EXHIBIT 10.8
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into, effective as of the 25th day of May, 2001 (the "Effective
Date"), by and between A. Xxxxxxxxx Xxxxxxx ("Employee") and Triple S
Plastics, Inc., a Michigan corporation (the "Company"), for the
benefit of Eimo Oyj, a company organized under the laws of the
Republic of Finland (the "Parent") (the Employee, the Company, and the
Parent are hereinafter collectively referred to as the "Parties").
WITNESSETH:
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WHEREAS, effective as of July 13, 2000, the Company, the Parent,
and Spartan Acquisition Corporation, a Delaware corporation and a
wholly owned subsidiary of the Parent (the "Merger Sub") entered into
an Agreement and Plan of Merger, as amended by a First Amendment dated
as of February 3, 2001 (such agreement, as amended, is hereinafter
referred to as the "Merger Agreement");
WHEREAS, in March of 2001, the Company, the Merger Sub, and the
Parent terminated the Merger Agreement:
WHEREAS, pursuant to the provisions of an Amended and Restated
Agreement and Plan of Merger of even date herewith (the "Amended Plan
of Merger"), the Company, the Merger Sub, and the Parent are
reinstating the Merger Agreement, amending it in certain respects, and
restating it in its entirety, as amended;
WHEREAS, pursuant to the terms of Section 1.6 of the Merger
Agreement, the Company and the Employee entered into an employment
agreement dated as of July 13, 2000, in the form of Exhibit 1.6(d)(i)
to the Merger Agreement (the "Former Employment Agreement") to be
effective as of the effective time of the Merger (as defined in the
Merger Agreement);
WHEREAS, the Parties want to make clear and certain that the
Former Employment Agreement has been terminated and cancelled in its
entirety and that it will not become effective as of the Effective
Time of the Amended Plan of Merger (as defined in the Amended Plan of
Merger);
WHEREAS, the Employee and the Company have entered into an
existing employment agreement concerning the terms of the Employee's
existing employment by the Company (the "Existing Employment
Agreement"); and
WHEREAS, the Parties want to terminate and cancel the Existing
Employment Agreement, effective as of the Effective Time of the
Amended Plan of Merger, and also desire to set forth in full their
agreement concerning the Employee's employment by the Company from and
after the Effective Time of the Amended Plan of Merger;
NOW, THEREFORE, for and in consideration of the foregoing
recitals, the mutual representations, warranties, covenants, and
agreements contained herein, and other good and valuable consideration
(the receipt, sufficiency, and adequacy of which are hereby
acknowledged), the Parties agree as follows:
1. CONFIRMATION OF EMPLOYMENT. The Employee hereby confirms and
acknowledges as follows: (a) the Employee does not have any written
employment agreement with the Company other than the Existing
Employment Agreement; (b) the Former Employment Agreement in the form
of Exhibit 1.6(d)(i) to the Merger Agreement has been mutually
terminated and cancelled in its entirety, it is null and void, and it
has no continuing force or effect; and (c) the Employee does not have
any rights, damages, claims, or causes of action of any kind or
character against the Company arising in connection with or out of the
Former Employment Agreement.
2. TERMINATION OF EXISTING EMPLOYMENT AGREEMENT. Effective as
of the Effective Time of the Amended Plan of Merger, the Employee and
the Company do hereby mutually terminate and cancel the Existing
Employment Agreement. From and after the Effective Time of the
Amended Plan of Merger, the Existing Employment Agreement will be null
and void, and it will have no continuing effect. This termination and
cancellation of the Existing Employment Agreement is self executing
and automatically will be effective as of the Effective Time of the
Amended Plan of Merger without the Company or the Employee having to
take any other or further steps or actions.
