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EXHIBIT 10.16
FORM OF EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT, dated as of August 13, 1996 (this
"Agreement"), by and between Aetna Industries, Inc., a Delaware corporation
("Aetna"), MS Acquisition Corp., a Delaware Corporation ("MS Acquisition"; and
together with Aetna, the "Companies"), and Ueli Spring (the "Executive").
WHEREAS, the Executive entered into certain agreements and arrangements as
listed and described in Exhibit A hereto under the caption "Prior Agreements to
be Terminated" (the "Prior Agreements") with the Companies, and/or its direct
or indirect subsidiaries;
WHEREAS, the Companies and the Executive desire to terminate the Prior
Agreements; and
WHEREAS, the Companies desire to employ the Executive as President and
Chief Executive Officer, and the Executive desires to be retained in such
capacities, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
made herein, the Companies and the Executive agree as follows:
1. Prior Agreements. The Executive represents and warrants to the
Companies that the Prior Agreements are the only agreements between MS
Acquisition, Aetna or any of their respective direct or indirect, current or
former subsidiaries on the one hand, and the Executive and his Affiliates and
Associates, on the other. The Companies and the Executive hereby terminate the
Prior Agreements and the Executive hereby releases the Companies and their
respective direct or indirect subsidiaries from all payments and other
obligations thereunder, if any.
2. Employment; Duties. The Companies shall employ the Executive as
President and Chief Executive Officer for the "Employment Period" as defined in
Section 3. The Executive, in his capacity as President and Chief Executive
Officer, shall report to the Boards of Directors of the Companies and shall have
such duties, responsibilities and authority normally incident to such office,
including responsibility for the day-to-day operations of the Companies, subject
to the provisions of the Bylaws of the Companies. Subject to the foregoing, the
precise duties, responsibilities and authority of the Executive may be expanded,
limited or modified, from time to time, at the discretion of the Boards of
Directors of the Companies. During the Employment Period, the Executive shall
render his business services solely in the performance of his duties hereunder.
The Executive agrees that during the term of his employment hereunder, he shall
devote his full working time, attention, knowledge and experience and give his
best effort, skill and abilities, exclusively to promote the business and
interests of MS Acquisition, Aetna and their respective direct and indirect
subsidiaries. The Executive may not serve as an officer or
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director of, make investments in, or otherwise participate in, any other entity
without the prior written consent of the Boards of Directors of the Companies;
provided, that the foregoing shall not be deemed to prohibit the Executive from
acquiring, directly or indirectly, solely as an investment, not more than two
percent (2%) of any class of securities of any entity, other than MS
Acquisition, that are registered under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, including the regulations issued thereunder;
and provided further, that so long as it does not interfere with the
Executive's employment, the Executive may (a) serve as an officer, director or
otherwise participate in purely educational, welfare, social, religious and
civic organizations, and (b) manage personal and family investments.
3. Employment Period. This Agreement shall have a term of three years,
commencing as of the date hereof and ending on the third anniversary of the date
hereof (the "Initial Period"), unless sooner terminated in accordance with the
provisions of Section 8 or Section 9. On the expiration of the Initial Period
and on each yearly anniversary thereof, this Agreement shall automatically renew
for an additional one-year period (each such one-year period being referred to
as a "Renewal Period"), unless sooner terminated in accordance with the
provisions of Section 8 or Section 9, unless either of the Companies or the
Executive notifies the other in writing of its intention not to renew this
Agreement not less than ninety (90) days prior to such expiration date or
anniversary, as the case may be. The term of this Agreement, as in effect from
time to time, is referred to herein as the "Employment Period".
4. Compensation and Benefits.
(a) Base Compensation. The Executive shall be paid an aggregate base
salary (the "Base Salary") of $225,000 per annum, less statutory deductions and
withholdings. The Base Salary shall be payable in a manner consistent with the
normal payroll practices of the Companies in effect from time to time. The
Boards of Directors of the Companies, in their sole discretion, or at the
recommendation of the Compensation Committee, may increase (but not decrease)
the Base Salary, at any time.
