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EXHIBIT 10.6
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
This Non-competition and Non-disclosure Agreement (the "Agreement"), is
entered into this 9th day of February, 1998, by and between KEY PLASTICS
TECHNOLOGY, L.L.C., a Michigan Limited Liability Company, of 00000 Xxxxxxxx
Xxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000 (the "Company") and XXXXX X. XXXXXX (the
"Executive").
Statement-of Facts
The Company is engaged in the business of manufacturing, designing,
marketing and supplying highly engineered plastic components and assemblies to
automotive original equipment manufacturers ("OEMs") in Michigan, Pennsylvania,
Ohio, Indiana, the United Kingdom, Mexico, Portugal and France. The Executive is
a member of the management committee of the Company employed by the Company as
its Chief Executive Officer. As a result of his employment by the Company and
his operation of the business, the Executive has obtained and will obtain
certain proprietary, secret and confidential information concerning the business
of the Company including without limitation, product engineering and design
information, financial and organizational information, the identity of customers
and sources of supply, their needs and requirements, the nature and extent of
contracts with them, and related cost, price and sales. Part of the Executive's
compensation is being paid to preserve the confidential nature of such
information. Accordingly, the parties have agreed that this confidence shall be
maintained while the Executive continues in the Company's employment and for a
reasonable period of time in the event either party terminates the employment
relationship.
Agreement
In consideration of the above facts and the mutual covenants of the
parties, IT IS AGREED:
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1. Except in the course of fulfillment of his obligations as an
employee of the Company, the Executive shall at no time during the term of this
Agreement or for a period of six (6) months immediately following the
termination of his employment with the Company ("Restricted Period"), engage in
the business of manufacturing, designing, marketing and supplying plastic
automotive components and assemblies to automotive OEMs in any location within a
fifty (50) mile radius of any facility of the Company ("Prohibited Business") ,
provided, however, that this Agreement shall not prohibit the executive from
participating in the business of Complex Tooling & Molding Inc., a plastics
manufacturer for the telecommunications and computer industry. The Executive
shall not engage in the Prohibited Business during the Restricted Period,
directly or indirectly, either for himself or on behalf of any other person,
firm, corporation, company or other entity, whether as an officer, director,
employee, partner, sole proprietor, agent, representative, independent
contractor, consultant, franchisor, franchisee, creditor, owner or otherwise.
2. Unless the Executive shall first obtain the Company's written
permission, he shall not disclose or use at any time, either during or
subsequent to his employment with the Company, any secret, privileged,
confidential or proprietary information concerning the Company, whether or not
patentable, copyrightable or otherwise protectable, of which the Executive
becomes aware during his employment with the Company, whether or not developed
by the Executive, except as required in the Executive's duties to the Company.
Confidential information shall include information concerning the Company not
generally known in the business community, including, but not limited to
information concerning the Company's customer lists, supplier lists, price
lists, sales and service records, equipment, apparatus, processes, methods,
improvements, inventions, data, sales figures, projections, quotations,
estimates, accounting and billing procedures, other records, personnel
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history, trade secrets, reports, budgets and other financial information, the
acquisition, installation and utilization of equipment and procedures,
technological developments, "know-how", computer programs, and the like. This
information, as well as all records, files, plans, sketches, notes, note books,
letters, software, computer tapes or diskettes, or other physical records or
documents relating to the business of the Company, or copies thereof, which the
Executive shall use, prepare or come in contact with, shall remain the sole
property of the Company, and the Executive shall, upon termination of his
employment with the Company, promptly return all such material in his possession
and control to the Company. All right, title, and interest of every kind and
nature, whether now known or unknown, in and to any intellectual property,
including, but not limited to, any inventions, patents, trademarks, service
marks, copyrights, films, scripts, ideas, creations, and properties invented,
created, written, developed, improved or produced by the Executive, alone or
with others, in the course of rendering services to the Company shall, as
between the Company and the Executive, be and remain the sole and exclusive
property of the Company for any and all purposes and uses, and Executive shall
have no right, title, or interest of any kind or nature in or to such property,
or in or to any results and/or proceeds from such property. The Executive agrees
to assist the Company, at the Company's expense, to obtain patents or copyrights
on any such patentable or copyrightable ideas, inventions, and other
developments, and agrees to execute all documents necessary to obtain such
patents or copyrights in the name of Company.