3. RELEASE. Effective as of the Effective Time of the Amended
Plan of Merger, the Employee, for himself and his successors,
administrators, executors, representatives, and assigns, does hereby,
generally and specifically, release and forever discharge the Company,
the Parent, and the Merger Sub from any and all losses, damages,
obligations, liabilities, demands, claims, and causes of action of
every kind and character that may exist as of the Effective Time of
the Amended Plan of Merger, regardless of whether known or unknown and
also regardless of when occurring or acquired, arising out of or
relating to the Former Employment Agreement or the Existing Employment
Agreement.
4. TERM. The term of the Employee's employment by the Company
pursuant to this Agreement will commence as of the Effective Time of
the Amended Plan of Merger and, unless earlier terminated as set forth
herein, will automatically end and terminate on the sixth (6th) month
anniversary of the Effective Time of the Amended Plan of Merger (the
"Term"). In the event the Merger Agreement is terminated for any
reason, this Agreement will simultaneously be terminated and shall
have no force and effect. Either the Company or Employee may
terminate Employee's employment under this Agreement at any time by
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two weeks prior written notice to the other. Employee acknowledges and
agrees that after the Company's receipt of any notice of termination
from the Employee, the Company may, at its sole option, elect an
earlier effective date for the termination of Employee's employment by
giving written notice of such earlier date to Employee at any time
prior to the date of termination initially established by Employee,
provided, however, that any post termination payments or benefits due
shall be measured from the date Employee initially established for
termination. In addition, before the end of the Term, the Employee and
the Company may enter into an extension of this Agreement or otherwise
amend it in accordance with the provisions hereof, or they may enter
into another mutually acceptable employment agreement.
5. EMPLOYMENT AND DUTIES.
(A) Subject to the terms and conditions set forth in this
Agreement, the Company shall employ Employee, and Employee shall serve
the Company, as President and Chief Executive Officer.
(B) At all times during the term hereof, Employee shall, for the
benefit of the Company, use his skills, knowledge and specialized
training to perform the duties and exercise the powers, functions and
discretions incident to his office or which from time to time,
consistent with such position may be assigned to or vested in him by
the board of directors of the Company (the "Board"), in an efficient
and competent manner and on such terms and subject to such
restrictions as the Board may from time to time impose.
(C) At all times during the term hereof, Employee shall during
working hours, devote the whole of his time, attention and ability to
his duties hereunder at the Company's offices in Kalamazoo County,
Michigan (except for reasonable travel in connection with the exercise
of such duties), and Employee shall not be required to relocate to any
other location.
(D) At all times during the term hereof, Employee shall comply
with all reasonable requests, instructions and regulations made by the
Board and give to Company such explanations, information and
assistance as the Board may reasonably require.
(E) At all times during the term hereof, Employee shall
faithfully serve the Company to the best of his ability and use his
best efforts to promote the interests of the Company.
(F) At all times during the term hereof, Employee agrees to be a
full-time employee of the Company and to devote his full and exclusive
time, energy and skill to the business of the Company, and to the
fulfillment of Employee's obligation under this Agreement. In
addition to the foregoing and not in limitation thereof, during the
term hereof, Employee shall not carry on, engage in, or otherwise be
interested in, directly or indirectly, any other business or activity
that is competitive with the activities and business of the Company,
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that is of a nature similar to the Company's business, that would
result in a conflict of interest with the Company's business, or that
would materially affect Employee's ability to perform his duties as
set forth in this Agreement. Moreover, Employee shall not take part
in any activities detrimental to the Company's best interest. Nothing
in this subsection (f) shall preclude Employee from serving as a
director of other corporations in accordance with subsection (g)
below.
(G) Employee may serve as an outside director on a maximum of
three (3) boards of directors; provided, however, that the
directorships are disclosed to the Board and that such service does
not constitute a conflict of interest or otherwise materially affect
Employee's ability to perform his duties under this Agreement. Any
new directorships commencing after the Effective Time must be approved
by the Board of Directors, which approval will not be unreasonably
withheld. In the event the Board determines Employee's service as an
outside director fails to satisfy any of the provisions of this
subsection, it shall notify Employee of the issue and its
determination in writing, and Employee shall thereafter have ninety
(90) days in which to remedy the issue. It is understood that service
on the boards of affiliated or related entities shall constitute
service on only one board of directors for purposes of this provision.
