EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Agreement, made and dated as of January 16, 2004, with an effective
date of January 16, 2004 ("Effective Date"), by and between Starcraft
Corporation, an Indiana corporation ("Employer"), and Xxxxxxx X. Xxxxxxx, a
resident of Michigan ("Employee").
W I T N E S S E T H
WHEREAS, Employee serves as a member of the Board of Directors, and is to
be employed by Employer as its Co-Chief Executive Officer, and also as President
of each of its subsidiaries and each of its affiliates ("Job Responsibilities");
WHEREAS, Employer desires to encourage Employee to make valuable
contributions to Employer's business operations and not to seek or accept
employment elsewhere;
WHEREAS, Employee desires to be assured of a secure minimum compensation
and Job Responsibilities with Employer for his services over a defined term;
WHEREAS, Employer desires to assure the continued services of Employee on
behalf of Employer on an objective and impartial basis and without distraction
or conflict of interest in the event of an attempt by any person to change
Employee's Job Responsibilities or to obtain control of Employer;
WHEREAS, Employer desires to enter into this employment agreement (the
"Agreement"), and provide fair and reasonable benefits to Employee on the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of these premises, the mutual covenants
and undertakings herein contained and the continued employment of Employee to
perform Job Responsibilities for Employer, Employer and Employee, each intending
to be legally bound, covenant and agree as follows:
1. Upon the terms and subject to the conditions set forth in this
Agreement, Employer employs Employee to perform Job Responsibilities for
Employer, its subsidiaries, and affiliates, and Employee accepts such
employment. "Affiliate," for purposes of this Agreement, means an entity that is
controlled by Employer, or 50% or more owned by Employer, and also means an
entity that adopts this Agreement with the Employer's consent.
2. Employee's Job Responsibilities shall be, and Employee agrees to serve
as, a member of the Board and Co-Chief Executive Officer of Employer, and
President of each of its subsidiaries and affiliates, and member of the Board of
Directors and/or Board of Managers (as the case may be) of each of its
affiliates; provided, however that such duties shall be performed in or from the
current office of Employee in the offices of Employer or affiliate of Employer
currently located at Troy, Michigan, and shall be of the same character as those
previously performed by Employee with affiliates of Employer and generally
associated with the offices previously held by Employee with such affiliates.
Employee shall not be required to be absent from the location of the principal
executive offices of Employer in Troy, Michigan on travel status or otherwise
more than ten (10) days in any calendar year. Employer shall not, without the
written consent of Employee, relocate or transfer Employee to a location more
than fifteen (15) miles from his principal residence. Employee shall perform Job
Responsibilities for Employer and each of its subsidiaries and affiliates in
substantially the same manner and to substantially the same extent as Employee
rendered such services to Employer or its affiliates before the date hereof.
Although while employed by Employer, Employee shall devote substantially all his
business time and efforts to Employer's business and shall not actively engage
in any other business related to that of Employer, Employee may use his
discretion in fixing his hours and schedule of work consistent with the proper
discharge of his duties. Employer shall cause Employee to be nominated to
successive terms as a member of Employer's Board of Directors and shall use its
best efforts to cause Employee to be elected and re-elected as a member of such
Board, and the Board of Directors and/or Board of Managers of each subsidiary
and each affiliate of Employer.
3. The term of this Agreement shall begin on the "Effective Date" and shall
end on the date which is two (2) years following such date (the "Anniversary
Date"); provided, however, that such term shall be extended for additional two
(2) year terms on each Anniversary Date, unless either party hereto gives
written notice to the other party not to so extend within ninety (90) days prior
to each such Anniversary Date, in which case no further extension shall occur
and the term of this Agreement shall end on the Anniversary Date as of which the
notice not to extend is given (such term, including any extension thereof shall
herein be referred to as the "Term"). A notice not to so extend given by either
party shall be a termination of employment prior to the expiration of the Term
of this Agreement, for all purposes, including subsection 7(B) of this
Agreement. Such notice not to extend shall be in the form of the "Notice of
Termination" defined in Section 10 hereof and shall contain specific reference
to specific provisions of Section 7 hereof relied upon for any such termination
of the Term of this Agreement.
