EMPLOYMENT AGREEMENT
This Agreement is effective May 1, 2000 (the "Effective Date"), by and
between Starcraft Corporation, an Indiana corporation ("Employer"), and Xxxxxxx
X. Xxxxxx ("Employee").
W I T N E S S E T H
WHEREAS, Employee is employed by Employer as its Chief Financial
Officer for itself and each of its subsidiaries and affiliates, except Tecstar
("Job Responsibilities");
WHEREAS, Employer desires to provide fair and reasonable benefits to
Employee on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Employer desires reasonable protection of its confidential
business and customer information which it has developed over the years at
substantial expense and assurance that Employee will not compete with Employer
for a reasonable period of time after termination of his employment with
Employer, except as otherwise provided herein.
NOW, THEREFORE, in consideration of these premises, the mutual
covenants and undertakings herein contained and the continued employment of
Employee to perform Job Responsibilities for Employer, Employer and Employee,
each intending to be legally bound, covenant and agree as follows:
1. Upon the terms and subject to the conditions set forth in this
Agreement, Employer employs Employee to perform Job Responsibilities for
Employer, and Employee accepts such employment. Employee will devote best
efforts to the service of Employer, to perform such duties as may be assigned
and not to engage in other employment and/or activities that conflict with or
impair his obligations as an employee of Employer.
2. Employee agrees to serve as Employer's Chief Financial Officer for
Employer and its subsidiaries in connection with the Job Responsibilities and to
perform such Job Responsibilities in that office as may reasonably be assigned
to him by Employer's President, or Board of Directors, from time to time.
Employee shall devote substantially all his business time and efforts to
Employer's business and shall not engage in any other business.
3. The term of this Agreement shall begin on the "Effective Date" and
shall end on the date which is one (1) year following such date (the
"Anniversary Date"); provided, however, that such term shall be extended for
additional one (1) year terms on each Anniversary Date, unless either party
hereto gives written notice to the other party not to so extend within ninety
(90) days prior to such Anniversary Date, in which case no further extension
shall occur and the term of this Agreement shall end on the Anniversary Date as
of which the notice not to extend is given (such term, including any extension
thereof shall herein be referred to as the "Term"). A notice not to extend by
either party shall be a termination of employment prior to expiration of the
Term of this Agreement for all purposes of this Agreement, including section 7
and section 8 hereof. Such notice not to extend shall be in the form of the
"Notice of Termination" defined in section 10 hereof, and shall contain specific
reference to specific provisions of section 7 hereof relied upon for any such
termination on the Anniversary Date or otherwise.
4. Employee shall receive an annual salary of One Hundred Sixty-five
Thousand Dollars ($165,000) ("Base Compensation") payable at regular intervals
in accordance with Employer's normal payroll practices now or hereafter in
effect. Employer may consider and declare from time to time increases in the
salary it pays Employee and thereby increases in his Base Compensation. Employer
may also declare decreases in the salary it pays Employee if the operating
results of Employer are significantly less favorable than those for the fiscal
year then ending, and Employer makes similar decreases in the salary it pays
other senior executive officers of Employer.
5. So long as Employee is employed pursuant to this Agreement, he
shall be included as a participant in all present and future employee benefit,
retirement, and compensation plans generally available to employees of Employer,
consistent with his Base Compensation, his Job Responsibilities and his position
as Chief Financial Officer of Employer and its subsidiaries, including, without
limitation, Employer's 401(k) plan, stock incentive plan, Executive Bonus Plan,
split dollar life insurance program, and group life insurance plans
(collectively, "Benefit Plans").
6. So long as Employee is employed by Employer pursuant to this
Agreement, Employee shall receive reimbursement from Employer for all reasonable
business expenses approved by Employer, upon submission to Employer of written
vouchers and statements for reimbursement.
7. Subject to the respective continuing obligations of the parties,
including but not limited to those set forth in subsections 8(A), 8(B), 8(C) and
8(D) hereof, Employee's employment by Employer may be terminated effective on
any Anniversary Date or otherwise prior to the expiration of the Term of this
Agreement as follows:
(A) Employer, upon written notice to Employee, may terminate
Employee's employment with Employer at any time for cause. For
purposes of this subsection 7(A), "cause" shall be defined as
(i) misconduct, (ii) breach of fiduciary duty involving
personal profit, (iii) intentional failure to perform stated
duties, (iv) conviction of a violation of any law, rule, or
regulation (other than minor traffic violations), or (v) any
breach of any term, condition or covenant of this Agreement.