This provision shall in no way limit Employee from serving as a
director or trustee of any non-profit or charitable organization.
6. COMPENSATION AND BENEFITS.
(A) Subject to the terms of this Agreement, as base compensation
for Employee's services, the Company shall pay Employee a base monthly
salary of $16,666.67 ($200,000 annualized). The Employee's base
salary may be increased in the discretion of the Board of Directors,
but in no event shall it be lowered without the permission of the
Employee. The Employee's base salary shall be subject to all federal
and state withholdings (and payroll taxes) pursuant to applicable law
or regulation. Employee's base salary shall be payable to Employee on
the regularly reoccurring pay period established by the Company, but
in no event in less than bi-weekly installments.
(B) In addition to the base salary provided in subsection (a)
above, if during the Term of this Agreement the Employee exercises any
stock options he holds for shares of the capital stock of the Parent,
then the Company shall pay him additional gross compensation (the
"Additional Compensation") in an amount equal to twenty percent (20%)
of any taxable gain he realizes on such exercise. Employee
acknowledges any payment pursuant to this paragraph shall be subject
to all federal and state withholdings (and payroll taxes) pursuant to
applicable law or regulation. Accordingly, the Additional
Compensation shall be net of such withholdings. Such Additional
Compensation shall be paid by the Company to the Executive within
thirty (30) days after each exercise of all or a part of those options
held by the Executive.
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(C) Employee hereby acknowledges that Employee may be required
to work beyond standard working hours in order to perform his duties
hereunder. Employee shall not be entitled to compensation for
overtime or extra hours worked in performance of his duties hereunder
except as required by law.
(D) In addition to the compensation described in this Agreement,
Employee shall be entitled to reimbursement by the Company for all
actual, reasonable and direct expenses incurred by him in the
performance of his duties hereunder, provided such expenses are
properly characterized as being business expenses, and further
provided that such expenses were incurred only in accordance with the
policies and procedures established by the Company from time to time.
Employee shall provide the Company with written documentation of such
expenses in form complying with the records required of the Company by
the Internal Revenue Service and appropriate state authorities for tax
deductibility purposes in such cases, and reimbursement for each item
of approved expense shall be made within a reasonable time after
receipt by Company of the written documentation thereof.
(E) Employee shall have the right to participate in any and all
employee benefit programs established or maintained by the Company
from time to time, in accordance with the terms and conditions of such
employee benefit programs, including, without limitation, such medical
or dental plans as may be established from time to time by the
Company. To the extent Employee participates in such programs,
Employee shall be subject to the terms and conditions set forth
therein. In no event shall the level of benefits be decreased, except
when such benefits are decreased for all executive officers of the
Company on the same basis. Benefits shall include the following:
(I) Participation in the Company's health, hospitalization,
medical and dental insurance programs for Employee, his spouse, and
legal dependents, subject to and in accordance with applicable laws.
(II) Participation in any Company retirement and/or pension
program in which any of the Company's executive officers participate.
(III) Long term and short term disability insurance at
levels applicable to the Company's executive officers, fully paid by
the Company.
(IV) Three (3) weeks paid vacation during the Term hereof
(six (6) weeks annualized), plus such paid time off and holidays as
are provided to all executive and management personnel.
(V) All membership dues, initiation fees, and other dues
and fees in connection with Employee's membership in the Kalamazoo
Country Club and the Beacon Club. In addition, the Company shall
reimburse Employee for all reasonable entertainment expenses and costs
Employee incurs for the benefit of the Company in connection with such
memberships, in accordance with the Company's policies and practices.
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(VI) Life insurance in the amount of two million dollars
($2,000,000); the beneficiary of such insurance shall be designated by
Employee.
(VII) Participation in the Company's Share the Success Plan
and in any other bonus program made available by the Company to its
executives.