4. Employee shall receive an annual salary of not less than Seven Hundred
Thousand Dollars ($700,000) ("Base Compensation") payable at regular intervals
in accordance with Employer's normal payroll practices now or hereafter in
effect. Employer may consider and declare from time to time increases (but not
decreases) in the salary it pays Employee and thereby increases in his Base
Compensation. Employer shall review Employee's Base Compensation on an annual
basis with the intention that such review of the Base Compensation and the
Executive Bonus Plan, subject to the discretion, responsibilities and policies
of the Employer's Compensation Committee, shall cause the annual Base
Compensation and Bonus to increase from year to year. Any and all increases in
Employee's salary pursuant to this section shall cause the level of Base
Compensation to be increased by the amount of each such increase for purposes of
this Agreement. The increased level of Base Compensation as provided in this
section shall become the level of Base Compensation for the remainder of the
Term of this Agreement until there is a further increase in Base Compensation as
provided herein. "Base Compensation" means the total annual base salary payable
to the Employee at the rate in effect on the date of the termination of the Term
of Employment. Base Compensation shall not be reduced for any salary reduction
contributions (i) to cash or deferred arrangements under Section 401(k) of the
Code, (ii) to a Tax Sheltered Annuity under Section 403(b) of the Code, (iii) to
a cafeteria plan under Section 125 of the Code, or (iv) to a nonqualified
deferred compensation plan. Base Compensation shall not take into account any
bonuses, reimbursed expenses, credits or benefits (including benefits under any
plan of deferred compensation), or any additional cash compensation or
compensation payable in a form other than cash. It shall not be a breach of this
Section 4 in the event that Employer and Employee shall mutually agree to reduce
Employee's Base Compensation from time to time. Such reductions shall be
immediately restored prior to the occurrence of any termination of the Term
described in Section 7 and shall be deemed included in the Base Compensation
then in effect at the time of any such event of termination. Furthermore, any
such decrease in Base Compensation from time to time shall not disqualify
Employee from participation in Benefit Plans except as Employee shall agree.
5. So long as Employee is employed by Employer pursuant to this Agreement,
he shall be included as a participant in all present and future employee
benefit, retirement, and compensation plans generally available to employees of
Employer, consistent with his Base Compensation, his Job Responsibilities,
including, without limitation, any Employer 401(k) plan, Stock Incentive Plan,
Executive Bonus Plan, split dollar life insurance program, and group life
insurance plans (collectively, "Benefit Plans"), each of which Employer agrees
to continue in effect on terms no less favorable than those currently in effect
as of the date hereof (as permitted by law) during the Term of this Agreement.
6. In addition to the items of the Benefit Plans referred to in Section 5
hereof, the following shall be additional items included within the definition
of "Benefit Plans" for this Employee under this Agreement. So long as Employee
is employed by Employer pursuant to this Agreement, Employee shall receive
reimbursement from Employer for all reasonable business expenses incurred in the
course of his employment by Employer, upon submission to Employer of written
vouchers and statements for reimbursement. Employee shall attend, at his
discretion, those professional meetings, conventions, and/or similar functions
that he deems appropriate and useful for purposes of keeping abreast of current
developments in the industry and/or promoting the interests of Employer. So long
as Employee is employed by Employer pursuant to the terms of this Agreement,
Employer shall continue in effect vacation policies applicable to Employee no
less favorable from his point of view than those written vacation policies in
effect on the date hereof. So long as Employee is employed by Employer pursuant
to this Agreement, Employee shall be entitled to Employee's existing office
space, existing executive assistant, and other working conditions no less
favorable from his point of view than were in effect for him on the date hereof.