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(B) Employer may fail to renew this Agreement effective any
Anniversary Date, or may terminate Employee's employment with
Employer at any time, without cause.
(C) Employee, by written notice to Employer, may terminate his
employment with Employer at any time for cause. For purposes
of this subsection 7(C), "cause" shall be defined as (i) any
action by Employer to remove Employee as Chief Financial
Officer of Employer and its subsidiaries, except where the
Employer acts to remove Employee from such office for "cause"
as defined in subsection 7(A) hereof, or (ii) breach by
Employer of a term, condition or covenant of this Agreement.
(D) Except as otherwise provided in section 3 regarding nonrenewal
on any Anniversary Date, and in addition thereto, Employee, at
any time and upon thirty (30) days written notice to Employer,
may terminate his employment with Employer without cause.
8. In the event of termination of Employee's employment with Employer
pursuant to section 7 hereof, which shall include a nonrenewal of this Agreement
on any Anniversary Date as provided in section 3 hereof, compensation shall
continue to be paid by Employer to Employee as follows:
(A) In the event of termination for cause by Employer or without
cause by Employee pursuant to subsection 7(A) or 7(D),
respectively, compensation provided for herein (including Base
Compensation) shall continue to be paid, and Employee shall
continue to participate in the Benefit Plans and other
perquisites as provided in sections 5 and 6 hereof, through
the date of termination specified in the notice of
termination. Any benefits payable under such Benefit Plans as
a result of Employee's participation in such plans through
such date shall be paid when due under those plans. The date
of termination specified in any notice of termination pursuant
to subsection 7(A) shall be no later than the last business
day of the month in which such notice is provided to Employee.
(B) In the event of termination without cause by Employer or with
cause by Employee pursuant to subsection 7(B) or 7(C),
respectively, compensation provided for herein (including Base
Compensation) shall continue to be paid, and Employee shall
continue to participate in the Benefit Plans and other
perquisites as provided in sections 5 and 6 hereof, through
the date of termination specified in the notice of
termination. Any benefits payable under such Benefit Plans as
a result of Employee's participation in such plans through
such date shall be paid when due under those plans. In
addition, Employee shall be entitled to continue to receive
from Employer his Base Compensation at the rates in effect at
the time of termination and benefits under the health and life
insurance plans for one (1) additional six (6) month period,
provided, however that Employer will not maintain any other
Benefit Plan for the continued benefit of Employee and his
dependents during such period.
9. In order to induce Employer to enter into this Agreement, Employee
agrees as follows:
(A) Unless otherwise required to do so by law, including the order
of a court or government agency, Employee shall not divulge or
furnish trade secrets (as defined in IND. CODE Sec. 24-2-3-2)
of Employer or any confidential information acquired by him
while employed by Employer concerning the policies, plans,
procedures or customers of Employer to any person, firm or
corporation, other than Employer or upon its written request,
or use any such trade secret or confidential information
directly or indirectly for Employee's own benefit or for the
benefit of any person, firm or corporation other than
Employer, since such trade secrets and confidential
information are confidential and shall at all times remain
property of Employer.
