EXHIBIT 10.15
[Draft: 7/10/01]
EMPLOYMENT AGREEMENT dated as of August 14,
2000, between XXXXX PLASTICS CORPORATION, a
Delaware corporation (the "Corporation"),
and XXXXXXX X. XXXXXXXX (the "Employee").
The Employee is an employee of the Corporation and as such has
substantial experience that has value to the Corporation. The Corporation
desires to employ the Employee, and the Employee desires to accept such
employment, on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and obligations hereinafter set forth, the parties hereto agree
as follows:
1. EMPLOYMENT; EFFECTIVENESS OF AGREEMENT. Effective as of the
date hereof (such date, the "Commencement Date," for all purposes hereof), the
Corporation shall employ the Employee, and the Employee shall accept employment
by the Corporation, upon the terms and conditions hereinafter set forth.
2. TERMINATION OF PRIOR CONSULTING AGREEMENT. Reference is
made to that certain Consulting and Non-Competition Agreement, dated as of May
9, 2000 between the Employee and the Corporation (the "Consulting Agreement"),
wherein the Employee agreed to provide consulting services to the Corporation
and to abide by certain non-competition covenants. The parties hereby
acknowledge and agree that this Agreement supercedes the Consulting Agreement
and that effective on the Commencement Date, the Consulting Agreement shall be
terminated and the Consulting Agreement shall be of no further force and effect
and neither the Employee nor the Corporation shall have any further rights or
obligations under the Consulting Agreement; provided, however, that pursuant to
Section 7 of the Consulting Agreement, the Corporation shall continue to pay any
remaining amounts due to the Executive pursuant to Section 6(d) therein, payable
in accordance with the terms thereof.
3. TERM. Subject to earlier termination as provided herein,
the employment of the Employee hereunder shall commence on the Commencement Date
and terminate on December 31, 2003. Such period of employment is hereinafter
referred to as the "Employment Period."
4. DUTIES. During the Employment Period, the Employee shall be
employed by the Corporation as Executive Vice President and General Manager -
Closures and shall perform such duties and services consistent with such
position as may reasonably be assigned to the Employee by the officers of the
Corporation or their designees.
5. TIME TO BE DEVOTED TO EMPLOYMENT. Except for vacation,
absences due to temporary illness and absences resulting from causes set forth
in Section 7, the Employee shall devote the Employee's business time, attention
and energies on a full-time basis to the performance of the duties and
responsibilities referred to in Section 4. The Employee shall not during the
Employment Period be engaged in any other business activity which, in the
reasonable judgment of the officers of the Corporation, would conflict with the
ability of the
Employee to perform his or her duties under this Agreement, whether or not such
activity is pursued for gain, profit or other pecuniary advantage.
6. COMPENSATION; BENEFITS; REIMBURSEMENT.
(a) BASE SALARY. During the Employment Period, the Corporation shall
pay to the Employee a minimum annual base salary of $250,000, which shall be
subject to review and, at the option of persons having authority regarding such
matters at the Corporation, subject to increase, beginning February 2002 (such
salary, as the same may be increased from time to time as aforesaid, being
referred to herein as the "Base Salary"). The Base Salary shall be payable in
such installments (but not less frequent than monthly) as is the policy of the
Corporation with respect to employees of the Corporation at substantially the
same level of employment as the Employee.
(b) BONUS. During the Employment Period, the Employee shall be
entitled to participate in all bonus and incentive programs of the Corporation
(the "Programs") generally available from time to time to employees of the
Corporation at substantially the same level of employment as the Employee, such
participation to be in substantially the same manner as the participation
therein by such employees. The foregoing notwithstanding, Executive shall
receive a cash bonus equal to $62,500 for the 2000 fiscal year ending December
31, 2000 and a cash bonus equal to $150,000 for the 2001 fiscal year ending
December 31, 2001, payable at the same time and in the same manner as bonuses
are paid to other employees of the Corporation, provided, however, that payment
of each of the aforementioned cash bonuses is contingent upon Executive's
continued employment with the Corporation, on each of the payment dates.
