EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made and effective as of this 9th day of March 2005,
between XXXXXX PRODUCTS, INC., a Delaware corporation "XXXXXX"), and XXXX X.
XXXXXXX ("EXECUTIVE").
WHEREAS, Xxxxxx wishes to continue to employ Executive as an officer of
Xxxxxx; and
WHEREAS, Executive wishes to continue employment with Xxxxxx in such
position; and
WHEREAS, Company (as defined in paragraph 14.1 below) is engaged in:
(i) the acquisition for and the distribution and sale of fasteners, parts,
hardware, pneumatics, hydraulic and other flexible hose fittings, tools, safety
items and electrical and shop supplies, automotive and vehicular products,
chemical specialties, maintenance chemicals and other chemical products, welding
products and related items, all as more particularly described in Company's
sales kits and manuals; (ii) the sale and distribution and the providing of
systems and services related thereto; and (iii) the manufacture, sale and
distribution of production and specialized parts and supplies; and (iv) the
provision of just-in-time inventories of component parts to original equipment
manufacturers and of maintenance and repair parts to a wide variety of users;
and (v) the provision of in-plant inventory systems and of electronic
vendor-managed, inventory systems to various customers (collectively "Company's
Products, Systems and Services"). Company's independent sales agents or other
representatives employed or retained by Company ("Agents"), solicit orders for
Company's Products, Systems and Services, in the territories assigned to them
and also maintain, on behalf of Company, frequent contact for such purposes with
customers; and
WHEREAS, Xxxxxx'x officers are responsible for duties inherent to their
offices relating to the management and operation of the Company, including but
not limited to assisting Company in the development of its product line, the
marketing, sale and distribution of Company's Products, Systems and Services to
Company's customers, assisting in the cross-marketing and cross-selling of
products of Company, and for Company's sales activities, including but not
limited to its sales management and management of its employees, agents and
other representatives; and
WHEREAS, Xxxxxx'x officers interact, cooperate, assist and confer with
executives, employees, officers, directors, agents, representatives, consultants
and others within the Company in the regular course of business and regularly
engage in management, sales, distribution and operational activities, and
activities relating thereto or in connection therewith; and
WHEREAS, Xxxxxx reposes great trust and confidence in its officers.
NOW THEREFORE, in recognition of the needs of Company and its
employees, and in consideration of Executive's position with and employment or
continued employment by Xxxxxx, the rights and benefits provided hereunder and
in any plan or program which requires as a condition to participation therein or
receipt of benefits thereunder by Executive's, execution of this Agreement, and
of the mutual agreements, promises and undertakings herein set forth, and for
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, Xxxxxx and Executive mutually agree as
follows:
1. EMPLOYMENT/DUTY OF LOYALTY.
Xxxxxx hereby agrees to employ Executive as Executive Vice President,
General Counsel and Secretary (or with such other title as mutually agreed upon)
and as a member of its Corporate Management Committee, on a full-time basis, and
Executive hereby accepts such employment. Executive shall report to the Chief
Executive Officer, or to such other person as designated by the Chief Executive
Officer (the "REPORTING PERSON").
Executive hereby acknowledges that he has a fiduciary responsibility
and duty of loyalty to Company hereunder. For so long as Executive remains
employed, Executive shall, on a full-time basis, devote his best efforts and his
entire business time, energy, attention, knowledge and skill solely and
exclusively to advance the interests, products and goodwill of Company.
Executive shall diligently, competently and faithfully perform the duties
assigned to him by Company from time to time.
2. COMPENSATION AND BENEFITS.
2.1 Executive shall receive the following compensation:
(a) An annual salary in the amount of $275,000.00, which
amount may be increased by the Chief Executive Officer of Xxxxxx
subject to approval of the Compensation Committee of the Board of
Directors, in its sole discretion, from time to time, which salary
shall be payable in substantially equal semi-monthly installments
("SALARY").
(b) Commencing with the year 2004, an annual incentive bonus,
if any, determined by the Compensation Committee of the Board of
Directors of Xxxxxx in its sole discretion based upon the overall
growth and profitability of the Company as compared to the prior year
(the "INCENTIVE BONUS"). The Incentive Bonus, if any, shall be payable
not later than April 15 of the following year, provided Executive's
employment hereunder has not been terminated by Xxxxxx for cause prior
to such date. The terms, conditions and provisions of the Incentive
Bonus shall be in conformance with the incentive bonus program
applicable to executive officers generally and particularly to such
office as is held by Executive.
