrary set forth herein, the Company shall
have the right to terminate the Employee's employment hereunder at any time, for
any reason or for no reason, without cause, effective upon the date designated
by the Company upon written notice to the Employee.
(b) In the event of a termination of the Employee's employment hereunder
pursuant to Section 7.1(a) hereof prior to the Expiration Date, the Employee
shall be entitled to receive all accrued but unpaid (as of the effective date of
such termination) Salary and the severance payments in the manner set forth in
Section 7.1(c) hereof; provided that the Employee has complied with all of his
obligations under this Agreement and continues to comply with all of his
surviving obligations hereunder listed in Section 9 hereof. Except as
specifically set forth in this Section 7.1, all Salary and Benefits shall cease
at the time of such termination, except as required under applicable law and
neither the Company nor Ermanco shall have any further liability or obligation
hereunder by reason of or subsequent to such termination.
(c) In the event of the termination of the Employee's employment under Section
7.1(a) hereof prior to the Expiration Date, the Employee shall be entitled, as
severance pay, to receive:
(i) an amount equal to (A) the sum of the Salary then in effect plus the average
of the Bonus paid to the Employee in the two years preceding the effective date
of such termination, multiplied by (B) the lesser of (i) two or (ii) the number
of years between the effective date of such termination and the Expiration Date
(pro rated for any partial year);
(ii) all Benefits for a period of years (including fractional years) years equal
to the lesser of (i) two or (ii) the number of years between the effective date
of such termination and the Expiration Date (pro rated for any partial year)
(the "Extended Coverage Period"); provided that such Benefits shall not include
any special 1099 tax reimbursements, special insurance-tax reimbursements,
special pension incentives, or special insurance trusts. In the Employee's sole
discretion, at the end of the Extended Coverage Period, the Company or Ermanco,
as the case may be, shall assign to him any assignable insurance policy owned by
the Company or Ermanco which relate to the Employee, at no cost to the Company,
Ermanco or the Employee;
(iii) in the event the Employee becomes self-employed after the termination of
his employment hereunder, reimbursement for the reasonable business travel
expenses incurred by the Employee in that endeavor for a period equal to the
Extended Coverage Period, up to a maximum amount equal to the amount budgeted by
the Company for his travel expenses for the fiscal year in which the date of
termination occurs (less any amounts budgeted for travel between Spring Lake,
Michigan and Telluride, Colorado);
(iv) a car benefits allowance in an amount equal to any car benefits allowance
available to the Employee as of the date of his termination, for a period equal
to the Extended Coverage Period.
7.2 Termination for Cause.
(a) The Company shall have the right to terminate the Employee's employment
hereunder at any time for "cause" upon written notice to the Employee. For
purposes of this Agreement, "cause" shall mean:
(i) any material breach by the Employee of Sections 4, 5 or 6 hereof;
(ii) any material breach by the Employee of any material obligations under this
Agreement, which breach has not been cured within thirty (30) days of written
notice by the Company to the Employee;
(iii) conduct of the Employee involving disloyalty to the Company or willful
misconduct with respect to the Company, including without limitation fraud,
embezzlement, theft or proven dishonesty in the course of the employment, which
conduct or willful misconduct, if capable of cure, has not been cured within
thirty (30) days of written notice by the Company to the Employee; or
(iv) conviction of a felony or other criminal act, provided that in the case of
such other criminal act the Employee is sentenced to a term of more than one (1)
year in prison.
(b) In the event of a termination of the Employee's employment hereunder
pursuant to Section 7.2(a) hereof, the Employee shall be entitled to receive all
accrued but unpaid (as of the effective date of such termination) Salary;
provided that the Employee has complied with all of his obligations under this
Agreement. All Salary and Benefits shall cease at the time of such termination,
subject to the requirements of applicable law, and, except as specifically set
forth in this Section 7.2, neither the Company nor Ermanco shall have any
further liability or obligation hereunder by reason of or subsequent to such
termination.
7.3 Termination by the Employee.
(a) Voluntary Termination. In the event of a voluntary termination by the
Employee of his employment hereunder, the Employee will be entitled to receive
all accrued and unpaid (as of the effective date of such termination) Salary;
provided that the Employee has complied with all of his obligations under this
Agreement. Except as specifically set forth in this Section 7.3(a) or as
provided by applicable law, neither the Company nor Ermanco shall have any
further liability or obligation to the Employee for compensation or benefits
hereunder by reason of or subsequent to such termination.
(b) Termination by Death. In the event that the Employee dies during the Term,
the Employee's employment hereunder shall be terminated thereby and the Company
shall pay to the Employee's executors, legal representatives or administrators
an amount equal to all accrued and unpaid (as of the date of death) Salary and
any such other benefits as are normally provided by the Company upon the death
of an employee; provided that the Employee has complied with all of his
obligations under this Agreement. Except as specifically set forth in this
Section 7.3(b) or as provided by applicable law, neither the Company nor Ermanco
shall have any further liability or obligation hereunder to the Employee's
executors, legal representatives, administrators, heirs or assigns or any other
person claiming under or through him by reason of or subsequent to the
Employee's death.