(c) BENEFITS. During the Employment Period, the Employee shall be
entitled to such benefits (together with the Programs, the "Benefit
Arrangements") as are generally made available from time to time to other
employees of the Corporation at substantially the same level of employment as
the Employee. In addition, the Employee shall be entitled to (i) two weeks of
vacation for the period beginning on the Commencement Date and ending on
December 31, 2000, provided, however, that the Employee shall not be entitled to
carry-over any such unused vacation to the 2001 fiscal year, and (ii) four weeks
of vacation per year, commencing on January 1, 2001.
(d) REIMBURSEMENT OF EXPENSES. During the Employment Period, the
Corporation shall reimburse the Employee, in accordance with the policies and
practices of the Corporation in effect from time to time with respect to other
employees of the Corporation at substantially the same level of employment as
the Employee, for all reasonable and necessary traveling expenses and other
disbursements incurred by him for or on behalf of the Corporation in connection
with the performance of his duties hereunder upon presentation by the Employee
to the Corporation of appropriate documentation therefor.
(e) DEDUCTIONS. The Corporation shall deduct from any payments to be
made by it to the Employee under this Section 6 or Section 9 any amounts
required to be withheld in respect of any Federal, state or local income or
other taxes.
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7. DISABILITY OR DEATH OF THE EMPLOYEE.
(a) If, during the Employment Period, the Employee is incapacitated
or disabled by accident, sickness or otherwise (hereinafter, a "Disability") so
as to render the Employee mentally or physically incapable of performing the
services required to be performed under this Agreement for 90 days in any period
of 360 consecutive days, the Corporation may, at any time thereafter, at its
option, terminate the employment of the Employee under this Agreement
immediately upon giving the Employee notice to that effect, it being understood
that upon such termination the Employee shall be eligible for the disability
benefits provided by the Corporation.
(b) If the Employee dies during the Employment Period, the
Termination Date (as defined below) shall be deemed to be the date of the
Employee's death.
8. TERMINATION.
(a) The Corporation may terminate the employment of the Employee and
all of the Corporation's obligations under this Agreement (except as hereinafter
provided) at any time for "cause" by giving the Employee notice of such
termination, with reasonable specificity of the grounds therefor. For the
purposes of this Section 8, "cause" shall mean (i) willful misconduct with
respect to the business and affairs of the Corporation or any subsidiary or
affiliate thereof, insubordination or willful neglect of duties (other than
neglect due solely to the Employee's illness or other involuntary mental or
physical disability), including the Employee's violation of any material
Corporation policy, (ii) material breach of any of the provisions of this
Agreement or (iii) conviction for a crime involving moral turpitude or fraud. A
termination pursuant to this Section 8(a) shall take effect immediately upon the
giving of the notice contemplated hereby.
(b) The Corporation may terminate the employment of the Employee and
all of the Corporation's obligations under this Agreement (except as hereinafter
provided) at any time during the Employment Period without "cause" by giving the
Employee written notice of such termination, to be effective 30 days following
the giving of such written notice.
(c) The Employee may terminate the employment of the Employee
hereunder at any time during the Employment Period by giving the Corporation at
least 30 days' prior written notice of such termination, such termination to be
effective on the date specified in such notice, whereupon all of the
Corporation's obligations hereunder shall terminate (except as hereinafter
provided). For convenience of reference, the date upon which any termination of
the employment of the Employee pursuant to Section 7 or 8 hereof shall be
effective shall be hereinafter referred to as the "Termination Date."