(c) Eligibility to participate in the Long-Term Capital
Accumulation Plan if and as recommended by Xxxxxx'x Chief Executive
Officer and if and as determined in the sole discretion of the
Compensation Committee of the Board of Directors of Xxxxxx.
2.2 Executive shall receive the following standard benefits; provided,
however, Xxxxxx may modify or terminate such benefits from time to time to the
extent and on such terms as Xxxxxx modifies or terminates such benefits as
provided to other officers:
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(a) Coverage under Xxxxxx'x group health plan on such terms as
provided to Xxxxxx'x officers.
(b) Long-term disability insurance coverage; provided however,
if Executive becomes disabled within the meaning of any long-term
disability policy then in effect, Xxxxxx will pay to Executive the
Salary which would have been due but for Executive's disability for six
(6) months following such disability. For thirty (30) months
thereafter, Xxxxxx will pay to Executive sixty percent (60%) of the
Salary of Executive which would have been due but for Executive's
disability. While Xxxxxx is making such payments, Xxxxxx will be
entitled to receive in money or by credit against such payments a sum
equal to any Company provided long-term disability insurance benefits
paid to or for the benefit of Executive for such period.
(c) Group term life insurance with a death benefit amount of
not less than $50,000, with additional double indemnity coverage.
(d) Accidental death insurance.
(e) Participation in Xxxxxx'x 401(k) and profit-sharing
retirement plans.
(f) Four weeks annual vacation under the terms of Xxxxxx'x
vacation policy for officers.
(g) Participation in Employer's Executive Deferral Plan, if
any.
(h) If Executive dies while employed by Xxxxxx under this
Agreement and is not then in default or breach of this Agreement,
Xxxxxx shall pay an additional compensation amount equal to two (2)
times the annual Salary being paid to Executive at the time of his
death ("ADDITIONAL COMPENSATION AMOUNT"). The Additional Compensation
Amount shall be payable to the beneficiary(ies) identified in writing
by Executive from time to time on forms provided by Xxxxxx for that
purpose and filed by Executive with Xxxxxx and shall be paid in
forty-eight (48) equal, semi-monthly installments made as of the 15th
day and the last day of each calendar month following Executive's
death.
(i) Reimbursement for all reasonable and approved business expenses in
accordance with Xxxxxx policy, or as otherwise approved by the
Reporting Person, provided Executive submits paid receipts or other
documentation acceptable to Xxxxxx and as required by the Internal
Revenue Service to qualify as ordinary and necessary business expenses
under the Internal Revenue Code of 1986, as amended (the "Code").
2.3 All compensation and benefits to become payable to Executive under
subparagraphs 2.1 and 2.2 shall be subject to applicable governmental laws and
regulations regarding income tax withholding and other payroll taxes and
deductions.
3. TERMINATION OF EMPLOYMENT.
3.1 Executive's employment under this Agreement may be terminated as
follows:
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(a) By Xxxxxx, without cause, effective on the date that
written notice of
termination is delivered to Executive or sent to him by certified or
registered mail to Executive's home address as listed on Xxxxxx'x
records (or effective on such later date as indicated in such notice).
(b) By Xxxxxx, for cause, effective on the date that written
notice of termination is delivered to Executive or sent to him by
certified or registered mail to Executive's home address as listed on
Xxxxxx'x records. For purposes of this Agreement, cause shall mean (i)
violation by Executive of any agreement between Executive and Xxxxxx or
any law relating to non-competition, trade secrets, inventions,
non-solicitation or confidentiality; (ii) material breach or default of
any of Executive's duties or other obligations or covenants under this
Agreement; (iii) Executive's gross negligence, dishonesty or willful
misconduct; (iv) any act or failure to act by Executive which has an
adverse effect on the Company's reputation, goodwill or customer
relations; (v) conviction of a crime by Executive (other than traffic
related offenses); or (vi) an act of fraud, embezzlement or the
misappropriation of property by Executive.
