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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
AGREEMENT made this 20th day of January, 1998, by and between XXXXXX
INDUSTRIAL GROUP, INC., a Georgia corporation (the "Company"), and XXXXXXX X.
XXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, pursuant to a certain Agreement and Plan of Merger dated
October 20, 1997 (the "Merger Agreement"), MLX CORP., a Georgia corporation
("MLX"), through a merger (the "Merger") of XXXXXX METALCRAFT HOLDING CO., a
Delaware corporation ("Xxxxxx"), with and into MLX whose name is being changed
to XXXXXX INDUSTRIAL GROUP, INC., will acquire Xxxxxx; and
WHEREAS, the Executive was employed by Xxxxxx and, accordingly, the
Company (as successor to the business of Xxxxxx) wishes to ensure the employment
of the Executive with the Company and the Executive wishes to accept such
employment upon the terms and conditions hereinafter set forth; and
WHEREAS, it is intended that the Company and its subsidiaries will be
operationally combined under the management of the Executive who shall serve as
the Company's Chairman and Chief Executive Officer ("Company CEO") with other
companies which may be acquired by the Company (the Company and its
subsidiaries, together with such other companies are collectively called the
"Group");
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Employment
The Company agrees to employ the Executive during the Term specified in
paragraph 2, and the Executive agrees to accept such employment, upon the terms
and conditions hereinafter set forth.
2. Term
(a) Subject to Sections 6 and 7 below and the other terms and
conditions of this Agreement, the Executive's employment by the Company shall be
for a term commencing on the date hereof and expiring on the close of business
on December 31, 2007 (the "Initial Term"); provided, however, the term of the
Executive's employment by the Company shall continue thereafter unless and until
either party shall give to the other six months advance written notice of
expiration of the term (a "Notice of Termination") (the Initial Term and the
period, if any, thereafter, during which the Executive's employment shall
continue are collectively referred to as the "Term"). Any Notice of Termination
given under
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this paragraph 2(a) shall specify the date of expiration (which may not be
earlier than December 31, 2007) and may be given at any time on or after June
30, 2007. The Company shall have the right at any time during any such six month
notice period to relieve the Executive of his offices, duties and
responsibilities and to place him on a paid leave-of-absence status, provided
that during such notice period the Executive shall remain a full-time employee
of the Company and shall continue to receive his base salary compensation and
other benefits as provided in this Agreement. The effective date of the
termination of the Executive's employment with the Company, regardless of the
reason therefor, is referred to in this Agreement as the "Date of Termination".
(b) Upon termination of the employment of the Executive with
the Company pursuant to a Notice of Termination under paragraph 2(a) above, the
Company shall pay the Executive, subject to appropriate offsets, as permitted by
the applicable law, only for debts due from the Executive to the Company or
another company with the Group (collectively, "Offsets"), for so long as the
Executive is not in breach of his obligations to the Company under Section 8
hereof, his base salary compensation and any unused accrued vacation only
through, and any unpaid reimbursement expenses outstanding as of, the Date of
Termination. Any benefits to which the Executive or his beneficiaries may be
entitled under the plans and programs described in Section 5 below, or any other
applicable plans and programs in which he participated as an employee of the
Company, shall be determined as of the Date of Termination in accordance with
the terms of such plans and programs. In connection with the Executive's
termination of employment pursuant to paragraph 2(a), except as provided in this
paragraph 2(b), the Company shall have no further liability to the Executive or
the Executive's heirs, beneficiaries or estate for damages, compensation,
benefits, severance, indemnities or other amounts of whatever nature.
3. Duties and Responsibilities
(a) During the Term, the Executive shall have the position of
Chairman and Chief Executive Officer of the Company and any member of the Group
(unless Executive declines to serve in such capacity). The Executive shall
report to the Board of Directors (the "Board") of the Company.
(b) The Executive shall perform such duties and
responsibilities customary to his office and as are reasonably necessary to the
operations of the Company and the Group and as may be assigned to him from time
to time by or under authority of the Board consistent with his positions as
designated in paragraph 3(a) above.
(c) The Executive's employment by the Company shall be
full-time and during the Term, the Executive agrees that he will (i) devote all
of his business time and attention, his best
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efforts, and his skill and ability to promote the interests of the Group; (ii)
carry out his duties in a competent and professional manner; and (iii) work with
other employees of the Group in a competent and professional manner.