9. EFFECT OF TERMINATION OF EMPLOYMENT.
(a) Upon the effective date of termination of the Employee's
employment pursuant to Section 7, Section 8(a) or Section 8(c) hereof, neither
the Employee nor the Employee's beneficiaries or estate shall have any further
rights under this Agreement or any claims against the Corporation arising out of
this Agreement, except the right to receive, within 30 days of the Termination
Date:
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(i) the unpaid portion of the Base Salary provided for in
Section 6(a), computed on a pro rata basis to the Termination Date;
(ii) in the event the Employee's termination is pursuant to
Section 7, the applicable bonus provided for in Section 6(b) computed
on a pro-rata basis to the Termination Date, payable at the same time
and in the same manner only as, if and when bonuses are paid to other
employees of the Corporation of comparable seniority;
(iii) reimbursement for any expenses for which the Employee
shall not have theretofore been reimbursed, as provided in Section
6(d);
(iv) the unpaid portion of any amounts earned by the Employee
prior to the Termination Date pursuant to any Benefit Arrangement;
provided, however, unless specifically provided otherwise in this
Section 9, the Employee shall not be entitled to receive any benefits
under a Benefit Arrangement that have accrued during a fiscal year if
the terms of such Benefit Arrangement require that the beneficiary be
employed by the Corporation as of the end of such fiscal year; and
(v) any remaining amounts due to the Employee pursuant to
Section 2 hereof (as provided in Section 6(d) of the Consulting
Agreement) payable in accordance with the terms of the Consulting
Agreement.
(b) Upon the termination of the Employee's employment pursuant to
Section 8(b) or upon the termination of Employee's employment by the Corporation
as a result of the expiration of this Agreement pursuant to Section 3, neither
the Employee nor the Employee's beneficiaries or estate shall have any further
rights under this Agreement or any claims against the Corporation arising out of
this Agreement, except the right to receive:
(i) the unpaid portion of the Base Salary provided for in
Section 6(a), computed on a pro rata basis to the Termination Date plus
continuation of Base Salary, for the period from the Termination Date
until the first anniversary of the Termination Date, payable in such
installments as the Base Salary was paid prior to the Termination Date;
(ii) the applicable bonus provided for in Section 6(b)
computed on a pro-rata basis to the Termination Date, payable at the
same time and in the same manner only as, if and when bonuses are paid
to other employees of the Corporation of comparable seniority; and
(iii) the payments, if any, referred to in Sections 9(a)(iii),
(iv) and (v).
(c) The Employee's obligations under Sections 10, 11 and 12 of this
Agreement, and the Corporation's obligations under this Section 9, shall survive
the termination of this Agreement and the termination of the Employee's
employment hereunder.
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10. DISCLOSURE OF INFORMATION.
(a) From and after the date hereof, the Employee shall not use or
disclose to any person, firm, corporation or other business entity (other than
any officer, director, employee, affiliate or representative of the
Corporation), except as required in connection with the performance of the
Employee's duties under and in compliance with the terms of this Agreement and
as required by law or judicial process, any Confidential Information (as
hereinafter defined) for any reason or purpose whatsoever, nor shall the
Employee make use of any of the Confidential Information for the Employee's
purposes or for the benefit of any person or entity except the Corporation or
any subsidiary thereof.
(b) For purposes of this Agreement, "Confidential Information" shall
mean (i) the Intellectual Property Rights (as hereinafter defined) of the
Corporation and its subsidiaries and (ii) all other information of a proprietary
nature relating to the Corporation or any subsidiary thereof, or the business or
assets of the Corporation or any such subsidiary, including, without limitation,
books, records, customer and registered user lists, vendor lists, supplier
lists, distribution channels, pricing information, cost information, marketing
plans, strategies, forecasts, financial statements, budgets and projections,
other than information which is generally within the public domain at the time
of the receipt thereof by the Employee or at the time of use or disclosure of
such Confidential Information by the Employee other than as a result of the
breach by the Employee of the Employee's agreement hereunder.
(c) As used herein, the term "Intellectual Property Rights" means
all industrial and intellectual property rights, including, without limitation,
patents, patent applications, patent rights, trademarks, trademark applications,
trade names, service marks, service xxxx applications, copyrights, copyright
applications, know-how, certificates of public convenience and necessity,
franchises, licenses, trade secrets, proprietary processes and formulae,
inventions, development tools, marketing materials, trade dress, logos and
designs and all documentation and media constituting, describing or relating to
the above, including, without limitation, manuals, memoranda and records.