3. Following termination of employment with the Company, the Executive
agrees to immediately notify any subsequent employer of the terms and conditions
of this Agreement.
4. The Executive shall not be bound by the terms of this Agreement in
the event his employment is terminated by the Company or by a successor to the
Company for any event except
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termination by the Company for "good cause." "Good cause" shall mean any one or
more of the following occurrences:
(a) Executive's conviction, or entry of a plea of nolo
contendere, in a court of competent and final jurisdiction for any felony crime
involving moral turpitude or punishable by imprisonment in the jurisdiction
involved;
(b) The Executive commits an act of fraud, misappropriation,
embezzlement, or acts of dishonesty upon the Company;
(c) The Executive's breach of the terms of any agreement
between the Company and the Executive;
(d) The Executive's willful misconduct; or
(e) The Executive's breach of fiduciary duty to the Company.
Additionally, the Executive shall not be bound by the terms of this
Agreement in the event that his employment is terminated by the Company or any
successor thereto following a Change in Control. A "Change in Control" shall
mean the (i) sale of all or substantially all of the assets of the Company to an
unaffiliated third-party, or (ii) a merger or other exchange involving the
Company with an unaffiliated third-party in which the members of the Company
immediately prior to such transaction do not own a majority of the outstanding
equity interests of the entity surviving such transaction.
5. The Executive agrees that violation of this Agreement may cause
irreparable harm to the Company. If the Company brings legal action to prevent
the Executive from violating this Agreement, the Executive consents to the entry
of a court order enjoining further violation of the Agreement. The equitable
relief permitted by this paragraph 5 shall not prejudice the Company's
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right to other legal remedies.
6. The Executive acknowledges that nothing in this Agreement shall be
deemed to create any expectations or promises as to job security or advancement.
This Agreement shall not change in any way the terms and conditions of the
Executive's employment by the Company, but only states specifically certain
covenants relating to the relationship between the Company and the Executive.
7. This Agreement embodies the entire agreement and understanding
between the parties hereto and there are no other agreements or understandings,
oral or written, between the parties hereto with respect to the subject matter
hereof, and this Agreement shall supersede all previous agreements,
negotiations, commitments and writings with respect to the subject matter
hereof. In the event any provision of this agreement or portion thereof is found
to be wholly or partially invalid, illegal or unenforceable in any judicial
proceedings, then such provision shall be deemed to be modified or restricted to
the extent and in the manner necessary to render the same valid and enforceable,
or shall be deemed excised from this Agreement, as the case may require, and
this Agreement shall be construed and enforced to the maximum extent permitted
by law, as if such provision had been originally incorporated herein as so
modified or restricted, or as if such provision had not been originally
incorporated herein, as the case may be.
8. Any modification of this Agreement must be made in writing and
signed by both parties.
9. This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Michigan, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Michigan or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Michigan. This Agreement may be executed
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in any number of counterparts, each of which shall constitute an original, but
when taken together shall constitute but one instrument.
10. This Agreement shall be binding upon the Executive and the
Executive's executors, administrators and assigns, and shall inure to the
benefit of the Company and its successors and assigns.
11. No failure on the part of either party to exercise, and no delay in
exercising or course of dealing with respect to, any right, power or privilege
under this Agreement (or breach of any obligation under any other agreement)
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement or any other agreement (or
breach of any obligation under any other agreement) preclude any other or
further exercise thereof or hereunder, or the exercise of any other right, power
or privilege. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law.
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IN WITNESS OF WHICH, the parties have executed this Agreement as
of the date first written above.
KEY PLASTICS TECHNOLOGY, L.L.C.
By: /s/ Xxxx X. Xxxx
Its: Treasurer
/s/ Xxxxx X. Xxxxxx
XXXXX X. XXXXXX
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