So long as Employee is employed by Employer pursuant to this Agreement, employee
shall be entitled to the use of a company car provided by the Employer. So long
as Employee is employed by Employer pursuant to this Agreement, Employee shall
be entitled to membership in such country clubs, social clubs, and golf clubs
that Employee deems appropriate and useful, and Employer shall continue to pay
the initiation fees, membership fees, and dues and assessments for each of such
memberships. So long as Employee is employed by Employer pursuant to this
Agreement, Employee shall be entitled to personal tax preparation services, an
annual physical examination, personal umbrella insurance coverage in an amount
not less than Ten Million Dollars ($10,000,000.00), and Employer shall pay and
continue to pay the fees, expenses, and premiums for each of the foregoing.
7. Subject to the respective continuing obligations of the parties,
including but not limited to those set forth in Sections 8 hereof, Employee's
employment by Employer may be terminated effective on any Anniversary Date or
otherwise prior to the expiration of the Term of this Agreement upon written
notice as required by Section 10 hereof, and as follows:
(A) Employer, by action of its Board of Directors and upon written
notice to Employee, may terminate Employee's employment with Employer at
any time for Reasonable Cause. For purposes of this subsection 7(A),
"Reasonable Cause" shall be defined as:
(i) the willful, flagrant and repeated failure of Employee to
perform his duties or to comply with the reasonable directions of the
Board of Directors, which failure continues after the Board of
Directors has given written notice to Employee specifying in
reasonable detail the manner in which Employee has failed to perform
such duties or comply with such directions, together with a reasonable
opportunity to cure the failure to perform his duties;
(ii) the conviction of the Employee for a felony which the Board
of Directors determines in the exercise of its reasonable judgment
could be expected to have a material adverse impact on the Employer.
(B) Employer, by action of its Board of Directors, may fail to renew
this Agreement effective any Anniversary Date, or may terminate Employee's
employment with Employer at any time, upon ninety (90) days' prior written
notice to Employee, without Reasonable Cause.
(C) Employee, at any time and upon ninety (90) days' prior written
notice to Employer, may terminate his employment with Employer, and if in
the notice of termination the Employee declares this notice of termination
is the result of a change of Job Responsibilities without Employee's
consent, then in such an event such a termination is a termination by
Parent without Reasonable Cause for purposes of Section 7(B) and Section
8(F) hereof.
(D) Employee's employment with Employer shall terminate in the event
of Employee's death or permanent disability. "Disability" means (i) if
Employee is covered by an individual or group long-term disability policy
under Employer's Benefit Plans, then as defined in such policy without
regard to any waiting period, or (ii) if (i) is inapplicable, then
"disability" shall be defined as Employee's permanent inability by reason
of illness or other physical or mental incapacity to perform Job
Responsibilities for any consecutive one hundred eighty (180) day period,
provided that Notice of Termination by Employer because of Employee's
"disability" shall have been given to Employee prior to the full resumption
by him of the performance of such duties.
8. In the event of termination of Employee's employment with Employer
pursuant to Section 7 hereof, which shall include a nonrenewal of this Agreement
on any Anniversary Date as provided in Section 3 hereof or in Subsection 7(B) or
Subsection 7(C) hereof, written Notice of Termination as required by Section 10
shall be given, and, compensation shall continue to be paid by Employer to
Employee as follows:
(A) In the event of termination for Reasonable Cause by Employer
pursuant to subsection 7(A), compensation provided for herein (including
Base Compensation) shall continue to be paid, and Employee shall continue
to participate in the Benefit Plans and other perquisites as provided in
Sections 5 and 6 hereof, through the date of termination specified in the
Notice of Termination. Any benefits payable under such Benefit Plans as a
result of Employee's participation in such plans through such date shall be
paid when due under those plans. The date of termination specified in any
Notice of Termination pursuant to subsection 7(A) shall be no later than
the last business day of the month following the month in which such notice
is provided to Employee.