(c) By Executive effective on the expiration of sixty (60)
days following written notice of resignation delivered to the Reporting
Person by certified or registered mail, or hand delivery or overnight
mail.
(d) Automatically, upon Executive's date of death or the date
on which Executive is determined to be permanently "disabled" pursuant
to the terms of Xxxxxx'x long-term disability insurance policy.
3.2 Executive shall remain employed by Xxxxxx until the effective date
of termination or resignation, as the case may be, unless the parties shall
otherwise agree; provided, however, following Xxxxxx'x notice of termination
without cause or Executive's notice of resignation in accordance herewith, and
until the effective date thereof, Executive shall perform only those services
specifically authorized and directed by the Reporting Person, Chief Executive
Officer or the Board of Directors and shall receive as compensation while so
employed only the annual Salary then in effect and benefits as then in effect,
subject to modifications in such benefits as may occur in the interim pertaining
to such benefit programs generally affecting officers of Xxxxxx.
3.3 Upon the effective date of termination of Executive's employment
under this Agreement:
(a) Executive, upon notice of termination of his employment,
shall immediately return to Xxxxxx all Company property, including
without limitation the property and information described in paragraphs
4 or 5 hereof, in whatever form, together with all copies thereof in
his possession or under his control.
(b) Xxxxxx shall pay to Executive, within ninety (90) days
following the effective date of termination of his employment, the sum
of any compensation or benefits or other amounts due to him from Xxxxxx
as may be accrued for periods prior to the effective date of
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termination and not previously paid, less the sum of any payments,
advances, loans and other charges due and owing from Executive to
Company.
(c) In the event of termination pursuant to paragraph 3.1(a)
hereof during the first twelve-month period following Executive's
commencement of employment with the Xxxxxx, Xxxxxx shall, in return for
Executive's performance of the Consulting Services (as defined below),
pay to Executive an amount equal to one month's Salary times the number
of complete months Executive has been employed by Xxxxxx; otherwise,
Xxxxxx shall have no obligation to Executive. In the event of
termination pursuant to paragraph 3.1(a) hereof after the first
twelve-month period following Executive's commencement of employment
with Xxxxxx, Xxxxxx shall, in return for Executive's performance of the
Consulting Services (as defined below), pay to Executive an amount
equal to one year's annual Salary plus two additional months' Salary
(to a maximum of twelve additional months Salary) for each complete
year Executive has been employed by Xxxxxx after the initial
twelve-month period of employment by the Xxxxxx. (For example, if
Executive is employed for six (6) years, Executive would be paid one
year's annual Salary plus an additional ten (10) months of that annual
Salary). Amounts due to Executive under this paragraph 3.3(c) shall be
paid to Executive in equal, semi-monthly installments as though
Executive had continued in the employ of the Xxxxxx for the period of
time upon which such payment is based. (For example, if Executive is
entitled to an amount equal to six months' Salary, such amount shall be
paid to Executive in equal semi-monthly installments over the six-month
period immediately following the effective date of termination.) The
period of time in which Xxxxxx is obligated to provide salary
continuation payments to Executive pursuant to this paragraph 3.3(c) is
referred to herein as the "Salary Continuation Period". During the
Salary Continuation Period, Executive shall be entitled to continued
health and life insurance coverage on substantially the same basis
afforded to him prior to termination of Executive's employment. During
the Salary Continuation Period, Executive shall, upon request of the
Company, make himself reasonably available on a limited basis from time
to time to consult with Xxxxxx regarding the business affairs of the
Company (the "CONSULTING SERVICES"); provided, however, Executive's
Consulting Services shall be limited to not more than twenty-four (24)
hours in any calendar quarter and so that such consulting does not
interfere with Executive's employment time commitments with any
successor employer.
(d) Following termination of Executive's employment with
Xxxxxx for any reason, Company shall have no obligation to provide for
post-termination compensation or benefits to Executive (except as
provided by paragraph 3.3(b) and as otherwise provided by law) unless
Executive executes and delivers to the Xxxxxx a release, in form
reasonably satisfactory to the Xxxxxx, of all claims against the
Company and its officers, directors, employees and agents.