(VIII) The Company will establish a nonqualified
Salary-Reduction Deferred Compensation Plan that will allow the
Employee to annually determine and direct a portion of his base salary
for deposit into the Plan Trust. In addition, the Company shall
contribute to such Plan trust monthly an amount equal to the
difference between $2,083.33 ($25,000 annualized) and the amount of
the Company's matching contribution to the Employee's account under
the Company's 401(k) Deferred Compensation Plan. The Plan shall be on
terms and conditions that are reasonably acceptable to the Employee,
including without limitation, (a) the creation of an irrevocable
"Rabbi" trust by the Company, subject to the claims of general
creditors of the Company; (b) all sums in the Plan shall become
immediately due and payable to the Employee if the Company terminates
his employment Without Cause (as hereinafter defined), if he
terminates his employment with the Company With Good Reason (as
hereinafter defined), or if there is a sale of substantially all of
the Company's assets, a sale of a controlling interest in the
Company's capital stock, or a merger, consolidation, reorganization,
or dissolution of the Company. .
(IX) All membership and professional dues in the AICPA,
MACPA, and one airline club.
(X) An automobile allowance of one thousand dollars
($1,000) per month.
7. TERMINATION.
(A) If by reason of illness, injury or incapacity, Employee is
unable, despite reasonable accommodation, to perform his services or
discharge his duties hereunder for a continuous period of six (6)
months (excluding vacation, paid time off and holiday time), or for 6
months in any 12 month period, then upon thirty (30) days' prior
notice, the Company may terminate the employment of Employee, and
thereupon, Employee shall be paid his base salary and prorated bonus
through the 30-day notice period.
(B) In the event of Employee's death, all obligations of the
Company under this Agreement shall terminate other than Employee's
rights with respect to the payment of that portion of the base salary
and prorated bonus earned by Employee to the date of death, plus
reimbursement of all pre-approved expenses that were reasonably
incurred by Employee in performing his responsibilities and duties for
the Company prior to and including such date.
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(C) If the Company terminates Employee's employment hereunder
With Cause (as hereinafter defined) or Employee resigns Without Good
Reason (as hereinafter defined), all obligations of the Company to
provide compensation and benefits under this Agreement shall cease,
and Employee shall have no claim against the Company for damages or
otherwise by reason of such termination. The Company's election to
terminate Employee's employment With Cause shall be without prejudice
to any remedy the Company may have against Employee for the breach or
non-performance of any of the provisions of this Agreement. The
Company agrees that Employee's election to terminate his employment
hereunder for any reason shall not constitute a sufficient basis upon
which the Company can terminate Employee's employment With Cause.
(D) If the Company terminates Employee's employment hereunder
Without Cause (as hereinafter defined) or Employee terminates
employment With Good Reason (as hereinafter defined), then Employee
shall be entitled to continue to receive the following compensation
and benefits for the balance of the term of this Agreement, beginning
on the date of such termination:
(I) Employee's base salary, payable on the same basis as
his salary was paid prior to such termination of employment, plus his
Additional Compensation payable as provided in Section 6 (b) hereof.
(II) Continued participation in the Company's benefit plans
and programs described in Section 7(e) herein (other than those
described in Sections 7(e)(iv),(v),(vi), and (vii), to the extent
permitted by law.
(III) Payment of the accrued but unused vacation time of
Employee as of the date of his termination of employment.
In the event of a termination of employment pursuant to this Section
8(c), Employee, and his covered spouse and dependents, will have the
right to continue group health coverage under Sections 601-609 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")
("COBRA"), and for purposes of this Agreement, the date of Employee's
qualifying event, as defined in Section 603 of ERISA, shall be the
last day of the twelve- month period following Employee's termination
of employment.