(b) Annual Bonus. In addition to the Base Salary, the Executive may
be entitled to receive an aggregate discretionary annual bonus for each fiscal
year of Aetna that ends during the Employment Period of up to 100% of his annual
Base Salary (the "Bonus Award") based upon the achievement, as determined by the
Boards of Directors of the Companies, of annual Aetna and individual performance
goals to be set by the Board of Directors of Aetna, in consultation with the
Executive, and included in Aetna's annual business plan, a copy of which shall
be provided to the Executive.
(c) Benefits. The Executive shall also be entitled to participate
in the employee benefit and group insurance programs provided by the Companies
for their officers and employees generally and in accordance with the terms of
the applicable plan documents as they may be revised from time to time. In
addition, the Executive shall be entitled, during the
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Employment Period, to the continuation of those benefits identified on Exhibit
A hereto under the caption "Continuing Individual Benefits."
5. Trade Secrets. The Executive recognizes that it is in the legitimate
business interest of the Companies to restrict his disclosure or use of Trade
Secrets and Confidential Information relating to MS Acquisition, Aetna and their
respective direct or indirect subsidiaries for any purpose other than in
connection with his performance of his duties to the Companies, and to limit any
potential appropriation of such Trade Secrets and Confidential Information by
the Executive. The Executive therefore agrees that all Trade Secrets and
Confidential Information relating to MS Acquisition, Aetna and their respective
direct or indirect subsidiaries heretofore or in the future obtained by the
Executive shall be considered confidential and the proprietary information of MS
Acquisition, Aetna and their respective direct or indirect subsidiaries. During
the Employment Period the Executive shall not use or disclose, or authorize any
other person or entity to use or disclose, any Trade Secrets or other
Confidential Information, other than as necessary to further the business
objectives of the Companies in accordance with the terms of his employment
hereunder. The term "Trade Secrets or other Confidential Information" includes,
by way of example and without limitation, matters of a technical nature, such as
scientific, trade and engineering secrets, "know-how", formulas, secret
processes, drawings, works of authorship, machines, inventions, computer
programs (including documentation of such programs), services, materials, patent
applications, new product plans, other plans, technical information, technical
improvements, manufacturing techniques, specifications, manufacturing and test
data, progress reports and research projects, and matters of a business nature,
such as business plans, prospects, financial information, proprietary
information about costs, profits, markets, sales, lists of customers and
suppliers of MS Acquisition, Aetna and their respective direct or indirect
subsidiaries, procurement and promotional information, credit and financial data
concerning customers or suppliers of MS Acquisition, Aetna and their respective
direct or indirect subsidiaries, information relating to the management,
operation and planning of MS Acquisition, Aetna and their respective direct and
indirect subsidiaries, and other information of a similar nature to the extent
not available to the public, and plans for future development. After
termination of the Executive's employment with the Companies for any reason, the
Executive shall not use or disclose Trade Secrets or other Confidential
Information.
6. Return of Documents and Property. Upon the termination of the
Executive's employment with the Companies, or at any time upon the request of
the Companies, the Executive (or his heirs or personal representatives) shall
deliver to the Companies (a) all documents and materials (including, without
limitation, computer files) containing Trade Secrets or other Confidential
Information relating to the business and affairs of MS Acquisition, Aetna and
their respective direct and indirect subsidiaries, and (b) all documents,
materials and other property (including, without limitation, computer files)
belonging to MS Acquisition, Aetna or their respective direct or indirect
subsidiaries, which in either case are in the possession or under the control of
the Executive (or his heirs or personal representatives).