11. RESTRICTIVE COVENANTS.
(a) The Employee acknowledges and recognizes that during the
Employment Period he will be privy to Confidential Information and further
acknowledges and recognizes that the Corporation would find it extremely
difficult to replace the Employee. Accordingly, in consideration of the premises
contained herein and the consideration to be received by the Employee hereunder
(including, without limitation, the severance compensation described in Section
9(b)(i), if any), without the prior written consent of the Corporation, the
Employee shall not, at any time during the employer/employee relationship
between the Corporation and the Employee and until the later to occur of May 9,
2002 or the first anniversary of the termination of such employer/employee
relationship, (i) directly or indirectly engage in, represent in any way, or be
connected with, any Competing Business directly competing with the business of
the Corporation or any direct or indirect subsidiary or affiliate thereof within
the state in which the Employee is employed or any other state of the United
States, whether such engagement shall be as an officer, director, owner,
employee, partner, affiliate or other participant in any Competing Business (as
hereinafter defined), (ii) assist others in engaging in
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any Competing Business in the manner described in clause (i) above, (iii) induce
other employees of the Corporation or any direct or indirect subsidiary or
affiliate thereof to terminate their employment with the Corporation or any such
direct or indirect subsidiary or affiliate or to engage in any Competing
Business or (iv) induce any entity or person with which the Corporation or any
direct or indirect subsidiary or any affiliate thereof has a business
relationship to terminate or alter such business relationship. As used herein,
"Competing Business" shall mean any business involving the sale of products in
any city or county in any state of the United States, or in any country or
province outside the United States if such business or the products sold by it
are competitive, directly or indirectly, at the time of the Termination of
Employment with (A) the business of the Corporation or any direct or indirect
subsidiary thereof, (B) any of the products manufactured, sold or distributed by
the Corporation or any direct or indirect subsidiary thereof or (C) any products
or business being developed or conducted by the Corporation or any direct or
indirect subsidiary thereof.
(b) The Employee understands that the foregoing restrictions may
limit his ability to earn a livelihood in a business similar to the business of
the Corporation or any subsidiary or affiliate thereof, but he nevertheless
believes that he has received and will receive sufficient consideration and
other benefits as an employee of the Corporation and as otherwise provided
hereunder to justify clearly such restrictions which, in any event (given his
education, skills and ability), the Employee does not believe would prevent him
from earning a living.
12. RIGHT TO INVENTIONS. The Employee shall promptly disclose, grant
and assign to the Corporation for its sole use and benefit any and all
inventions, improvements, technical information and suggestions reasonably
relating to the business of the Corporation or any subsidiary or affiliate
thereof (collectively, the "Inventions") which the Employee may develop or
acquire during the period of the employer/employee relationship between the
Corporation and the Employee (whether or not during usual working hours),
together with all patent applications, letters patent, copyrights and reissues
thereof that may at any time be granted for or upon the Inventions. In
connection therewith:
(a) the Employee recognizes and agrees that the Inventions
shall be the sole property of the Corporation, and the Corporation
shall be the sole owner of all patent applications, letters patent,
copyrights and reissues thereof that may at any time be granted for or
on the Inventions;
(b) the Employee hereby assigns to the Corporation any rights
the Employee may have in or acquire to the Inventions;
(c) the Employee shall, at the expense of the Corporation,
promptly execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or proper in the
opinion of the Corporation to vest title to the Inventions and any
patent applications, patents, copyrights, reissues or other proprietary
rights related thereto in the Corporation and to enable it to obtain
and maintain the entire right and title thereto throughout the world;
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(d) the Employee recognizes and agrees that the Inventions to
the extent copyrightable shall constitute works for hire under the
copyright laws of the United States; and
(e) the Employee shall render to the Corporation, at its
expense, all such assistance as it may require in the prosecution of
applications for said patents, copyrights, reissues or other
proprietary rights, in the prosecution or defense of interferences
which may be declared involving any said applications, patents,
copyrights or other proprietary rights and in any litigation in which
the Corporation may be involved relating to the Inventions.