(E) "With Cause" means the termination of employment resulting
from any of the following:
(I) any act or omission which constitutes a material breach
by Employee of his obligations under this Agreement and which remains
unremedied after thirty (30) days written notice from the Company to
Employee of such breach;
(II) the commission by Employee of a felony or any crime
involving fraud or dishonesty, breach or violation of any applicable
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U.S. federal or state or Finnish "xxxxxxx xxxxxxx" or related rules,
regulations or laws, or insider securities laws;
(III) the illegal use of controlled substances by the
Employee, which materially interferes with the performance of his
duties hereunder;
(IV) the persistent failure or refusal of Employee to
implement reasonable directives of the Board, which directives are
consistent with the scope of Employee's duties hereunder;
(V) the issuance of a final consent decree, cease and
desist or similar order against Employee by a regulatory agency
relating to material violations or alleged material violations of any
Finnish, federal or state law or regulation governing the conduct of
the business of the Company; or
(VI) a deliberate act or omission of a material nature by
Employee (other than an act or omission resulting from the exercise by
Employee of good faith business judgment) which materially impairs the
financial condition or business reputation of the Company.
(F) "Without Cause" means the termination of Employee's
employment by the Company for any reason other than those enumerated
in subsections 8(a) or (d) above of this Agreement.
(G) "With Good Reason" means Employee's termination of his
employment with the Company as a result of:
(I) A material diminution in Employee's duties
inconsistent with Employee's position as specified on the signature
page hereof (or such other position to which he may be promoted).
(II) A reduction in the salary or employee benefits
described in Section 7 herein.
(III) Any other material breach of this Agreement by the
Company, including the failure to pay Employee on a timely basis the
amounts to which he is entitled under this Agreement, which breach is
not cured within ten (10) business days after receipt by the Company
of notice thereof.
(H) "Without Good Reason" means the Employee's termination of
his employment with the Company pursuant for any reason other than
those enumerated in subsections 8 (a) or (f) above.
(I) Upon the termination of his employment hereunder for
whatever reason Employee shall:
(I) Forthwith tender his resignation from any directorship
or office he may hold in the Company, Parent or their respective
subsidiaries or affiliates.
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(II) Not at any time represent himself still to be connected
or to have any connection with the Company, Parent or their respective
subsidiaries or affiliates.
(J) The provisions of this Agreement shall survive the
termination of this Agreement and the termination of Employee's
employment with the Company to the extent required to give full effect
to the covenants and agreements contained herein.
8. CONFIDENTIALITY.
(A) Employee agrees that, both during the term of his employment
and after the termination of his employment for any reason, Employee
will hold in a fiduciary capacity for the benefit of the Company, and
shall not directly or indirectly use or disclose, except as authorized
by the Company in connection with the performance of Employee's
duties, any Confidential Information, as defined hereinafter, that
Employee may have or acquire (whether or not developed or compiled by
Employee and whether or not Employee has been authorized to have
access to such Confidential Information) during the term of this
Agreement. The term "Confidential Information" as used in this
Agreement shall mean and include any information, data and know-how
relating to the business of the Company that is disclosed to Employee
by the Company or known by him as a result of his relationship with
the Company and not generally within the public domain (whether or not
constituting a trade secret), including without limitation, the
following information:
(I) financial information, such as the Company's earnings,
assets, debts, prices, fee structure, volumes of purchases or sales or
other financial data, whether relating to the Company generally, or to
particular products, services, geographic areas, or time periods;
(II) supply and service information, such as information
concerning the goods and services utilized or purchased by the
Company, the names or addresses of suppliers, terms of supply or
service contracts, or of particular transactions, or related
information about potential suppliers, to the extent that such
information is not generally known to the public, and to the extent
that the combination of suppliers or use of a particular supplier,
though generally known or available, yields advantages to the Company
the details of which are not generally known;
(III) marketing information, such as details about ongoing
or proposed marketing programs or agreements by or on behalf of the
Company, marketing forecasts or results of marketing efforts or
information about impending transactions;
(IV) personnel information, such as employees' personal or
medical histories, compensation or other terms of employment, actual
or proposed promotions, hiring, resignations, disciplinary actions,
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terminations or reasons therefor, training methods, performance, or
other employee information;
(V) customer information, such as any compilation of past,
existing or prospective customers, customer proposals or agreements
between customers and the Company, status of customer accounts or
credit, or related information about actual or prospective customers;
and
(VI) information with respect to any corporate affairs that
the Company agreed to treat as confidential.