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7. Discoveries and Work. All Discoveries and Works made or conceived by
the Executive during his employment by the Companies, whether during the
Employment Period or at any time prior thereto, jointly or with others, that
relate to the present or anticipated activities of MS Acquisition, Aetna or
their respective direct or indirect subsidiaries, or are used or usable by MS
Acquisition, Aetna or their respective direct or indirect subsidiaries shall be
owned by MS Acquisition, Aetna or their respective direct or indirect
subsidiaries. The term "Discoveries and Works" includes, by way of example but
without limitation, Trade Secrets and other Confidential Information, patents
and patent applications, trademarks and trademark registrations and
applications, service marks and service xxxx registrations and applications,
trade names, copyrights and copyright registrations and applications. The
Executive shall (a) promptly notify, make full disclosure to, and execute and
deliver any documents requested by, the Companies, as the case may be, to
evidence or better assure title to Discoveries and Works in MS Acquisition,
Aetna or their respective direct or indirect subsidiaries, as so requested, (b)
renounce any and all claims, including but not limited to claims of ownership
and royalty, with respect to all Discoveries and Works and all other property
owned or licensed by MS Acquisition, Aetna or their respective direct or
indirect subsidiaries, (c) assist MS Acquisition, Aetna or their respective
direct or indirect subsidiaries in obtaining or maintaining for itself at its
own expense United States and foreign patents, copyrights, trade secret
protection or other protection of any and all Discoveries and Works, and (d)
promptly execute, whether during his employment with the Companies or
thereafter, all applications or other endorsements necessary or appropriate to
maintain patents and other rights for MS Acquisition, Aetna or their respective
direct or indirect subsidiaries and to protect the title of MS Acquisition,
Aetna or their respective direct or indirect subsidiaries thereto, including but
not limited to assignments of such patents and other rights. Any Discoveries
and Works which, within six months after the termination of the Executive's
employment with the Companies, are made, disclosed, reduced to a tangible or
written form or description, or are reduced to practice by the Executive and
which pertain to the business carried on or products or services being sold or
developed by MS Acquisition, Aetna or their respective direct or indirect
subsidiaries at the time of such termination shall, as between the Executive
and, the Companies, be presumed to have been made during the Executive's
employment by the Companies. The Executive acknowledges that all Discoveries
and Works shall be deemed "works made for hire" under the Copyright Act of 1976,
as amended, 17 U.S.C. Section 101.
8. Termination.
(a) The Companies or the Executive may terminate this Agreement,
with or without cause, with or without prior notice. Except as provided in
Sections 8(b) and 19, in the event either of the Companies or the Executive
terminates this Agreement, the Executive's rights and the obligations of the
Companies hereunder shall cease as of the effective date of the termination,
including, without limitation, the right to receive the Base Salary, any Bonus
Award and all other compensation or benefits provided for in this Agreement.
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(b) In the event the Companies terminate this Agreement without
"cause" or in the event that the Executive terminates this Agreement upon notice
for "Good Reason", the Executive shall be entitled to receive within 30 days of
the date of such termination a termination payment (the "Termination Payout") in
an aggregate amount equal to (i) the pro rata portion of his Base Salary that
would otherwise be payable during the balance of the then existing Employment
Period (the "Continuation Period"), provided, however, that if such termination
occurs during the Initial Term or on account of the Companies' action pursuant
to Section 3 which prevents the automatic renewal of the Agreement upon (and
only upon) expiration of the Initial Term, then the length of the Continuation
Period with respect to which the Executive shall be entitled to receive a
Termination Payout calculated on the basis of his Base Salary in accordance with
this clause (i) shall be no less than twelve months from the date of
termination; plus (ii) the greater of (x) the amount of bonus paid to the
Executive by the Companies for the fiscal year of the Companies ended
immediately preceding the year in which the Executive's employment with the
Companies is so terminated, or (y) an amount equal to 50% of the Executive's
Base Salary for the fiscal year in which such termination occurs. During the
Continuation Period, the Executive shall be entitled to continue to participate
in the benefit plans of the Companies in which he is entitled to and does
participate pursuant to Section 4(c) hereof as of the date of such termination,
and to continue to receive for such period the benefits identified on Exhibit A
hereto under "Continuing Individual Benefits".