(B) In the event of termination without Reasonable Cause by Employer
pursuant to subsection 7(B), or by Employee pursuant to subsection 7(C),
compensation provided for herein (including Base Compensation) shall
continue to be paid, and Employee shall continue to participate in the
Benefit Plans and other perquisites as provided in Sections 5 and 6 hereof,
through the date of termination specified in the Notice of Termination. Any
benefits payable under such Benefit Plans as a result of Employee's
participation in such plans through such date shall be paid when due under
those plans. In addition, Employee shall at his option exercised effective
the date of termination of the Term, be entitled to receive one of the
following:
either,
(i) Employee shall be entitled to continue to receive from
Employer his Base Compensation at the rates in effect at the time of
termination of the Term for two (2) additional twelve (12) month
periods. In addition, during such periods, Employer will maintain in
full force and effect for the continued benefit of Employee and his
spouse and his dependents each Benefit Plan described in Section 5 and
Section 6 in which Employee was entitled to participate immediately
prior to the date of his termination, unless an essentially equivalent
and no less favorable benefit is provided by a subsequent employer of
Employee. If the terms of any such Benefit Plan, or applicable laws,
do not permit continued participation in the Benefit Plans by Employee
and his spouse and his dependents, Employer will arrange to provide to
Employee and his spouse and his dependents a benefit substantially
similar to, and no less favorable than, the benefit he and his spouse
and his dependents were entitled to receive under such Benefit Plans;
or,
(ii) Employee shall be entitled to receive from Employer his Base
Compensation at the rates in effect at the time of termination for two
(2) additional twelve (12) month periods, payable in one lump sum
payment on or before thirty (30) days following the date of
termination, and Employer will not thereafter maintain any Benefit
Plan for the continued benefit of Employee and his spouse and his
dependents.
(C) In the event Employee's employment with Employer shall terminate
in the event of Employee's death, pursuant to subsection 7(D), compensation
provided for herein (including Base Compensation) shall continue to be paid
through the date of death. Employee's spouse and his dependents shall
continue to participate in the Benefit Plans and other perquisites as
provided in Section 5 and Section 6 hereof. From and after the date of
Employee's death, the spouse of Employee (or if none surviving, the
dependents of Employee) shall be entitled to continue to receive from
Employer the Employee's Base Compensation and Benefit Plans perquisites at
the rates in effect at the time of death, for two (2) additional twelve
(12) month periods. In addition, during such periods, Employer will
maintain in full force and effect for the continued benefit of the spouse
and dependents of Employee each Benefit Plan in which the spouse (or if
none surviving, the dependents of Employee) was entitled to participate
immediately prior to the date of death of Employee, unless an essentially
equivalent and no less favorable benefit is provided by a subsequent
employer of the spouse of Employee. If the terms of any Benefit Plan, or
applicable laws, do not permit continued participation by the spouse (or if
none surviving, the dependents of Employee), Employer will arrange to
provide to spouse (or if none surviving, the dependents of Employee) a
benefit substantially similar to, and no less favorable than, the benefit
the spouse (or if none surviving, the dependents of Employee) was entitled
to receive under such Benefit Plans at the date of death of Employee.
Employer reserves the right to cause the payments provided for herein to be
funded and paid in whole or in part from life insurance, annuities, or
other such similar devices, in its sole discretion.
(D) In the event Employee's employment with Employer shall terminate
in the event of Employee's disability pursuant to subsection 7(D),
compensation provided for herein (including Base Compensation) shall
continue to be paid through the date of disability as defined in subsection
7(D), and from and after the date of Employee's disability and during the
continuance or recurrence thereof, Employee shall be entitled to continue
to receive from Employer the Employee's Base Compensation and Benefit Plans
at the rates in effect at the time of termination for five (5) additional
twelve (12) month periods. In addition, during such periods, Employer will
maintain in full force and effect for the continued benefit of Employee and
his spouse and his dependents each Benefit Plan in which Employee was
entitled to participate immediately prior to the date of disability of
Employee, unless an essentially equivalent and no less favorable benefit is
provided by a subsequent employer of Employee. If the terms of any Benefit
Plan, or applicable laws, do not permit continued participation by Employee
and his spouse and his dependents, Employer will arrange to provide
Employee and his spouse and his dependents a benefit substantially similar
to, and no less favorable than, the benefit Employee and his spouse and his
dependents were entitled to receive under such Benefit Plans at the date of
disability of Employee. Employer reserves the right to cause the payments
provided herein to be funded and paid in whole or in part from life
insurance, annuities, or other such similar devices, in its sole
discretion.