The term "Confidential Information" does not include information that
has become generally available to the public by the act of one who has
the right to disclose such information without violating any right of
the Company or the client to which such information pertains.
(B) The covenant contained in this Section 8 shall survive the
termination of Employee's employment with the Company for any reason
for a period of two (2) years; provided, however, that with respect to
those items of Confidential Information which constitute trade secrets
under applicable law, Employee's obligations of confidentiality and
non-disclosure as set forth in this Section 8 shall continue to
survive after said two (2) year period to the greatest extent
permitted by applicable law. These rights of the Company are in
addition to those rights the Company has under the common law or
applicable statutes for the protection of trade secrets.
9. NON-COMPETITION.
Employee expressly covenants and agrees that during the term of
his employment hereunder he will not, directly or indirectly, seek,
obtain or accept a "Competitive Position" with a "Competitor" of the
Company (as such terms are hereafter defined). For purposes of this
Agreement, a "Competitor" of the Company means any business,
individual, partnership, joint venture, association, firm, corporation
or other entity engaged, wholly or partly, in the manufacture and sale
of products that are the same as, or similar to, or competitive with,
the products provided by the Company; a "Competitive Position" means
any employment with any Competitor of the Company whereby Employee
will use or is likely to use any Confidential Information (as that
term is defined in Section 8), or whereby Employee has duties for such
Competitor that are the same as or substantially similar to those
actually performed by his pursuant to the terms hereof. Nothing
contained in this Section 10 is intended to prevent Employee from
investing in stock or other securities listed on a national securities
exchange or actively traded on the over the counter market of any
corporation that is a Competitor; provided, however, that Employee and
members of his immediate family shall not, directly or indirectly,
hold more than a total of five percent (5%) of all issued and
outstanding stock or other securities of any such corporation during
the term of his employment.
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10. NON-SOLICITATION OF EMPLOYEES.
Employee agrees that he will, for so long as he is employed
hereunder and for a period of two (2) years after termination of his
employment, refrain from recruiting or hiring, or attempting to
recruit or hire, directly or by assisting others, any other employee
of the Company who is employed by the Company or any successor or
affiliate of the Company.
11. TOLLING OF PERIOD OF RESTRAINT.
Employee hereby expressly agrees that any violation of the
restraints set forth in Section 11 shall automatically toll and
suspend the period of the restraint for the amount of time that the
violation continues; PROVIDED, however, that in no event shall the
duration of such tolling and suspension exceed two (2) years in the
aggregate and further provided that such tolling and suspension shall
be conditioned upon the Company taking appropriate action under this
Agreement to enjoin or otherwise prevent a breach of this Agreement
within a reasonable period of time after the Company discovers such
breach.
12. ACKNOWLEDGMENTS.
Employee hereby acknowledges and agrees that the restrictions
contained in Sections 8 through 11 are fair and reasonable and
necessary for the protection of the legitimate business interests of
the Company. Employee acknowledges that in the event Employee's
employment with the Company terminates for any reason, Employee will
be able to earn a livelihood without violating the restrictions
contained in Sections 8 through 11 and that Employee's ability to earn
a livelihood without violating such restrictions is a material
condition to Employee's employment and continued employment with the
Company.
Employee hereby further acknowledges and agrees that each
reference to the "Company" contained in Sections 8 through 11, this
Section 12, and Sections 13 through 15, shall be deemed to include
Parent and any affiliate of Parent.