For purposes of this Agreement, "cause" shall mean (i) the willful failure
of the Executive to follow the directions of the Boards of Directors of the
Companies (other than any such failure resulting from his incapacity due to
physical or mental illness or disability which is subject to the provisions of
Section 9), (ii) any act of fraud or dishonesty, misappropriation or
embezzlement, wilful misconduct or gross negligence in connection with the
performance of the Executive's duties hereunder, (iii) a breach by the Executive
of any provision hereof or of any contractual or legal duty to the Companies
(including, but not limited to, the unauthorized disclosure of Trade Secrets or
other Confidential Information, non-compliance with the written policies,
guidelines and procedures of the Companies), after written notice thereof from
the Board of Directors of either of the Companies and a 30-day opportunity to
cure in the event that such breach was not wilful, (iv) the conviction of the
Executive of the commission of a crime or offense involving moral turpitude
(including pleading guilty or no contest to such a crime or offense or a lesser
charge which results from plea bargaining), whether or not committed in
connection with the business of the Companies, (v) alcohol or substance abuse or
(vi) breach by the Executive of the provisions of the Stockholders Agreement.
For purposes of this Agreement, "Good Reason" shall mean (i) the Companies
change the Executive's status, title or position as an officer of the Companies
and such change represents a material reduction in such status, title or
position conferred hereunder, and/or (ii) the Companies materially breached this
Agreement, and such change or breach is not cured by the Companies within thirty
(30) days from the date the Executive delivers a Notice of Termination for Good
Reason. Such "Notice of Termination for Good Reason" shall include the specific
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section of this Agreement which was relied upon and the reason that the
Companies act or failure to act has given rise to his termination for Good
Reason.
(c) In the event the Companies terminate this Agreement for cause
or the Executive terminates this Agreement (other than for Good Reason), the
Executive's rights hereunder shall cease as of the effective date of the
termination, including, without limitation, the right to receive the Base
Salary, any Bonus Award and all other compensation or benefits provided for in
this Agreement.
(d) Notwithstanding anything to the contrary set forth herein, upon
24 hours' written notice to the Executive, the Companies may relieve the
Executive of all his duties and responsibilities hereunder and may relieve the
Executive of authority to act on behalf of, or legally bind, the Companies,
provided that any such action by the Companies shall be without prejudice to the
Executive's right to the compensation and benefits provided under this Agreement
or the Executive's right to terminate his employment and receive the
compensation and benefits following his termination of employment as otherwise
provided under this Agreement.
(e) As a condition to his entitlement, if any, to Base Salary and
all other compensation and benefits provided for hereunder upon termination, the
Executive shall have executed and delivered to the Companies a release in the
form attached hereto as Exhibit B (the "Release"), as such Release may be
modified by the Companies from time to time in good faith, and such Release
shall have become irrevocable.
9. Disability; Death.
(a) If, prior to the expiration of the Employment Period or the
termination of this Agreement, the Executive shall be unable to perform his
duties by reason of mental or physical disability for at least one hundred and
eighty (180) consecutive days or any one hundred and eighty (180) days (whether
or not consecutive) in any two hundred and fifty (250) consecutive day period,
the Companies shall have the right to terminate this Agreement and the remainder
of the Employment Period by giving written notice to the Executive to that
effect. Immediately upon the giving of such notice, the Employment Period shall
terminate.
(b) Upon termination of this Agreement pursuant to Section 9(a), the
Executive shall be entitled to a termination payment equal to the amount the
Executive would have received had his employment been terminated pursuant to
Section 8(b) hereof. In the event of a dispute as to whether the Executive is
disabled within the meaning of Section 9(a), any party may from time to time
request a medical examination of the Executive by a doctor appointed by the
Chief of Staff of a hospital selected by mutual agreement of the parties, or as
the parties may otherwise agree, and the written medical opinion of such doctor
shall be conclusive and binding upon the parties as to whether the Executive has
become disabled and the date when such disability arose. The cost of any such
medical examination shall be borne by the Companies. If,
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prior to the expiration of the Employment Period or the termination of this
Agreement, the Executive shall die, the Executive's estate shall be paid his
Base Salary through the end of the month in which the Executive's death has
occurred, at which time the Employment Period shall terminate without further
notice and the Companies shall have no further obligations hereunder.
10. No Conflicts. The Executive represents to the Companies that the
execution, delivery and performance by the Executive of this Agreement do not
conflict with or result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default under any contract, agreement
or understanding, whether oral or written, to which the Executive is a party or
of which the Executive is or should be aware.