Notwithstanding the foregoing, the Executive shall be permitted to engage in
other business activities (as an active participant or a passive investor),
including without limitation, serving on civic or charitable boards and
committees and performing speaking engagements, provided that such activities
are not rendered for a company which transacts business with any member of the
Group or engages in business competitive with that conducted by any member of
the Group (or, if such company does transact business with a member of the Group
or does engage in a competitive business, it is a publicly held corporation and
the Executive owns less than 1/4 of 1% of its outstanding shares) and further
provided that such activities (individually or collectively) do not materially
interfere with the performance of his duties or responsibilities under this
Agreement.
(d) The Executive's services hereunder shall be performed at
the offices of the Company in Morton, Illinois, subject to necessary travel
requirements of his position and duties hereunder. The Executive shall not be
required to relocate without his prior written consent.
4. Compensation
As compensation for his services hereunder, the Company shall pay the
Executive during the Term, in accordance with its normal payroll practices,
direct salary compensation at an annual rate of $280,000, provided that such
annual rate of salary compensation shall be increased by not less than 5%
annually (but may not be decreased) under the authority of the Board and the
Board's Compensation Committee.
5. Expenses; Fringe Benefits
(a) The Company agrees to pay or to reimburse the Executive
during the Term for all reasonable, ordinary and necessary vouchered business or
entertainment expenses incurred in the performance of his services hereunder in
accordance with the policy of the Company and the Group as from time to time in
effect. The Executive, as a condition precedent to obtaining such payment or
reimbursement, shall provide to the Company any and all statements, bills or
receipts evidencing the travel or out-of-pocket expenses for which the Executive
seeks payment or reimbursement, and any other information or materials, as the
Company or the Group may from time to time reasonably require.
(b) During the Term, subject to the approval of the Board, the
Executive shall be eligible to participate in the incentive compensation plans
of the Company as in effect from time to time.
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(c) During the Term, the Executive and, to the extent
eligible, his dependents, shall be entitled to participate in and receive all
benefits under any welfare benefit plans and programs (including without
limitation, medical, dental, disability, group life (including accidental death
and dismemberment) and business travel insurance plans and programs) now or
hereafter provided by the Company which are applicable generally to the
employees of the Company, subject, however, to the generally applicable
eligibility and other provisions of the various plans and programs in effect
from time to time.
(d) During the Term, the Executive shall be entitled to
participate in all retirement plans and programs (including without limitation
any profit sharing/401(k) plan) which are applicable generally to the employees
of the Company, subject, however, to generally applicable eligibility and other
provisions of the various plans and programs in effect from time to time. In
addition, during the Term, the Executive shall be entitled to receive fringe
benefits and perquisites in accordance with the plans, practices, programs and
policies of the Company from time to time in effect which are available
generally to the officers of the Company and such other fringe benefits as may
from time to time be approved in writing by the Board.
(e) During the Term, the Company will provide the Executive
with the exclusive use of a Company leased automobile and pay for all costs of
leasing, insuring, and maintaining such automobile for use in the business of
the Company on a basis consistent with the pre-Merger policy of Xxxxxx, and such
costs shall be added to Executive's compensation as required by applicable tax
regulations.
(f) The Executive shall be entitled to vacation during each
calendar year of the Term on a basis consistent with the pre-Merger vacation
policy of Xxxxxx, to be taken at such time(s) as shall not, in the reasonable
judgment of the Company CEO, materially interfere with the Executive's
fulfillment of his duties hereunder, and shall be entitled to as many holidays,
sick days and personal days as are in accordance with the Company's policy then
in effect for its executive officers generally, upon such terms as may be
provided its executive officers generally.
(g) The Executive and Xxxxxx are currently parties to an
Executive Stock Option Agreement dated February 15, 1995, as amended (the
"Executive Stock Option Agreement"), pursuant to which the Executive holds
options to purchase 64,815 shares of Xxxxxx'x stock (the "Pre-Merger Options").
Pursuant to a separate agreement to be entered into by and between the Executive
and the Company, the Pre-Merger Options will be converted to options for Company
shares (but will be adjusted to reflect the effects of the Merger). This
Agreement is not otherwise intended to in any way modify or amend the Executive
Stock Option Agreement which shall remain in full force and effect.