13. RIGHTS TO MATERIALS.
All records, files, memoranda, reports, price lists, customer
lists, drawings, plans, sketches, documents and the like (together
with all copies thereof) relating to the business of the Company,
which Employee uses or prepares or comes in contact with in the course
of, or as a result of, his employment shall, as between the parties
hereto, remain the sole property of the Company. Upon the termination
of his employment or upon the prior demand of the Company, he shall
immediately return all such materials and shall not thereafter cause
removal thereof from the premises of the Company.
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14. WORKS MADE FOR HIRE.
The Company and Employee acknowledge that in the course of
Employee's employment by the Company, Employee may from time to time
create for the Company copyrightable works. Such works may consist of
manuals, pamphlets, instructional materials, computer programs, films,
tapes or other copyrightable material, or portions thereof, and may be
created within or without the Company's facilities and before, during
or after normal business hours. All such works related to or useful
in the business of the Company are specifically intended to be works
made for hire and shall be the property of the Company, and Employee
shall cooperate with the Company in the protection of the Company's
copyrights therein and, to the extent deemed desirable by the Company,
the registration of such copyrights.
15. DISCOVERIES.
Employee agrees that any inventions, discoveries or improvements
that Employee may develop or conceive during the course of Employee's
employment shall be the sole property of the Company. Employee agrees
to promptly disclose to the Company in writing all such inventions,
discoveries and improvements, whether directly or indirectly related
to the business of the Company or whether made solely by the Employee
or in conjunction with others. At the Company's request and expense,
both during and after Employee's employment, Employee will promptly
execute a specific assignment of title to the Company (or any
specified member thereof) of each invention, discovery or improvement
described in the preceding paragraph, and perform all other acts
reasonably necessary to enable the Company to secure a patent therefor
in the United States and in foreign countries and to maintain, defend
and assert such patents. This obligation shall survive the
termination or expiration of this Agreement.
16. SEVERABILITY.
Except as noted below, should any provision of this Agreement be
declared or determined by any court of competent jurisdiction to be
unenforceable or invalid for any reason, the validity of the remaining
parts, terms or provisions of this Agreement shall not be affected
thereby and the invalid or unenforceable part, term or provision shall
be deemed not to be a part of this Agreement. The covenants set forth
in this Agreement are to be reformed pursuant to Section 18 if held to
be unreasonable or enforceable, in whole or in part, and, as written
and as reformed, shall be deemed to be part of this Agreement.
17. REFORMATION.
If any of the covenants or promises of this Agreement are
determined by any court of law or equity, with jurisdiction over this
matter, to be unreasonable or unenforceable, in whole or in part, as
written, Employee hereby consents to and affirmatively requests that
said court reform the covenant or promise so as to be reasonable and
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enforceable and that said court enforce the covenant or promise as so
reformed.
18. INJUNCTIVE RELIEF.
Employee understands, acknowledges and agrees that in the event
of a breach or threatened breach of any of the covenants and promises
contained in Sections 8 - 10 and 13 - 15, the Company will suffer
irreparable injury for which there is no adequate remedy at law and
the Company will therefore be entitled to injunctive relief enjoining
said breach or threatened breach. Employee further acknowledges,
however, that the Company shall have the right to seek a remedy at law
as well as or in lieu of equitable relief in the event of any such
breach.
19. NO SET-OFF OR MITIGATION.
The payments or benefits payable to or with respect to Employee
or his beneficiary pursuant to this Agreement shall not be reduced by
the amount of any claim of the Company against Employee or any debt or
obligation of Employee owing to the Company. No payments or benefits
payable to or with respect to Employee pursuant to this Agreement
shall be reduced by any amount Employee may earn or receive from
employment with another employer or from any other source.
20. ASSIGNMENT.
The terms and provisions of this Agreement shall inure to the
benefit of and be binding upon the Company and its successors and
assigns, and upon Employee and his heirs and personal representatives.
The term "Company" as used in this Agreement shall be deemed to
include the successors and assigns of the original or any subsequent
entity constituting the Company as well as any and all divisions,
subsidiaries, or affiliates thereof.