11. Mitigation; Offset.
(a) Upon termination by the Companies without cause or voluntarily by
the Executive for Good Reason pursuant to Section 8(b) hereof, the Executive
shall have an obligation to the Companies to mitigate damages by actively
seeking other employment of comparable position and salary in compliance with
Section 12. The Companies may, at their option, engage an out placement service
firm to assist the Executive in his attempt to seek other employment until the
earlier of the time the Executive (i) accepts new employment or (ii) is no
longer entitled to payments under this Agreement.
(b) If the Executive accepts other employment (i) all of the
Executive's rights to benefits under Sections 4 and 8(b) shall cease, and (ii)
all compensation payable to the Executive from services as an officer,
consultant or employee of any other business after the termination of the
Executive's employment hereunder with respect to the balance of the Employment
Period, whether paid during or after such period, shall be offset against and
reduce any payments (but not below zero) required to be paid to the Executive
under this Agreement.
12. Non-Competition. From and after the date hereof, the Executive will
not, except pursuant to the terms hereof, directly or indirectly, own, manage,
operate, join, finance control or participate in the ownership, management,
operation or control of, or be employed or be otherwise connected in any manner
with, any business under a name similar to the name of any of the Companies or
any direct or indirect subsidiary thereof. Prior to the termination of the
Executive's employment hereunder and for a period after any such termination or
expiration of this Agreement equal to the greater of (i) twelve (12) months and
(ii) the balance of the then existing Employment Period (as if this Agreement
were not terminated), the Executive will not (except as an officer, director,
employee, agent or consultant of the Companies) directly or indirectly, own,
manage, operate, join, or have a financial interest in, control or participate
in the ownership, management, operation or control of, or be employed as an
employee, agent or consultant, or in any other individual or representative
capacity whatsoever, or use or permit his name to be used in connection with, or
be otherwise connected in any manner with (i) any business or enterprise engaged
(wherever located) in the design, development, manufacture, distribution or sale
of any products, or the provision of any services, which the Companies or
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their direct or indirect subsidiaries were designing, developing, manufacturing,
distributing, selling or providing at any time up to and including the date of
termination of this Agreement or (ii) any business which is similar to or
competitive with the business carried on or planned by the Companies or their
direct or indirect subsidiaries at any time during the period of the Executive's
employment by the Companies, whether during or prior to the Employment Period,
unless the Executive shall have obtained the prior written consent of the Boards
of Directors of the Companies, provided that the foregoing restriction shall not
be construed to prohibit the ownership by the Executive of not more than two
percent (2%) of any class of securities of any corporation which is engaged in
any of the foregoing businesses, having a class of securities registered
pursuant to the Securities Exchange Act of 1934, which securities are publicly
owned and regularly traded on any national exchange or in the over-the-counter
market, provided further, that such ownership represents a passive investment
and that neither the Executive nor any group of persons including the Executive
in any way, either directly or indirectly, manages or exercises control of any
such corporation, guarantees any of its financial obligations, otherwise takes
part in its business other than exercising his rights as a shareholder, or seeks
to do any of the foregoing.
13. Non-Solicitation. Prior to the termination of the Executive's
employment hereunder and for a period after any such termination or expiration
of this Agreement equal to the greater of (i) twelve (12) months and (ii) the
balance of the then existing Employment Period (as if this Agreement were not
terminated), the Executive agrees, directly or indirectly, whether for his own
account or for the account of any other individual or entity, not to solicit or
canvas the trade, business or patronage of, or sell any products or services
which are the same as or similar to those designed, developed, manufactured,
distributed or sold by MS Acquisition, Aetna or their respective direct or
indirect subsidiaries to, any individuals or entities that were either customers
of MS Acquisition, Aetna or any of their respective direct or indirect
subsidiaries during the time the Executive was employed by the Companies,
whether during or prior to the Employment Period, or prospective customers with
respect to whom a sales effort, presentation or proposal was made by MS
Acquisition, Aetna or any of their respective direct or indirect subsidiaries
during the twelve months preceding the date of termination or expiration, as the
case may be. The Executive further agrees that prior to the termination of the
Executive's employment hereunder and for a period of one year thereafter, he
shall not, directly or indirectly, (i) solicit, induce, enter into any agreement
with, or attempt to influence any individual who was an employee or consultant
of MS Acquisition, Aetna or any of their respective direct or indirect
subsidiaries at any time during the time the Executive was employed by the
Companies, whether during or prior to the Employment Period, to terminate his or
her employment relationship with MS Acquisition, Aetna or any of their
respective direct or indirect subsidiaries or to become employed by the
Executive or any individual or entity by which Executive is employed or (ii)
interfere in any other way with the employment, or other relationship, of any
employee or consultant of MS Acquisition, Aetna or any of their respective
direct or indirect subsidiaries.