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(h) Notwithstanding anything to the contrary contained above,
the Company shall be entitled to terminate or reduce any employee benefit or
perquisite enjoyed by the Executive pursuant to the provisions of paragraph
5(b), 5(c) 5(d) and 5(f) above, if such reduction is part of an across-the-board
reduction applicable to all executive officers of the Company.
6. Termination
(a) The Company, by direction of the Board, shall be entitled
to terminate the Term and to discharge the Executive for "cause" effective upon
the giving of written notice. The term "cause" shall be limited to the following
grounds:
(i) Conviction in a court of law of, or entering a plea of
guilty or no contest to, any felony or any crime involving dishonesty or theft.
Upon the termination of the employment of the Executive with the Company (x)
pursuant to this paragraph 6(a) or (y) by virtue of the Executive's resignation
other than as described in paragraph 2(a) above or paragraph 6(b) below, or (z)
any other termination by the Executive other than pursuant to a termination
under paragraph 2(a) above or paragraph 6(b) below (each event of termination
set forth in clauses (x), (y) and (z) is sometimes referred to as a "For Cause
Termination"), the Company shall pay the Executive, subject to any Offsets, his
base salary compensation and any unused accrued vacation only through, and any
unpaid reimbursable expenses outstanding as of, the Date of Termination. Any
benefits to which the Executive or his beneficiaries may be entitled under the
plans and programs described in Section 5 above, or any other applicable plans
and programs in which he participated as an employee of the Company, shall be
determined as of his Date of Termination in accordance with the terms of such
plans and programs. In connection with a For Cause Termination, except as
provided in this paragraph 6(a) and paragraph 20(c) below, the Company shall
have no further liability to the Executive or the Executive's heirs,
beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amounts of whatever nature.
(b) The Executive shall be entitled to terminate the Term
hereunder in the event that the Company is in default of a material term of this
Agreement, which default remains uncured for a period of 30 days after written
notice of such default from the Executive to the Company (such notice to specify
the specific nature of the claimed default and the manner in which the Executive
requires such default to be cured) (a "Constructive Termination").
Notwithstanding a Constructive Termination, or in the event the Company
terminates the employment of the Executive in breach of its obligations under
this Agreement, the restrictions set forth in paragraph 8 shall remain in full
force and effect.
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(c) In the event of a Constructive Termination, or a
termination of the employment of the Executive by the Company in breach of its
obligations under this Agreement (each such event being called a "Company
Termination"), as liquidated damages, the Executive shall be entitled to
continue to receive from the Company, subject to any Offsets, (i) for so long as
the Executive is not in breach of his obligations to the Company under Section 8
hereof, his then applicable base salary compensation when otherwise payable
through the minimum remaining Term hereof absent the Company Termination, and
(ii) any unpaid reimbursable expenses outstanding, and any unused accrued
vacation, as of the Date of Termination. For this purpose, the "minimum
remaining Term" shall mean (x) December 31, 2007 if the Company Termination
occurs on or prior to June 30, 2007, or (y) six months from the Company
Termination, if such termination occurs after June 30, 2007. Any benefits to
which Executive or his beneficiaries may be entitled under the plans and
programs described in Section 5 above, or any other applicable plans and
programs in which he participated as an employee of the Company, shall be
determined as of the Date of Termination in accordance with the terms of such
plans and programs; provided, however, that the Executive shall be entitled to
continued participation on the same basis (including without limitation, cost
contributions) as the other senior executives of the Company in all medical,
dental, hospitalization, disability and life insurance coverage (the "Continued
Plans") in which he was participating on the Date of Termination (as such
Continued Plans are from time to time in effect at the Company) until the
earlier of (A) the end of the period that he receives base salary compensation
payments under clause (i) above or (B) the date, or dates, he is entitled to
receive coverage and benefits under the same type of plan of a subsequent
employer, and provided further: (1) that if the Executive is precluded from
continuing his participation in any Continued Plan, he shall be provided with
the after-tax economic equivalent of the benefits provided under the Continued
Plan in which he is unable to participate, for the period specified above; (2)
that the economic equivalent of a benefit foregone shall be deemed the lowest
cost that would be incurred by the Executive in obtaining such benefit himself
on an individual basis; and (3) that payment of such after-tax economic
equivalent shall be made quarterly in advance. Except as provided in this
paragraph 6(c) and paragraph 20(c) below in connection with a Company
Termination, (x) the Company shall have no further liability to the Executive or
the Executive's heirs, beneficiaries or estate for damages, compensation,
benefits, severance, indemnities or other amounts of whatever nature and (y) the
Executive shall be under no obligation to mitigate his damages or to seek other
employment and any income the Executive earns from subsequent employment or
consulting shall not reduce payments by the Company under clause (i) of this
paragraph 6(c) or otherwise.