21. WAIVER.
The waiver by any party to this Agreement of a breach of any of
the provisions of this Agreement shall not operate or be construed as
a waiver of any subsequent or simultaneous breach.
22. APPLICABLE LAW AND MUTUAL SUBMISSIONS.
This Agreement has been entered into in and shall be governed by
and construed under the laws of the State of Michigan.
23. HEADINGS AND CAPTIONS.
The headings and captions used in this Agreement are for
Uconvenience of reference only, and shall in no way define, limit,
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expand or otherwise affect the meaning or construction of any
provision of this Agreement.
24. NOTICE.
Any notice required or permitted to be given pursuant to this
Agreement shall be deemed sufficiently given when delivered in person
or when deposited in the United States mail, first class postage
prepaid.
25. RIGHT TO ARBITRATION.
Any controversy or claim arising out of or relating to Employee's
employment by the Company, or the termination thereof, or this
Agreement, or the breach thereof (including, without limitation, any
claim that any provision of this Agreement or any obligation of
Employee is illegal or otherwise unenforceable or voidable under law,
ordinance or ruling or that Employee's employment by the Company was
illegally terminated) shall be settled by arbitration at the office of
the American Arbitration Association in Chicago, Illinois, in
accordance with the United States Arbitration Act (9 U.S.C., Section
1 et seq.) and the rules of the American Arbitration Association.
Company and Employee each consents and submits to the personal
jurisdiction and venue of the trial courts of the State of Michigan,
and also to the personal jurisdiction and venue of the United States
District Court for the District of Michigan which includes the City of
Kalamazoo for purposes of enforcing this provision. All awards of the
arbitration shall be binding and non-appealable except as otherwise
provided in the United States Arbitration Act. Judgment upon the
award of the arbitrator may be entered in any court having
jurisdiction thereof. The arbitration shall take place at a time
noticed by the American Arbitration Association regardless of whether
one of the parties fails or refuses to participate. The arbitrator
shall have no authority to award punitive damages, but will otherwise
have the authority to award any remedy or relief that a court of
competent jurisdiction could order or grant, including, without
limitation, specific performance of any obligation created under this
Agreement, the issuance of an injunction or other provisional relief,
or the imposition of sanctions for abuse or frustration of the
arbitration process. The parties shall be entitled to engage in
reasonable discovery, including a request for the production of
relevant documents. Depositions may be ordered by the arbitrator upon
a showing of need. The foregoing provisions shall not preclude the
Company from bringing an action in any court of competent jurisdiction
for injunctive or other provisional relief as the Company may
determine is necessary or appropriate.
26. GENDER.
All pronouns or any variations thereof contained in this
Agreement refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person or persons may require.
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27. ENTIRE AGREEMENT.
This Agreement, together with any exhibits attached hereto,
constitutes the entire agreement between the Company and Employee with
respect to the subject matter of this Agreement and, at the Effective
Time of the Merger, shall supersede any prior agreements or
understandings between the Company and Employee with respect to such
subject matter. No amendment or waiver of this Agreement or any
provision hereof shall be effective unless in writing signed by both
of the parties.
28. COUNTERPARTS; TELECOPIER.
This Agreement may be executed in one or more counterparts, all
of which together shall be considered one and the same agreement.
Transmission by telecopier of an executed counterpart of the Agreement
shall be deemed to constitute due and sufficient delivery of such
counterpart.
[SIGNATURES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
duly executed as of the day and year set forth at the beginning
hereof.
COMPANY:
TRIPLE S PLASTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx, Chairman
(Name and Title) (Please Print)
Attest:
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Xxxxxxx Xxxxxxx
[CORPORATE SEAL]
EMPLOYEE:
/s/ A. Xxxxxxxxx Xxxxxxx
-------------------------------------
A. Xxxxxxxxx Xxxxxxx
EIMO OYJ:
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice Chairman
Signature Page to Employment Agreement of A. Xxxxxxxxx Xxxxxxx
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