4. COMPANY'S PROPERTY.
All notes, lists, reports, sketches, plans, data contained in computer
hardware or software, memoranda or other documents concerning or related to
Company's or affiliates' business which are or were created, developed,
generated or held by Executive during employment, whether containing or relating
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to Confidential Information (as defined in paragraph 14) or not, are the
property of Company and shall be promptly delivered to Company upon termination
of Executive's employment for any reason whatsoever. All notes, lists, reports,
sketches, plans, data contained in computer hardware or software, memoranda or
other documents concerning or related to Company's or affiliates' business which
are or were created, developed, generated or held by Executive during the Salary
Continuation Period, whether containing or relating to Confidential Information
(as defined in paragraph 14) or not, are the property of Company and shall be
promptly delivered to Company upon termination of the Salary Continuation
Period. During the course of employment and during the Salary Continuation
Period, Executive shall not remove any of the above property, including but not
limited to, Confidential Information, or reproductions or copies thereof, or any
apparatus containing any such property or Confidential Information, from
Company's premises without prior written authorization from Company, other than
in the normal execution of Executive's duties.
5. EXECUTIVE'S OBLIGATION NOT TO USE OR DISCLOSE CONFIDENTIAL INFORMATION.
Executive hereby acknowledges that, during the course of Executive's
employment and during the Salary Continuation Period, Executive will learn or
develop Confidential Information in trust and confidence. Executive agrees to
use the Confidential Information solely for the purpose of performing his duties
hereunder and not for his own private use or commercial purposes. Executive
acknowledges that unauthorized disclosure or use of Confidential Information,
other than in discharge of Executive's duties, will cause Company irreparable
harm.
Executive shall maintain Confidential Information in strict confidence
at all times and shall not divulge Confidential Information to any unauthorized
person or entity, or use in any manner, or knowingly allow another to use, any
Confidential Information, without Xxxxxx'x prior written consent, during the
term of employment, during the Salary Continuation Period or thereafter, for as
long as such Confidential Information remains confidential.
Executive further acknowledges that Company and its affiliates operate
and compete internationally and that Company and/or its affiliates will be
harmed by the unauthorized disclosure or use of Confidential Information
regardless of where such disclosure or use occurs, and that therefore this
confidentiality agreement is not limited to any single state or other
jurisdiction.
6. EXECUTIVE'S OBLIGATION NOT TO SOLICIT OR HIRE COMPANY'S EMPLOYEES AND AGENTS.
During the Restriction Period (as hereinafter defined), Executive shall
not, directly or indirectly, for himself or on behalf of any person, firm, or
other entity, solicit, induce or encourage any person to leave her/his
employment, agency or office with Company or any of its affiliates. During the
Restriction Period, Executive shall not, directly or indirectly, for himself or
on behalf of any person, firm or other entity, hire or retain or participate in
hiring or retaining any person who then is an employee of or agent for Company
or any person who has been an employee of or agent for the Company at any time
in the ninety (90) days prior to termination of Executive's employment, and, in
the event Executive is providing Consulting Services following termination of
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his employment, any person who has been an employee of or agent for the Company
at any time during the Salary Continuation Period, unless Xxxxxx is informed and
gives its approval prior to the hiring or retention. The term "Restriction
Period" means the period of time in which Executive is employed by Xxxxxx, the
Salary Continuation Period, if any, and a period of two (2) years thereafter.
7. NON-SOLICITATION OF CUSTOMERS.
Given Executive's office and his participation in the development,
sales, marketing and servicing of Company's Products, Systems and Services,
Executive acknowledges that Executive will learn or develop Confidential
Information relating to the development, sales, marketing or provision of
Company's Products, Systems and Services, and Company's customers and
prospective customers. Executive further acknowledges that Company's
relationships with its customers are extremely valuable to it, are generally the
result of substantial time and effort devoted by Company, and tend to be near
permanent. Therefore, during the Restriction Period, Executive shall not,
directly or indirectly, for himself or on behalf of any person, firm, or other
entity, solicit or sell, attempt to sell, or supervise, participate in, or
assist the sale or solicitation of Competitive Products and Systems (i) to any
person, firm or other entity to which Company sold any of Company's Products,
Systems or Services during the last two (2) years of Executive's employment
prior to the effective date of termination and (ii) in the event Executive is
providing Consulting Services following termination of his employment, to any
person, firm or other entity to which the Company sells any of Company's
Products, Systems or Services during the Salary Continuation Period. However,
this paragraph shall not prohibit the solicitation of any actual or potential
customer of Company which does not fall within the preceding description. This
paragraph is independent of the obligations of confidentiality under paragraph 5
hereof and the non-compete provisions of paragraph 8 below.