13. MISCELLANEOUS PROVISIONS.
(a) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
agreements referred to herein contain the entire agreement between the parties
hereto with respect to the transactions contemplated hereby and supersede all
prior agreements or understandings between the parties with respect thereto.
This Agreement shall not be altered or otherwise amended except pursuant to an
instrument in writing signed by each of the parties hereto.
(b) DESCRIPTIVE HEADINGS. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provisions of this Agreement.
(c) NOTICES. All notices or other communications pursuant to this
Agreement shall be in writing and shall be deemed to be sufficient if delivered
personally, telecopied, sent by nationally-recognized, overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
(i) if to the Corporation, to:
Xxxxx Plastics Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Boots
Telecopier: (000) 000-0000;
with a copy to:
X'Xxxxxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. X'Xxxxx, Esq.
Telecopier: (000) 000-0000; and
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(ii) if to the Employee, to him or her at:
Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.,
Esq.
Telecopier: (000) 000-0000
All such notices and other communications shall be deemed to have been delivered
and received (A) in the case of personal delivery, on the date of such delivery,
(B) in the case of delivery by telecopy, on the date of such delivery, (C) in
the case of delivery by nationally-recognized, overnight courier, on the
Business Day following dispatch, and (D) in the case of mailing, on the third
Business Day following such mailing. As used herein, "Business Day" shall mean
any day that is not a Saturday, Sunday or a day on which banking institutions in
New York, New York are not required to be open.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(e) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of Indiana applicable to contracts made and
performed wholly therein.
(f) BENEFITS OF AGREEMENT; ASSIGNMENT. The terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, assigns, representatives, heirs and
estate, as applicable. Anything contained herein to the contrary
notwithstanding, this Agreement shall not be assignable by any party hereto
without the consent of the other party hereto.
(g) WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement by the other party must be in writing and shall not
operate or be construed as a waiver of any subsequent breach by such other
party.
(h) SEVERABILITY. In the event that any provision of this Agreement
is determined to be partially or wholly invalid, illegal or unenforceable in any
jurisdiction, then such provision shall, as to such jurisdiction, be modified or
restricted to the extent necessary to make such provision valid, binding and
enforceable, or if such provision cannot be modified or restricted, then such
provision shall, as to such jurisdiction, be deemed to be excised from this
Agreement; provided, however, that the binding effect and enforceability of the
remaining provisions of this Agreement, to the extent the economic benefits
conferred upon the parties by
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virtue of this Agreement remain substantially unimpaired, shall not be affected
or impaired in any manner, and any such invalidity, illegality or
unenforceability with respect to such provisions shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(i) REMEDIES. All remedies hereunder are cumulative, are in addition
to any other remedies provided for by law and may, to the extent permitted by
law, be exercised concurrently or separately, and the exercise of any one remedy
shall not be deemed to be an election of such remedy or to preclude the exercise
of any other remedy. The Employee acknowledges that in the event of a breach of
any of the Employee's covenants contained in Sections 11, 12 or 13, the
Corporation shall be entitled to immediate relief enjoining such violations in
any court or before any judicial body having jurisdiction over such a claim.
(j) SURVIVAL. Section 2, Sections 9 through 12, this Section 13 and
the defined terms used in any section referred to in this Section 13(j), shall
to the extent provided in such Sections, survive the termination of the
Employee's employment on the Termination Date and the expiration of this
Agreement.
* * * *
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IN WITNESS WHEREOF, the parties have duly executed this
Employment Agreement as of the date first above written.
XXXXX PLASTICS CORPORATION
By:
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Xxx X. Boots
President
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Xxxxxxx X. Xxxxxxxx