(d) It is agreed that a termination of the
Executive's employment pursuant to a Notice of Termination given in accordance
with paragraph 2(a) above shall not be deemed a Company
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Termination or a For Cause Termination. It is also agreed that any termination
of the Executive's employment by the Company for any breach or alleged breach of
this Agreement by the Executive (other than as provided in paragraph 6(a) above)
shall be deemed to be a Company Termination and not a For Cause Termination.
7. DISABILITY; DEATH
(a) In the event the Executive shall be unable to perform his
duties hereunder by virtue of illness or physical or mental incapacity or
disability (from any cause of causes whatsoever) in substantially the manner and
to the extent required hereunder prior to the commencement of such disability
(all such causes being herein referred to as "disability") and the Executive
shall fail to perform such duties for periods aggregating 270 days, whether or
not continuous, in any continuous period of 360 days, the Company shall have the
right to terminate the Executive's employment hereunder as at the end of any
calendar month during the continuance of such disability upon at least 30 days'
prior written notice to him. In the event of the Executive's death, the Date of
Termination shall be the date of such death.
(b) In the event the Executive's employment terminates
pursuant to paragraph 7(a), the Executive, or in the case of his death, the
Executive's estate, shall be entitled to receive when otherwise payable, subject
to any Offsets, (i) all base salary compensation earned but unpaid as of the
Date of Termination and (ii) any unpaid reimbursable expenses outstanding, and
any unused accrued vacation, as of such date. Any benefits to which the
Executive or his beneficiaries may be entitled under the plans and programs
described in Section 5 above or any other applicable plans and programs in which
he participated as an employee of the Company, shall be determined as of the
Date of Termination in accordance with the terms of such plans and programs. In
the event of the Executive's termination due to disability or death, except as
provided in this paragraph 7(b) and paragraph 20(c) below, the Company shall
have no further liability to the Executive or the Executive's heirs,
beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amounts of whatever nature.
8. NON-SOLICITATION/NON-SUPPLY AND PROTECTION OF CONFIDEN-
TIAL INFORMATION
(a) The Executive agrees that his services hereunder are of a
special, unique and extraordinary character and his position with the Group and
the Company (as successor to the business of Xxxxxx) places him in a position of
confidence and trust with the customers and employees of the Company and other
members of the Group. The Executive acknowledges (x) that from time to time
members of the Group cooperate with each other in supplying current customers
and/or the solicitation of prospective customers and (y) that the rendering of
services and the supply of products to the
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customers of the Group necessarily requires the disclosure to the Executive of
confidential information and trade secrets of the Company and the Group (such as
without limitation, marketing plans, budgets, designs, client preferences and
policies, and identity of appropriate personnel of customers with sufficient
authority to influence a shift in suppliers). The parties hereto agree that in
the course of the Executive's employment with the Company and its predecessors,
the Executive has and will continue to develop a personal relationship with the
Group's customers and a knowledge of those customers' affairs and requirements,
and that the relationship of the Group with its established customers has been
and will continue to be placed in the Executive's hands in confidence and trust.
The Executive consequently agrees that it is reasonable and necessary for the
protection of the trade secrets, goodwill and business of the Company and the
Group that the Executive make the covenants contained herein. Accordingly, the
Executive agrees that for the period commencing on the date hereof and
terminating the later of (1) December 31, 2009 and (2) two years after the Date
of Termination, he shall not, as an individual, partner, shareholder, employee,
consultant or in association with any other person, business or enterprise,
except on behalf of the Company or another member of the Group, directly or
indirectly, and regardless of the reason for his ceasing to be employed by the
Company:
(i) attempt in any manner to solicit or accept from
any customer business of the type performed by members of the Group or to
persuade any customer to cease to do business or to reduce the amount of
business which any such customer has customarily done or is reasonably expected
to do with any member of the Group, whether or not the relationship between such
member of the Group and such customer was originally established in whole or in
part through his efforts.