(E) Employer will permit Employee or his personal representative(s) or
heirs, during a period of three months following termination of Employee's
employment by Employer for any reason, including Reasonable Cause, to
require Employer, upon written request and at Employee's or his personal
representative's or his heirs' option, to purchase all or less than all of
outstanding warrants or stock options previously granted to Employee under
any Employer warrant or stock option plan then in effect, whether or not
such warrants or options are then exercisable or have terminated, at a cash
purchase price equal to the amount by which the aggregate "fair market
value" of the shares subject to such options or warrants exceeds the
aggregate warrant or option or warrant price for such shares. For purposes
of this Agreement, the term "fair market value" shall mean the higher of
(i) the average of the highest asked prices for Employer shares in the
over-the-counter market as reported on the NASDAQ system or other national
exchange if the shares are traded on such system for the thirty (30)
business days preceding such termination, or (ii) the average per share
price actually paid for the most highly priced one percent (1%) of the
Employer shares acquired in connection with any Change of Control of the
Employer by any person or group acquiring such control.
(F) In the event of termination without Reasonable Cause by Employer
pursuant to subsection 7(B), before the date the Secondary Shelf
Registration (as such term is used in Schedule 2.01(d), "Registration
Rights," to the Agreement and Plan of Merger by and among Employer and
Wheel to Wheel, Inc., et al. dated effective October 30, 2003) becomes
effective, then Employee may immediately require Employer to accelerate the
filing of the Secondary Shelf Registration and Employer shall in good faith
use its best efforts to cause the Secondary Shelf Registration, at least
with respect to the Employee's shares, as such are described in the
Registration Rights, to become effective on a date identified by Employee
(not earlier than the date which is ninety (90) days after the termination
date in the Notice of Termination) and remain effective continuously
thereafter for a period of at least two (2) years.
9. In order to induce Employer to enter into this Agreement, Employee
hereby agrees as follows:
(A) Unless otherwise required to do so by law, including the order of
a court or governmental agency, Employee shall not divulge or furnish any
trade secrets (as defined in IND. CODE ss. 24-2-3-2) of Employer or any
confidential information acquired by him while employed by Employer
concerning the policies, plans, procedures or customers of Employer to any
person, firm or corporation, other than Employer or upon its written
request, or use any such trade secret or confidential information directly
or indirectly for Employee's own benefit or for the benefit of any person,
firm or corporation other than Employer, since such trade secrets and
confidential information are confidential and shall at all times remain the
property of Employer. To that end, Employee agrees as follows:
(i) That all drawings, blueprints, manuals, letters, reports
memoranda, notes, notebooks, customer lists and all other documents or
materials whether or not of a secret or confidential nature (and all
copies thereof) relating to Employer or any of its affiliates business
in any way obtained by Employee while employed by Employer shall be
Employer's property and shall be delivered by Employee to Starcraft on
termination of Employee's employment or at any time at Employer's
request together with Employee's written certification of compliance.
This includes but is not limited to documents or other materials
concerning customers, pricing, marketing, and method or process,
product or apparatus manufactured, used, developed, or investigated by
Employer or any of its affiliates, all of which are CONFIDENTIAL;
(ii) To disclose to Employer promptly and fully any invention,
discovery or improvement, ("invention(s)") whether patentable or not,
hereafter made or conceived solely or jointly by Employee while
employed by Employer and which relates in any manner to the business
or activities of Starcraft or any of its affiliates or is suggested by
or results from any duties assigned to Employee or work performed by
Employee for or on behalf of Employer;
(iii) That when requested by Employer, whether during or
subsequent to Employee's employment, to execute patent applications
and other instruments considered necessary by Employer to apply for
any obtain Letters Patent of the United States and foreign countries
with respect to inventions covered by this Agreement and to make
assignments and execute other instruments necessary to convey to
Employer ownership and exclusive rights in such inventions, patent
applications and patents; provided, however, that Employer shall bear
all expenses connected with such patents, patent applications and
maintenance of patent protection, and if services in connection
therewith are performed by Employee at the request of Employer after
termination of Employee's employment, Employer shall pay reasonable
compensation for such post-employment services.
