Exhibit 10.20
EMPLOYMENT AGREEMENT
dated as of February 16, 2004, between XXXXX
PLASTICS CORPORATION, a Delaware corporation
(the "Corporation"), and XXXX XXXXXX (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 January 1, 2009. 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 President Container Division, 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 $345,000, 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 increased 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
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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
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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
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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, 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;
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(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: Xxx X. Boots
Telecopier: (000) 000-0000;
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(ii) if to the Employee, to him or her at:
Xxxx Xxxxxx
00 Xxxx Xxxxxxxx #0000
Xxxxxxx, XX 00000
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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.
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(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.
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IN WITNESS WHEREOF, the parties have duly executed this
Employment Agreement as of the date first above written.
XXXXX PLASTICS CORPORATION
By: /s/ Xxx X. Boots
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Xxx X. Boots
President & Chief Executive Officer
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