(ii) employ as an employee or retain as an
exclusive consultant any person who is then or at any time during the preceding
twelve months was an employee of or consultant to any member of the Group, or
persuade or attempt to persuade any employee of or consultant to any member of
the Group to leave the employ of such member of the Group or to become employed
as an employee or retained as an exclusive consultant by anyone other than by a
member of the Group; or
(iii) supply to or for any customers any products
or services of the type supplied by members of the Group, as an independent
contractor or employee of the customer or in any other capacity whatsoever.
As used in paragraph 8(a) through paragraph 8(e), the term "Group" shall include
the Company and each other member of the Group and the term "customer" shall
mean (1) anyone who is a customer of any member of the Group on the Date of
Termination or, if the Executive's employment shall not have terminated, at
the time of the alleged prohibited conduct (any such applicable date being
called
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the "Determination Date"); (2) anyone who was a customer of any member of the
Group at any time during the one year period immediately preceding the
Determination Date; (3) any prospective customer to whom any member of the Group
had made a new business presentation (or similar offering of products or
services) at any time during the one year period immediately preceding the
Determination Date; and (4) any prospective customer to whom any member of the
Group made a new business presentation (or similar offering of products or
services) at any time within six months after the Determination Date (but only
if the initial contract between such member of the Group and such prospective
customer occurred prior to the Determination Date, regardless if such contact
was made by the Executive). In addition, if the customer is part of a group of
companies which conducts business through more than one entity, division or
operating unit, whether or not separately incorporated (a "Customer Group"), the
term "customer" as used herein shall include each entity, division and operating
unit of the Customer Group.
(b) At any time while this paragraph 8 remains applicable
after the Executive is no longer employed by the Company, it shall be the
responsibility of the Executive to ascertain whether a prospect is a "customer"
as defined in this paragraph 8, of any member of the Group, if necessary by
making written inquiry of the Company, prior to soliciting or accepting from any
such prospect business of the type performed by members of the Group or supply
to or for any such prospect any products or services of the type supplied by
members of the Group. Within ten business days after receipt of such inquiry,
the Company shall notify the Executive in writing as to whether such prospect is
a customer within the meaning of this paragraph 8, and if the Company determines
that such prospect is a customer, such notification shall include the reasons
for the Company's determination set forth with reasonably specificity.
(c) The Executive also agrees that he will not at any time
(whether during the Term or after termination of this Agreement), disclose to
anyone any confidential information or trade secret of any member of the Group,
or any customer of any member of the Group, or utilize such confidential
information or trade secret for his own benefit, or for the benefit of third
parties and all memoranda, notes, records or other documents compiled by him or
made available to him during the Term pertaining to the business of members of
the Group and/or their respective customers shall be the property of the Company
and shall be delivered immediately to the Company on the termination of his
employment or, upon request, at any other time. The term "confidential
information or trade secret" does not include information which (i) becomes
generally available to the public other than by breach of this provision or (ii)
the Executive learns from a third party who is not under an obligation of
confidence to the Company, or another member of the Group.
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(d) If the Executive commits a breach or is about to commit a
breach, of any of the provisions of paragraphs 8(a) or 8(c) above, the Company
shall have the right to have the provisions of this Agreement specifically
enforced by any court having equity jurisdiction without being required to post
bond or other security and without having to prove the inadequacy of the
available remedies at law, it being acknowledged and agreed that any such breach
or threatened breach will cause irreparable injury to the Company and the Group
and that money damages will not provide an adequate remedy to the Company or the
Group. In addition, the Company may take all such other actions and remedies
available to it under law or in equity and shall be entitled to such damages as
it can show it has sustained by reason of such breach.