(B) For a period of two years after termination of Employee's
employment by Employer for reasons other than those set forth in
subsections 7(B) or (C) of this Agreement, Employee shall not (a) compete,
directly or indirectly, with the business of Employer as conducted during
the term of this Agreement (defined as aftermarket parts, upfit
customization and specialized packages, and second tier supplier to OEM's),
or have any interest (including any interest or association, including but
not limited to, that of owner, part owner, partner, shareholder, director,
officer, employee, agent, consultant, lender or advisor) in any person,
firm or entity which competes with Employer in the geographic area
described on the attached Exhibit A (each such person, firm or entity is
referred to as "Competitor"); (b) solicit or accept business for or on
behalf of any Competitor; (c) solicit, induce or persuade, or attempt to
solicit, induce or persuade, any person to work for or provide services to
or provide financial assistance to, any Competitor; or (d) solicit or
accept for or on behalf of or for the benefit of any Competitor, any
business from any person, firm or entity which during the term of this
Agreement was a vendor or supplier to, or subcontractor for, or commercial
purchaser from, Employer.
(C) If Employee's employment by Employer is terminated for any reason
by either Employee or Employer, Employee will turn over immediately
thereafter to Employer all business correspondence, letters, papers,
reports, customers' lists, financial statements, records, drawings, credit
reports or other confidential information or documents of Employer or its
affiliates in the possession or control of Employee, all of which writings
are and will continue to be the sole and exclusive property of Employer or
its affiliates.
(D) If Employee's employment by Employer is terminated during the Term
of this Agreement for reasons set forth in subsections 7(B) or (C) of this
Agreement, Employee shall have no obligations to Employer with respect to
noncompetition under subsections 9(A) and 9(B).
10. Any termination of Employee's employment with Employer as contemplated
by Section 3 and Section 7 hereof, except in the circumstances of Employee's
death, shall be communicated by written "Notice of Termination" by the
terminating party to the other party hereto. Any "Notice of Termination" must
refer to one or more of the subsections of Section 7, shall indicate the
specific provisions of this Agreement and one or more of such subsections of
Section 7 relied upon, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination under one or more
of such subsections of Section 7.
11. Anything in this Agreement to the contrary notwithstanding, payment of
Base Compensation by the Employer to or for the benefit of the Employee pursuant
to subsection 8(B) hereof shall be inclusive of payment attributable to the
confidentiality covenants of subsection 9(A), and shall be payable whether or
not deductible by the Employer for federal income tax purposes.
12. If a dispute arises regarding termination of employment pursuant to
Section 3 and Section 7 hereof, said dispute shall be resolved by binding
arbitration determined in accordance with the rules of the American Arbitration
Association and if Employee obtains a final award in his favor or his claim is
settled by Employer prior to the rendering of an award by such arbitration, all
reasonable legal fees and expenses incurred by Employee in contesting or
disputing any such termination or otherwise pursuing his claim shall be paid by
Employer, to the extent permitted by law. If a dispute arises regarding other
provisions of this Agreement, including enforcement of the confidentiality
provisions hereof, then such shall be heard only by the judge and not by a jury,
in any court of general jurisdiction in Elkhart County, Indiana, to which such
sole and exclusive jurisdiction each party irrevocably consents. Each party
agrees not to assert and hereby waives any right of removal, consolidation or
joinder with any other action, or any transfer by reason of preferred venue. The
prevailing party shall be entitled to its costs, expenses and reasonable
attorney's fees. It is provided, however, that in either of arbitration or
judicial proceedings, if it is determined that Employer breached any of the
material terms or conditions of this Agreement, then as liquidated damages,
Employee shall be entitled to receive not less than the Base Compensation and
Benefit Plan payments described in subsection 8(B) hereof.