8. NON-COMPETITION PROVISIONS.
Executive expressly agrees that, during the Restriction Period, in the
United States, Canada, Mexico and the United Kingdom, he shall not, directly or
indirectly, as an owner, officer, director, employee, agent, advisor, financier,
or in any other form or capacity, on behalf of himself or any other person, firm
or other business entity, engage in or be concerned with any Competitive
Products, Systems and Services (defined in paragraph 14 below), or any other
business similar to that of Company, or any other duties or pursuits for
monetary gain which, in the sole judgment of Xxxxxx, interfere with or restrict
Executive's activities on behalf of Company or constitute competition with the
Company or its affiliates. The foregoing notwithstanding, nothing herein
contained shall be deemed to prevent Executive from investing his money in the
capital stock or other securities of any corporation whose stock or securities
are publicly-owned or are regularly traded on any public exchange, provided that
Executive does not own more than a one percent (1%) interest therein.
9. UNFAIR TRADE PRACTICES.
During the term of this Agreement and at all times thereafter,
Executive shall not, directly or indirectly, engage in or assist others in
engaging in any unfair trade practices with respect to Company.
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10. REMEDIES.
Executive acknowledges that failure to comply with the terms of this
Agreement will cause irreparable loss and damage to Company. Therefore,
Executive agrees that, in addition and cumulative to any other remedies at law
or equity available to Company for Executive's breach or threatened breach of
this Agreement, Company is entitled to specific performance or injunctive relief
against Executive to prevent such damage or breach, and a temporary restraining
order and preliminary injunction may be granted to Company for this purpose
immediately at its request upon commencement of any suit, without prior notice
and without posting any bond. The existence of any claim or cause of action
Executive may have against Company will not constitute a defense thereto.
11. SEVERABILITY.
If any of the restrictions in this Agreement is determined by a court
of competent jurisdiction to be excessively broad as to area or time or
otherwise, the parties authorize the court to reduce such restriction to the
extent necessary to make such restriction reasonable and to enforce such
restriction as so reduced. Any provisions of this Agreement not so reduced shall
remain in full force and effect.
12. ASSIGNMENT.
The terms and provisions of this Agreement shall be binding upon and
inure to the benefit of Xxxxxx, its successors and assigns and Executive and
Executive's heirs, executors, administrators and other legal representatives.
This Agreement is a personal service agreement and shall not be assignable by
Executive.
13. GOVERNING LAW.
This Agreement shall be interpreted and enforced in accordance with the
laws of the State of Illinois, without regard to its conflict of law principles.
Any action commenced to enforce or to determine any right or obligation
hereunder shall be commenced only in a federal or state court with jurisdiction
over Xxxx County, Illinois. Executive consents to personal jurisdiction in any
such court.
14. DEFINITIONS.
14.1 "COMPANY" shall mean Xxxxxx and any entity owned by Xxxxxx or
related to Xxxxxx, directly or indirectly, in whole or in part, now or at any
time during Executive's employment with Xxxxxx and during the Salary
Continuation Period, if any, including, but not limited to, Assembly Component
Systems, Inc., Cronatron Welding Systems, Inc., Xxxxxxxx American Corporation,
Automatic Screw Machine Products Company, X.X. Xxxx Company, Xxxxxx Products,
Inc. (Ontario), Xxxxxx Products de Mexico, Assembly Component Systems
Limited-UK, and any other entity in which any one or more of them has an
interest at any time during Executive's employment with Xxxxxx and during the
Salary Continuation Period, if any, whether such entity is in the United States
or elsewhere.
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14.2 "COMPETITIVE PRODUCTS, SYSTEMS AND SERVICES" shall mean products,
systems or services in existence or under development which are the same as or
substantially similar to or functional equivalents of those of Company
including, without limitation, those which are or may be provided to Company's
customers on behalf of Company by employees, agents, or sales representatives of
Company.