(e) The parties acknowledge that the type and periods of
restriction imposed in the provisions of paragraphs 8(a) and 8(c) above are fair
and reasonable and are reasonably required for the protection of the Company and
the Group and the goodwill associated with the business of the Company and the
Group; and that the time, scope, geographic area and other provisions of this
paragraph 8 have been specifically negotiated by sophisticated commercial
parties and are given as an integral part of the transactions contemplated by
the Merger Agreement, it being understood that the customers of the Group may be
supplied from any location and accordingly it is reasonable that the restrictive
covenants set forth herein are not limited by narrow geographic area but
generally by the location of such customers and potential customers. The
Executive specifically acknowledges that his being restricted from soliciting
and supplying customers as contemplated by this Agreement will not prevent him
from being employed or earning a livelihood in the type of business conducted by
the members of the Group. If any of the covenants in paragraphs 8(a) or 8(c)
above, or any part thereof, is hereafter construed to be invalid or
unenforceable, the same shall not affect the remainder of the covenant or
covenants, which shall be given full effect, without regard to the invalid
portions. If any of the covenants contained in paragraphs 8(a) and 8(c), or any
part thereof, is held to be unenforceable by reason of its extending for too
great a period of time or over too great a geographic area or by reason of its
being too extensive in any other respect, the parties agree (i) such covenant
shall be interpreted to extend only over the maximum period of time for which it
may be enforceable and/or over the maximum geographic areas as to which it may
be enforceable and/or over the maximum extent in all other respects as to which
it may be enforceable, all as determined by the court making such determination
and (ii) in its reduced form, such covenant shall then be enforceable. The
parties hereto intend to and hereby confer jurisdiction to enforce the covenants
contained in paragraphs 8(a) and 8(c) above upon the courts of any state or
other jurisdiction within the geographical scope of such covenants. In the event
that the courts of any one or more of such states or other jurisdictions shall
hold such covenants unenforceable (in whole or in part) by reason of the breadth
of such scope or otherwise, it is the
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intention of the parties hereto that such determination not bar or in any way
affect the right of the Company to the relief provided above in the courts of
any other states or other jurisdictions within the geographical scope of such
covenants, as to breaches of such covenants in such other respective states or
other jurisdictions, the above covenants as they relate to each state or other
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
9. INTELLECTUAL PROPERTY
During the Term, the Executive will disclose to the Company all ideas,
inventions and business plans developed by him during such period which relate
directly or indirectly to the business of the Group, including without
limitation, any design, logo, slogan or campaign or any process, operation,
product or improvement which may be patentable or copyrightable. The Executive
agrees that all patents, licenses, copyrights, tradenames, trademarks, service
marks, advertising campaigns, promotional campaigns, designs, logos, slogans and
business plans developed or created by the Executive in the course of his
employment hereunder, either individually or in collaboration with others, will
be deemed works for hire and as between the Executive and the Company the sole
and absolute property of the Company, subject to the rights of customers and
others contracting with the Company. The Executive agrees, that at the Company's
request and expense, he will take all steps necessary to secure the rights
thereto to the Company by patent, copyrights or otherwise.
10. ENFORCEABILITY
The failure of any party at any time to require performance by another
party of any provision hereunder shall in no way affect the right of that party
thereafter to enforce the same, nor shall it affect any other party's right to
enforce the same, or to enforce any of the other provisions in this Agreement;
nor shall the waiver by any party of the breach of any provision hereof be taken
or held to be a waiver of any subsequent breach of such provision or as a waiver
of the provision itself.
11. ASSIGNMENT
This Agreement is a personal contract and the Executive's rights and
obligations hereunder may not be sold, transferred, assigned, pledged or
hypothecated by the Executive. The rights and obligations of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company.
12. MODIFICATION
This Agreement may not be orally canceled, changed, modified
or amended, and no cancellation, change, modification or amendment
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shall be effective or binding, unless in writing and signed by the
parties to this Agreement.
13. SEVERABILITY; SURVIVAL
In the event any provision or portion of this Agreement is determined
to be invalid or unenforceable for any reason, in whole or in part, the
remaining provisions of this Agreement shall nevertheless be binding upon the
parties with the same effect as thought the invalid or unenforceable part had
been severed and deleted. The respective rights and obligations of the parties
hereunder shall survive the termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
14. LIFE INSURANCE
The Executive agrees that the Company shall have the right to obtain
life insurance on the Executive's life, at the sole expense of the Company, as
the case may be, and with the Company as the sole beneficiary thereof. The
executive shall (a) cooperate fully in obtaining such life insurance, (b) sign
any necessary consents, applications and other related forms or documents and
(c) take any reasonably required medical examinations.