14. Enforcement. (a) The Executive agrees that the remedies at law for
any breach or threat of breach by him of any of the provisions of Sections 5, 6,
7, 12 and 13 hereof
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will be inadequate, and that, in addition to any other remedy to which the
Companies may be entitled at law or in equity, the Companies shall be entitled
to a temporary or permanent injunction or injunctions or temporary restraining
order or orders to prevent breaches of the provisions of Sections 5, 6, 7, 12
and 13 hereof and to enforce specifically the terms and provisions thereof, in
each case without the need to post any security or bond. Nothing herein
contained shall be construed as prohibiting the Companies from pursuing, in
addition, any other remedies available to the Companies for such breach or
threatened breach. A waiver by the Companies of any breach of any provision
hereof shall not operate or be construed as a waiver of a breach of any other
provision of this Agreement or of any subsequent breach by the Executive.
(b) It is expressly understood and agreed that although the Companies
and the Executive consider the restrictions contained in Sections 5, 6, 7, 12
and 13 hereof to be reasonable for the purpose of preserving the goodwill,
proprietary rights and going concern value of the Companies, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in such Sections 5, 6, 7, 12 and 13 is an
unenforceable restriction on the Executive's activities, the provisions of such
Sections 5, 6, 7, 12 and 13 shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such other extent
as such court may judicially determine or indicate to be reasonable.
Alternatively, if the court referred to above finds that any restriction
contained in Sections 5, 6, 7, 12 or 13 or any remedy provided herein is
unenforceable, and such restriction or remedy cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained therein or the availability of any other remedy.
The provisions of Sections 5, 6, 7, 12 and 13 shall in no respect limit or
otherwise affect the Executive's obligations under other agreements with the
Companies.
15. Assignment. The rights and obligations of the parties under this
Agreement shall not be assignable by either the Companies or the Executive,
provided that this Agreement is assignable by the Companies to any affiliate of
the Companies, to any successor in interest to the business of any of the
Companies, or to a purchaser of all or substantially all of the assets of any of
the Companies.
16. Notices. Any notice required or permitted under this Agreement shall
be deemed to have been effectively made or given if in writing and personally
delivered, mailed properly addressed in a sealed envelope, postage prepaid by
certified or registered mail, delivered by a reputable overnight delivery
service or sent by facsimile. Unless otherwise changed by notice, notice shall
be properly addressed to the Executive if addressed to:
Ueli Spring
0000 Xxxxxxxxxx Xxxxx
Xxx. 0000, Xxxx. 00
Xxxxxx Xxxxx, XX 00000
and properly addressed to the Companies if addressed to:
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Aetna Industries, Inc.
MS Acquisition Corp.
00000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Board of Directors
Fax No. 000-000-0000
with a copy to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax No. 000-000-0000
17. Severability. Wherever there is any conflict between any provision of
this Agreement and any statute, law, regulation or judicial precedent, the
latter shall prevail, but in such event the provisions of this Agreement thus
affected shall be curtailed and limited only to the extent necessary to bring
them within the requirements of the law. In the event that any provision of
this Agreement shall be held by a court of proper jurisdiction to be indefinite,
invalid, void or voidable or otherwise unenforceable, the balance of the
Agreement shall continue in full force and effect unless such construction would
clearly be contrary to the intentions of the parties or would result in an
unconscionable injustice.
18. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
19. Effect of Termination. Notwithstanding anything to the contrary
contained herein, if this Agreement or the Executive's employment is validly
terminated pursuant to Section 8 or Section 9 or expires by its terms, the
provisions of Sections 5, 6, 7, 11, 12, 13, 14, and 17 shall continue in full
force and effect.
20. Disputes. Any claim or controversy arising out of or relating to this
Agreement, or any breach thereof, or otherwise arising out of or relating to the
Executive's employment, compensation and benefits with the Companies or the
termination thereof, shall be settled by arbitration in Detroit, Michigan in
accordance with the rules established by the American Arbitration Association,
provided, however, that the parties agree that (i) the arbitrator shall be
prohibited from disregarding, adding to or modifying the terms of this
Agreement; (ii) the arbitrator shall be required to follow established
principles of substantive law and the law governing burdens of proof; (iii) only
legally protected rights may be enforced in arbitration; (iv)
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the arbitrator shall be without authority to award punitive or exemplary
damages; (v) the arbitrator shall be an attorney licensed to practice law in
Michigan who has experience in similar matters; and (vi) any demand for
arbitration made by the Executive must be filed and served, if at all, within
180 days of the occurrence of the act or omission complained of. Any claim or
controversy not submitted to arbitration in accordance with this Section 21
shall be considered waived and, thereafter, no arbitration panel or tribunal or
court shall have the power to rule or make any award on any such claim or
controversy. The award rendered in any arbitration proceeding held under this
Section 21 shall be final and binding, and judgment upon the award may be
entered in any court having jurisdiction thereof, provided that the judgment
conforms to established principles of law and is supported by substantial record
evidence.
21. Miscellaneous; Choice of Law. This Agreement constitutes the entire
agreement, and supersedes all prior agreements, of the parties hereto relating
to the subject matter hereof, and there are no written or oral terms or
representations made by either party other than those contained herein. This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of New York, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
AETNA INDUSTRIES, INC.
________________________
By:
Its:
MS ACQUISITION CORP.
______________________
By:
Its:
_______________________
Ueli Spring
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EXHIBIT A
Prior Agreements to be Terminated:
Continuing Individual Benefits:
Automobile lease/insurance arrangements.
Life insurance policy.
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EXHIBIT B
Form of Release
I, ______________________, hereby release and discharge ________________
(the "Company"); its present and former subsidiaries and affiliates; the
Company's, any such subsidiaries' and any such affiliates' present and former
partners, officers, directors, stockholders, employees, representatives and
agents; and the successors and assigns of each of the foregoing persons and
entities (collectively, the "Released Persons"), from any and all actions,
causes of action, suits, debts, dues, sums of money, including without
limitation any compensation owed or potentially owed, any accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims, and
demands whatsoever (including, without limitation, under the Age Discrimination
in Employment Act, 29 U.S.C. Section 621 et seq. ("ADEA"), or the Employee
Retirement Income Security Act, 29 U.S.C. Section 1001 et seq.), known or
unknown, fixed, conditional or contingent, in law or in equity, which I and my
respective heirs, executors, administrators, legal representatives, successors
and assigns ever had, now have or hereafter can, shall or may have against the
Released Persons, individually or collectively, derivatively or otherwise, for,
upon or by reason of any matter, cause or thing whatsoever from the beginning
of time to the date hereof.
The Company has advised me to consult with an attorney of my choosing prior
to executing this Release regarding this Release and I hereby represent to the
Company that I have in fact consulted with such an attorney prior to the
execution of this Release with respect hereto. I acknowledge that I shall have
up to twenty-one days prior to the execution of this Release to consider the
waiver of my rights under ADEA pursuant to this Release, provided that once I
have executed this Release, I shall have seven days from the date of execution
to revoke my consent to the release of my rights under ADEA. If no such
revocation occurs, my release of rights under ADEA pursuant to this Release
shall become effective seven days from the date I execute this Release. I
acknowledge that any revocation of consent pursuant to this Release must be in
writing and must be hand-delivered or telecopied to
_____________________________, counsel to the Company, at
________________________________________________, facsimile number ________,
within such seven-day period.
IN WITNESS WHEREOF, the undersigned has executed this Release as of
_______ of ______________.
____________________________
[Name]
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