13. Should Employee die after termination of his employment with Employer
while any amounts are payable to him hereunder, this Agreement shall inure to
the benefit of and be enforceable by Employee's executors, administrators,
heirs, distributees, devisees and legatees and all amounts payable hereunder
shall be paid in accordance with the terms of this Agreement to Employee's
devisee, legatee or other designee or, if there is no such designee, to his
estate.
14. For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been given
when sent by facsimile confirmed receipt and simultaneously mailed by United
States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Employee: Xxxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Employer: Starcraft Corporation
0000 X. Xxxxxxx Xxxxxx
Post Office Box 1903
Goshen, IN 46527-1903
Attention: Xxxxxxx X. Xxxxxxxxxx, President
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such address as either party hereto may have furnished to the other party
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
15. The validity, interpretation, and performance of this Agreement shall
be governed by the laws of the State of Indiana.
16. Employer shall require any successor, assignee, distributee or other
transferee of all or substantially all of its or its affiliates' or its
subsidiaries' assets or business ("Succession") (whether direct or indirect, by
purchase, merger, dissolution, liquidation, consolidation or otherwise) by
agreement in form and substance satisfactory to Employee to expressly assume and
agree to perform this Agreement in the same manner and same extent that Employer
would be required to perform it if no such Succession had taken place. As used
in this Agreement, "Employer" shall mean Employer or any of its subsidiaries or
affiliates from time to time and any successor to its or their business or
assets as aforesaid.
17. No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
Employee and Employer. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of dissimilar provisions or conditions at the same or any prior or
subsequent time. No agreements or representation, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
18. The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement which shall remain in full force and effect.
19. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same agreement.
20. This Agreement is personal in nature and neither party hereto shall,
without consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder except as provided in Section 13 and Section 16 above.
Without limiting the foregoing, Employee's right to receive compensation
hereunder shall not be assignable or transferable, whether by pledge, creation
of a security interest or otherwise, other than a transfer by his will or by the
laws of descent or distribution as set forth in Section 13 hereof, and in the
event of any attempted assignment or transfer contrary to this paragraph,
Employer shall have no liability to pay any amounts so attempted to be assigned
or transferred.
21. No benefit payable at any time under this Agreement shall be subject in
any manner to alienation, sale, transfer, assignment, pledge, attachment, levy,
garnishment, or encumbrance of any kind.
22. Employer shall withhold any applicable income or employment taxes that
are required to be withheld from the benefits provided under this Agreement.
23. Employer does not guarantee payment of benefits payable under any
insurance coverage described or referred to herein, and any benefits thereunder
shall be the exclusive responsibility of the insurer that is required to provide
such benefits under such policy.
24. If the Employee transfers employment from Employer to a subsidiary or
an affiliate, then the Employee shall not be deemed to have terminated
employment for any purpose under this Agreement.
25. Employer shall continuously maintain its current liability insurance
through the termination date in the Notice of Termination, with such current
coverage for Employee as they relate to his Job Responsibilities, and
thereafter, Employer shall continue such coverage whether on "occurrence" or
"claims made" basis such that Employee does not incur a lapse in coverage.
Employer agrees not to materially modify, change or release (A) any insurance
coverages inuring to the benefit of Employee for claims or circumstances prior
to the termination date in the Notice of Termination such as: errors and
omissions, antitrust, defamation, libel and/or slander, officer and director
liability, employment practices, and the like, whether or not such claims or
circumstances are known, unknown, liquidated, or contingent, or (B) any right of
contribution, indemnity, hold harmless, or recoupment under the respective
Articles of Incorporation, Operating Agreement, and/or By-Laws of Employer, its
affiliates, and its subsidiaries.
26. Commencing upon the termination date in the Notice of Termination, the
Employee shall cease to be an employee of the Employer for any purpose. The
payment of benefits under this Agreement shall be payments to a former employee.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed
and delivered this 16th day of January, 2004.
"Employee" "Employer"
STARCRAFT CORPORATION
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------- -------------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
Its: President
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
Its: Compensation Committee Chairman