15. NOTICE
Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon personal delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission (if receipt is electronically confirmed) or prepaid
overnight courier service, and in each case addressed as follows:
If to the Executive:
Xxxxxxx X. Xxxxxx
0000 X. Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
If to the Company:
Xxxxxx Industrial Group, Inc.
P. O. Box 429
0000 X. Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
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with copy to:
Husch & Eppenberger
800 Central Building
000 X.X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner provided for
giving notice.
16. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois without application of conflict of law
provisions applicable herein. The parties hereby irrevocably submit to the
personal jurisdiction of the United States District Court for the Central
District of Illinois located in Peoria, Illinois or the courts of the State of
Illinois located in Peoria County, Illinois in any action or proceeding arising
out of or relating to this Agreement in any way, and hereby irrevocably agree
that all claims in respect of any such action or proceeding may be heard and
determined in any such court. In furtherance thereof, the parties hereby
irrevocably consent to the service of any summons and complaint and any other
process which may be served in any action or proceeding arising out of or
related to this Agreement in any way brought in the United States District Court
for the Central District of Illinois located in Peoria, Illinois or the courts
of the State of Illinois located in Peoria County, Illinois by the mailing by
certified or registered mail of copies of such process to their respective
addresses as set in paragraph 15 of this Agreement, and the parties hereby
irrevocably waive any objection which any of them now or hereafter may have to
the laying of venue of any action or proceeding arising out of or relating to
this Agreement in any way brought in the United States District Court for the
Central District of Illinois located in Peoria, Illinois or the courts of the
State of Illinois located in Peoria County, Illinois and any objection on the
ground that any such action or proceeding in any of such courts has been brought
in an inconvenient forum. EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING UNDER THIS AGREEMENT.
17. NO CONFLICT
The Executive represents and warrants that he is not subject to any
agreement, instrument, order, judgment or decree of any kind, or any other
restrictive agreement of any character, which would prevent him from entering
into this agreement or which would be breached by the Executive upon his
performance of his duties pursuant to this Agreement.
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14
18. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Company and
the Executive with respect to the subject matter hereof, and all prior
agreements, plans and arrangements relating to the employment of the Executive
by the Company are nullified and superseded hereby.
19. HEADINGS
The headings contained in this Agreement are for reference purposes
only, and shall not affect the meaning or interpretation of this Agreement.
20. MISCELLANEOUS
(a) The Company may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(b) Following the date hereof and regardless of any dispute
that may arise in the future, the Executive will not, and will use his best
efforts to cause his business associates to not, disparage, criticize or make
statements to the detriment of the Company, the Group or any of their
affiliates; and the Company will not, and will use its best efforts to cause
their affiliated companies to not, disparage, criticize or make statements to
the detriment of the Executive.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the rights of the Executive under the provisions of the Company
by-laws relating to indemnification of directors and officers shall survive any
termination of this Agreement.
(d) The Executive acknowledges that Executive has consulted or
has had the opportunity to consult his own attorney in connection with this
Agreement.
(e) This Agreement shall become effective only if this
Agreement has been approved by the holders of record of stock of Morton
representing more than 75% of the voting power of all outstanding stock of
Morton, determined without regard to any stock owned or constructively owned by
any "disqualified individual" (as defined in Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code")) who will be receiving
compensation that, absent satisfaction of certain shareholder approval
requirements would constitute "parachute payments" under Section 280G of the
Code, prior to the effective date of the Merger.
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21. SHAREHOLDERS AGREEMENT
Concurrently with the effective date of the Merger, the Executive, as a
shareholder in the Company, will enter into a Shareholders Agreement dated
October 20, 1997 (the "Shareholders Agreement") with certain other shareholders
of the Company pursuant to which the Executive will be given the right to vote
certain Company shares held by such other shareholders. For purposes of the
Shareholders Agreement, the Executive's employment with the Company shall be
deemed to continue (and his voting rights under the Shareholders Agreement shall
continue) unless a For Cause Termination of the Executive's employment with the
Company occurs pursuant to paragraph 6(a) above or the Executive's employment
with the Company is terminated by death or disability pursuant to paragraph 7(a)
above. In the event of any conflict between the provisions of this Agreement and
the provisions of the Shareholders Agreement with respect to the matters covered
in this Section 21 of this Agreement, provisions of the Shareholders Agreement
shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXX INDUSTRIAL GROUP, INC.
By Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title:Vice President
Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx, Executive
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