14.3 "CONFIDENTIAL INFORMATION" shall mean all information, including,
but not limited to, trade secrets disclosed to Executive or known by Executive
as a consequence of or through Executive's employment by Xxxxxx, or performance
of Consulting Services to Xxxxxx, concerning the products, services, systems,
customers and Agents of Company, and specifically including without limitation:
computer programs and software, unpatented inventions, discoveries or
improvements; marketing, organizational and product research and development;
marketing techniques; promotional programs; compensation and incentive programs;
customer loyalty programs; inventory systems; business plans; sales forecasts;
personnel information, including but not limited to the identity of employees
and Agents of Company, their responsibilities, competence, abilities, and
compensation; pricing and financial information; customer lists and information
on customers or their employees, or their needs and preferences for Company's
Products, Systems or Services; information concerning planned or pending
acquisitions or divestitures; and information concerning purchases of major
equipment or property, and which:
(a) has not been made generally available to the public; and
(b) is useful or of value to the current or anticipated
business or research or development activities of Company, or of any
customer or supplier of Company; and
(c) has been identified to Executive by Company as
confidential, either
orally or in writing.
Confidential Information shall not include information which:
(x) is in or hereafter enters the public domain through no
fault of Executive;
(y) is obtained by Executive from a third party having the
legal right to use and to disclose the same; or
(z) was in the possession of Executive prior to receipt from
Company (as evidenced by Executive's written records pre-dating the
first date of employment with Xxxxxx).
Confidential Information also does not include Executive's general skills and
experience as defined under the governing law of this Agreement.
14.4 "UNAUTHORIZED PERSON OR ENTITY" shall mean any individual or
entity who or which has not signed an appropriate secrecy or confidentiality
agreement with Company, or is not a current or target customer with whom
Confidential Information is shared in the mutual interest of that person or
entity and Company.
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15. MISCELLANEOUS PROVISIONS.
15.1 Covenants contained in this Agreement shall remain in force and
effect beyond the termination of Executive's employment.
15.2 During the term hereof and for four years following the effective
date of termination of employment for any reason, Executive shall give notice of
the existence and a copy of this Agreement to any prospective employer or
business relation.
15.3 The paragraph headings set forth in this Agreement are for
convenience of reference only and shall not affect the interpretation or meaning
of any provision hereof.
16. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between Company and
Executive with respect to the subject matter hereof and supersedes all previous
communications and agreements between Xxxxxx, including its predecessor, and
Executive regarding the subject matter hereof. It may not be changed or modified
except by written instrument signed by Xxxxxx'x Chief Executive Officer and
Executive.
17. EXECUTIVE'S ACKNOWLEDGMENT AND REPRESENTATIONS.
Executive acknowledges and agrees that the services to be rendered by
him to Company are of extraordinary merit and constitute a necessary and
valuable contribution to the general growth and development of Company that
result from Executive's unique personal talent and expertise. In return for the
consideration described in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
as a condition precedent to Company entering into this Agreement, and as an
inducement to Xxxxxx to do so, Executive hereby represents, warrants, and
covenants as follows:
17.1 Executive has executed and delivered this Agreement as his free
and voluntary act, after having determined that the provisions contained herein
are of a material benefit to him, and that the duties and obligations imposed on
him hereunder are fair and reasonable and will not prevent him from earning a
livelihood following the termination of his employment with Company.
17.2 Executive has read and fully understands the terms and conditions
set forth herein, has had time to reflect on and consider the benefits and
consequences of entering into this Agreement, acknowledges that any reference in
this Agreement to Company applies also to any and all subsidiaries and
affiliates of Company as defined in paragraph 14, and has had the opportunity to
review the terms hereof with an attorney or other representatives, if he chose
to do so.
17.3 The execution and delivery of this Agreement by Executive does not
conflict with, or result in a breach of, or constitute a default under, any
agreement or contract, whether oral or written, to which Executive is a party or
by which Executive may be bound.
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IN WITNESS WHEREOF, the parties have executed this Agreement at Des
Plaines, Illinois, as of the date first written above.
EXECUTIVE: XXXXXX PRODUCTS, INC.
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- ----------------------------------
Xxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
Chief Executive Officer
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