(B) That during his employment with Employer, and for a period of
one (1) year after termination of Employee's employment by
Employer for reasons other than those set forth in subsections
7(B) or (C) of this Agreement, Employee shall not: (a)
compete, directly or indirectly, with the business of Employer
(and any of its subsidiaries or affiliates) as conducted
during the term of this Agreement (defined as van, sport
utility, bus, and truck conversions and original equipment
manufacturer approved supplier), or have any interest
(including any interest or association, including but not
limited to, that of owner, part owner, partner, shareholder,
director, officer, employee, agent, consultant, lender or
advisor) in any person, firm or entity which competes with
Employer in the geographic area described on the attached
Exhibit A (each such person, firm or entity is referred to as
"Competitor"); (b) solicit or accept business for or on behalf
--------- of any Competitor; (c) solicit, induce or persuade,
or attempt to solicit, induce or persuade, any person to work
for or provide services to or provide financial assistance to,
any Competitor; (d) solicit or accept for or on behalf of or
for the benefit of any Competitor, any business from any
person, firm or entity which during the term of this Agreement
was a vendor or supplier to, or subcontractor for, or
commercial purchaser from, Employer; or (e) engage in any
business, either as an owner or representative or employee or
otherwise, that is competitive with any business engaged in by
Employer or any of its affiliates if my involvement in such
business would require the performance of duties and
acceptance of responsibilities the same or substantially
similar to those performed and assumed during Employee's
employment with Employer. Employee recognizes that Employer
and its affiliates market products worldwide and, therefore,
performance of the same or substantially similar duties in any
geographic region would be detrimental to Employer's
legitimate interests; Employer has a legitimate interest which
these provisions are reasonably necessary to
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protect; the restrictions on competition contained herein are
reasonable in time and geographic scope; and Employee is, and
shall not be, unreasonably restricted in gainful employment by
these provisions.
(C) If Employee's employment by Employer is terminated for any
reason by either Employee or Employer, Employee will turn over
immediately thereafter to Employer all business
correspondence, letters, papers, reports, customers' lists,
financial statements, records, drawings, credit reports or
other confidential information or documents of Employer or its
affiliates in the possession or control of Employee, all of
which writings are and will continue to be the sole and
exclusive property of Employer or its affiliates.
(D) If Employee's employment by Employer is terminated during the
Term of this Agreement for reasons set forth in subsections
7(B) or (C) of this Agreement, Employee shall have no
obligations to Employer with respect to noncompetition under
subsections 9(A) and 9(B).
10. Any termination of Employee's employment with Employer as
contemplated by section 3 and section 7 hereof, except in the circumstances of
Employee's death, shall be communicated by written "Notice of Termination" by
the terminating party to the other party hereto. Any "Notice of Termination"
must refer to one or more of subsections 7(A), 7(B), 7(C), or 7(D) and shall
indicate the specific provisions of this Agreement and one or more of such
subsections of section 7 relied upon, and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for such termination
under one or more of such subsections of section 7.
11. Anything in this Agreement to the contrary notwithstanding, payment
of Base Compensation by the Employer or to or for the benefit of the Employee
pursuant to subsection 8(B) hereof shall be inclusive of payments attributable
to the confidentiality and noncompetition covenants of section 9 hereof and
shall be payable whether or not deductible by the Employer for federal income
tax purposes.
12. If a dispute arises regarding other provisions of this Agreement,
including enforcement of the confidentiality and noncompetition provisions
hereof, then such shall be heard only by the judge and not by a jury, in any
court of general jurisdiction in Elkhart County, Indiana, to which sole and
exclusive jurisdiction each party irrevocably consents. The prevailing party
shall be entitled to its costs, expenses and reasonable attorney's fees. No
attempt will be made to consolidate, by counterclaim or otherwise, any such
action or proceeding with any other action or proceeding in which there is a
trial by jury or in which a jury trial cannot be or has not been waived.
13. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been given when personally delivered, or mailed by United States registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to Employee: Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxxx
Xxxxx Xxxx, XX 00000
If to Employer: Starcraft Corporation
0000 Xxxxxxx Xxxxxx
Post Office Box 1903
Goshen, IN 46526
Attention: Xxxxxxx X. Xxxxxxxxxx, President
Or to such address as either party herein may have furnished to the other party
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
14. The validity, interpretation, and performance of this Agreement
shall be governed by the laws of the State of Indiana. No agreements or
representation, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth in
this Agreement. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement which shall remain in full force and effect. This
Agreement is binding upon and inures to the benefit of personal representatives,
heirs, successors and assigns.
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed and delivered this 1st day of September, 2000.
"Employee" "Employer"
STARCRAFT CORPORATION
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxxxx,
Its: President
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EXHIBIT A
In Japan, Europe, and any of the 48 contiguous States of the United
States of America; it being acknowledged by Employee that the Company conducts
business in all such States, and also it is acknowledged by Employee that the
Company presently conducts a substantial amount of its business in each of the
following States:
Wisconsin
Michigan
Illinois
Indiana
Ohio
Pennsylvania
New York
Oklahoma
Texas
California
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