7.4 Termination upon a Change of Control.
(a) During the one (1) year period following a Change of Control and:
(i) in the event of the termination of the Employee's employment hereunder
pursuant to a Constructive Termination (as defined in Section 7.4(b) hereof)
during the period commencing on the Commencement Date and ending on the first
anniversary of the Commencement Date, the Employee shall be entitled, as
severance pay, to continue to receive his Salary for a period of twenty-four
(24) months, subject to all applicable Taxes, calculated on the basis of the
Salary in effect on the date of termination and paid in the same manner as
Salary was then paid hereunder.
(ii) in the event of the termination of the Employee's employment hereunder
pursuant to a Constructive Termination during the period commencing on the first
anniversary of the Commencement Date and ending on the second anniversary of the
Commencement Date, the Employee shall be entitled, as severance pay, to continue
to receive his Salary for a period of eighteen (18) months, subject to all
applicable Taxes, calculated on the basis of the Salary in effect on the date of
termination and paid in the same manner as Salary was then paid hereunder.
(iii) in the event of the termination of the Employee's employment hereunder
pursuant to a Constructive Termination at any time after the second anniversary
of the Commencement Date and prior to the Expiration Date, the Employee shall be
entitled, as severance pay, to continue to receive his Salary for a period of
twelve (12) months, subject to all applicable Taxes, calculated on the basis of
the Salary in effect on the date of termination and paid in the same manner as
Salary was then paid hereunder.
(b) For purposes of this Section 7.4, "Constructive Termination" shall mean the
termination of the Employee's employment hereunder by the Employee within one
year of a Change of Control as a result of any of the following: (i) the
Employee is demoted; (ii) the Employee's duties hereunder are materially altered
in a manner unacceptable to the Employee at the sole discretion of the Employee;
or (iii) the Salary is reduced.
8. Representations, Warranties and Covenants of the Employee.
(a) The Employee represents and warrants to the Company that:
(i) to the best of the Employee's knowledge, there are no restrictions,
agreements or understandings whatsoever to which the Employee is a party which
would prevent or make unlawful the Employee's execution of this Agreement or the
Employee's employment hereunder, or which is or would be inconsistent or in
conflict with this Agreement or the Employee's employment hereunder, or would
prevent, limit or impair in any way the performance by the Employee of the
obligations hereunder; and
(ii) the Employee has disclosed to the Company all restraints, confidentiality
commitments or other employment restrictions that he has with any other
employer, person or entity.
(b) The Employee covenants that in connection with his provision of services to
the Company and Ermanco, he shall not breach any obligation (legal, statutory,
contractual or otherwise) to any former employer or other person, including, but
not limited to obligations relating to confidentiality and proprietary rights.
9. Survival of Provisions. The provisions of this Agreement set forth in
Sections 3.6, 4, 5, 6, 7, 8, 18 and 19 hereof shall survive the termination of
the Employee's employment hereunder.
10. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the Company and the Employee and their respective successors,
executors, administrators, heirs and/or assigns; provided that the Employee
shall not make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the Company.
11. Notice. Any notice hereunder by either party shall be given by personal
delivery or by sending such notice by certified mail, return-receipt requested,
or telecopied, addressed or telecopied, as the case may be, to the other party
at its address set forth below or at such other address designated by notice in
the manner provided in this section. Such notice shall be deemed to have been
received upon the date of actual delivery if personally delivered or, in the
case of mailing, two (2) days after deposit with the U.S. mail, or, in the case
of facsimile transmission, when confirmed by the facsimile machine report.
(i) if to the Company, to:
SI Handling Systems, Inc.
000 Xxxxxxx Xxxx
X.X. Xxx 00
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Chairman of the Board
Telecopier: 000-000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esquire
Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopier: 000-000-0000
(ii) if to the Employee, to:
Xxxx X. Xxxxxxxxx
000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
Telecopier: 000-000-0000
with a copy to:
Xxxx Xxxxx, Esq.
Xxxxx Litowich Xxxxx & Xxxxxx
000 Xxxxxxx Xxxx., 0000 X. Xxxxxxxx
Xxxxx Xxxxxx, XX 00000
Telecopier: 000-000-0000
12. Entire Agreement; Amendments. This Agreement contains the entire agreement
and understanding of the parties hereto relating to the subject matter hereof,
and merges and supersedes all prior and contemporaneous discussions, agreements
and understandings of every nature between the parties hereto relating to the
employment of the Employee with the Company. This Agreement may not be changed
or modified, except by an agreement in writing signed by each of the parties
hereto.
13. Waiver. The waiver of the breach of any term or provision of this Agreement
shall not operate as or be construed to be a waiver of any other or subsequent
breach of this Agreement.
14. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Michigan, without regard to the principles of
conflicts of laws of any jurisdiction.
15. Invalidity. If any provision of this Agreement shall be determined to be
void, invalid, unenforceable or illegal for any reason, the validity and
enforceability of all of the remaining provisions hereof shall not be affected
thereby. If any particular provision of this Agreement shall be adjudicated to
be invalid or unenforceable, such provision shall be deemed amended to delete
therefrom the portion thus adjudicated to be invalid or unenforceable, such
amendment to apply only to the operation of such provision in the particular
jurisdiction in which such adjudication is made; provided that, if any provision
contained in this Agreement shall be adjudicated to be invalid or unenforceable
because such provision is held to be excessively broad as to duration,
geographic scope, activity or subject, such provision shall be deemed amended by
limiting and reducing it so as to be valid and enforceable to the maximum extent
compatible with the applicable laws of such jurisdiction, such amendment only to
apply with respect to the operation of such provision in the applicable
jurisdiction in which the adjudication is made.
16. Section Headings. The section headings in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its
interpretation.
17. Number of Days. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and legal
holidays; provided that, if the final day of any time period falls on a
Saturday, Sunday or day which is a legal holiday in the State of Michigan, then
such final day shall be deemed to be the next day which is not a Saturday,
Sunday or legal holiday.
18. Specific Enforcement; Consent to Suit. The Employee acknowledges that the
restrictions contained in Sections 4, 5 and 6 hereof are reasonable and
necessary to protect the legitimate interests of the Company and its affiliates
and that the Company would not have entered into this Agreement in the absence
of such restrictions. The Employee also acknowledges that any breach by him of
Sections 4, 5 or 6 hereof will cause continuing and irreparable injury to the
Company for which monetary damages would not be an adequate remedy. The Employee
shall not, in any action or proceeding to enforce any of the provisions of
Section 4, 5 or 6 hereof, assert the claim or defense that an adequate remedy at
law exists. In the event of such breach by the Employee, the Company shall have
the right to enforce the provisions of Section 4, 5 or 6 hereof by seeking
injunctive or other relief in any court, and this Agreement shall not in any way
limit remedies of law or in equity otherwise available to the Company. Any legal
proceeding to enforce the provisions of Section 4, 5 or 6 hereof shall be
instituted in the state court located in the County in the State in which
Ermanco's principal place of business is located, or if such court does not have
jurisdiction or will not accept jurisdiction, in any state or federal court of
general jurisdiction in the State of Michigan, and, for such purpose, the
Employee hereby consents to the personal and exclusive jurisdiction of such
court and hereby waives any objection that the Employee may have to the laying
of venue of any such proceeding and any claim or defense of inconvenient forum.
Notwithstanding the foregoing to the contrary, the Company shall have the right
to institute legal proceedings to enforce the provisions of Section 4, 5 or 6
hereof in any court with jurisdiction over the Employee. In any legal proceeding
seeking to enforce or interpret the terms of Section 4, 5 or 6 hereof, each
party shall be responsible for its own costs, expenses and disbursements,
including attorneys' fees.
19. Arbitration. Subject to the last sentence of this Section 19, if any dispute
arises over the terms of this Agreement between the parties to this Agreement,
either the Employee or the Company shall submit the dispute to binding
arbitration within thirty (30) days after such dispute arises, to be governed by
the evidentiary and procedural rules of the American Arbitration Association
(Commercial Arbitration). The Employee and the Company shall mutually select one
(1) arbitrator within ten (10) days after a dispute is submitted to arbitration.
In the event that the parties do not agree on the identity of the arbitrator
within such period, the arbitrator shall be selected by the American Arbitration
Association. The arbitrator shall hold a hearing on the dispute in Grand Rapids,
Michigan within thirty (30) days after having been selected and shall issue a
written opinion within fifteen (15) days after the hearing. The arbitrator shall
also decide on the allocation of the costs of the arbitration to the respective
parties, but the Employee and the Company shall each be responsible for paying
the fees of their own legal counsel, if legal counsel is obtained. Either the
Employee or the Company, or both parties, may file the decision of the
arbitrator as a final, binding and unappealable judgment in a court of
appropriate jurisdiction. Notwithstanding the foregoing provisions of this
Section 19 to the contrary, matters in which an equitable remedy or injunctive
relief is sought by a party, including but not limited to the remedies referred
to in Section 18 hereof, shall not be required to be submitted to arbitration,
if the party seeking such remedy or relief objects thereto, but shall instead be
subject to the provisions of Section 18 hereof.
20. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall be
deemed to be one and the same instrument.
[one signature page follows]
IN WITNESS WHEREOF, the parties have caused this Executive
Employment Agreement to be executed the day and year first written above.
SI HANDLING SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, President & CEO
/s/ Xxxx X. Xxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxx
