EXHIBIT 10.1.1
EMPLOYMENT AGREEMENT
This Agreement, made and dated as of January 2, 2003 (the "Effective
Date"), by and between Starcraft Corporation, an Indiana corporation
("Employer"), and Xxxxxxx X. Xxxxxxxxxx, a resident of Elkhart County, Indiana
("Employee").
W I T N E S S E T H
WHEREAS, Employer desires to employ Employee as its President and Chief
Operating Officer, for itself and each of its subsidiaries ("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
from 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 obtain
control of Employer;
WHEREAS, Employer recognizes that when faced with a proposal for a change
of control of Employer, Employee will have a significant role in helping the
Board of Directors assess the options and advising the Board of Directors on
what is in the best interests of Employer and its shareholders, and it is
necessary for Employee to be able to provide this advice and counsel without
being influenced by the uncertainties of his own situation;
WHEREAS, Employer desires to provide fair and reasonable benefits to
Employee on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Employer desires reasonable protection of its confidential
business and customer information which it has developed over the years at
substantial expense and assurance that Employee will not compete with Employer
for a reasonable period of time after termination of his employment with
Employer, except as otherwise provided herein.
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, and Employee accepts such employment.
2. Employee agrees to serve as President and Chief Operating Officer for
Employer and each of its subsidiaries in connection with the Job
Responsibilities and to perform such Job Responsibilities in that office as may
reasonably be assigned to him by Employer's Board of Directors; provided,
however that such duties shall be performed in or from the offices of Employer
currently located at Goshen, Indiana, and shall be of the same character as
those previously performed by Employee and generally associated with the office
held by Employee. Employee shall not be required to be absent from the location
of the principal executive offices of Employer on travel status or otherwise
more than 45 days in any calendar year. Employer shall not, without the written
consent of Employee, relocate or transfer Employee to a location more than 30
miles from his principal residence. Employee shall perform Job Responsibilities
for Employer as President and Chief Operating Officer for Employer and each of
its subsidiaries in substantially the same manner and to substantially the same
extent as Employee rendered his services to Employer before the date hereof.
Although while employed by Employer, Employee shall devote substantially all his
business time and efforts to Employer's business, Employee may use his
discretion in fixing his hours and schedule of work consistent with the proper
discharge of his duties.
3. The term of this Agreement shall begin on the "Effective Date" and shall
end on the date which is one (1) year following such date (the "Anniversary
Date"); provided, however, that such term shall be extended for additional one
(1) 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 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"), provided, however, that such notice not to extend
the Term of this Agreement by either party shall be a termination of employment
prior to expiration of the Term of this Agreement for all purposes of this
Agreement, including section 7 and section 8 hereof. Such notice not to extend
the Term of this Agreement 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 on the Anniversary Date or otherwise.
4. Employee shall receive an annual salary of Three Hundred Thousand
Dollars ($300,000.00) ("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 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.
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 and
his position as President of Employer and Chief Operating Officer of Employer
and its subsidiaries, including, without limitation, Employer's 401(k) plan,
stock incentive plan, Executive Bonus Plan, 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, unless prior to
a Change of Control the operating results of Employer are significantly less
favorable than those for the last fiscal year, and unless either before or after
a Change of Control changes in the accounting or tax treatment of such plans
would adversely affect Employer's operating results or financial condition in a
material way, and the Board of Directors of Employer concludes that
modifications to such plans need to be made to avoid such adverse effects, and
such modifications similarly affect all other senior executive officers of
Employer.
6. 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
office space and 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 continue to pay for
membership in the Elcona Country Club, and Employer shall continue to pay the
dues and assessments for such membership.
7. Subject to the respective continuing obligations of the parties,
including but not limited to those set forth in subsections 8(A), 8(B), 8(C) and
8(D) 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, 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 cause. For purposes of this subsection 7(A), "cause" shall be
defined as (i) willful misconduct, (ii) breach of fiduciary duty
involving personal profit, (iii) intentional failure to perform stated
duties, (iv) conviction of a violation of any law, rule, or regulation
(other than traffic violations or similar offenses) or final
cease-and-desist order, or (v) any material breach of any term,
condition or covenant of this Agreement.
(B) Employer, by action of its Board of Directors, and upon written notice
to Employee, may fail to renew this Agreement effective any
Anniversary Date, or may terminate Employee's employment with Employer
at any time without cause.
(C) Employee, by written notice to Employer, may terminate his employment
with Employer at any time for cause. For purposes of this subsection
7(C), "cause" shall be defined as (i) any action by Employer's Board
of Directors to remove the Employee as President of Employer and Chief
Operating Officer of Employer and its subsidiaries, except where the
Employer's Board of Directors properly acts to remove Employee from
such office for "cause" as defined in subsection 7(A) hereof, (ii) any
action by Employer's Board of Directors to materially limit, or
materially increase or decrease or modify Employee's Job
Responsibilities and/or authority as President of Employer and as
Chief Operating Officer of Employer and its subsidiaries (including
his authority, subject to corporate controls no more restrictive than
those in effect on the date hereof, to hire and discharge employees
who are not bona fide officers of Employer), (iii) any failure of
Employer to obtain the assumption of the obligation to perform this
Agreement by any successor, assignee, or distributee of all or
substantially all of Employer's assets (on a consolidated basis with
those of its subsidiaries), or the reaffirmation of such obligation by
such successor, assignee, or distributee, as contemplated in section
16 hereof; (iv) any material breach by Employer of a term, condition
or covenant of this Agreement; (v) adoption or approval of a plan of
liquidation, dissolution, or reorganization for Employer or its
subsidiaries by the Employer's Board of Directors; or (vi) a Change of
Control.
For purposes of this Agreement, a "Change of Control" of Employer
shall be deemed to have occurred if during, or following the
consummation of, a stock purchase program, tender offer, exchange
offer, merger, consolidation, sale of substantially all of Employer's
assets, contested election, or any combination of the foregoing
transactions, any person, entity or group of persons acting in concert
(other than the Employee), directly or indirectly (1) acquires the
power to vote in excess of twenty-five percent (25%) of the voting
securities of Employer and one or more of its representatives are
elected to the Board, (2) acquires ownership of the power to vote in
excess of 50% of the voting securities of Employer, or (3) otherwise
acquires effective control of the business and affairs of Employer;
provided, however, that (4) a Change of Control shall not be deemed to
occur as a result of any existing or future acquisition of shares of
Employer capital stock by Employee, or Xxxxx X. Xxxx and/or Xxxxx Xxxx
or by any trust(s) or voting trust(s) of Employee, Xxxxx X. Xxxx,
and/or Xxxxx Xxxx, to which any of their Employer capital stock is
transferred, and further provided, that (5) a Change of Control shall
not be deemed to occur so long as and during that period after an
event which would otherwise be a Change of Control, during which
period Xxxxx X. Xxxx remains as Chairman of the Board and Chief
Executive Officer of Employer, but, it shall be a Change of Control if
any of the events discussed in (1), (2) or (3) next above occurs, and
Xxxxx X. Xxxx thereafter leaves the employment of Employer.
(D) Except as otherwise provided in section 3 regarding nonrenewal on any
Anniversary Date, and in addition thereto, Employee, at any time and
upon sixty (60) days written notice to Employer, may terminate his
employment with Employer without cause.
(E) Employee's employment with Employer shall terminate in the event of
Employee's death or disability. For purposes hereof, "disability"
shall be defined as Employee's inability by reason of illness or other
physical or mental incapacity to perform the duties required by his
employment for any consecutive one hundred eighty (180) day period,
provided that notice of any 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 or in subsection 7(B) hereof,
written notice 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 cause by Employer or without cause by
Employee pursuant to subsection 7(A) or 7(D), respectively,
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 in which such notice is
provided to Employee.
(B) In the event of termination without cause by Employer or with cause by
Employee pursuant to subsection 7(B) or 7(C), respectively,
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 be
entitled to continue to receive from Employer his Base Compensation at
the rates in effect at the time of termination for one (1) additional
twelve (12) month period, provided, however in the event that
termination pursuant to subsection 7(B) or 7(C) follows a Change of
Control, then the additional period referred to herein as "one (1)
additional twelve (12) month period" shall rather be "three (3)
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 dependents each Benefit Plan 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,
provided, however, that in the event that Employee shall be entitled
to receive from Employer his Base Compensation at the rates in effect
at the time of termination for three (3) additional twelve (12) month
periods, then Employee at his option may elect to receive such Base
Compensation for such three (3) 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 dependents. If the terms of any Benefit Plan, or applicable laws,
do not permit continued participation by Employee, Employer will
arrange to provide to Employee a benefit substantially similar to, and
no less favorable than, the benefit he was entitled to receive under
such Benefit Plans at the end of the period of coverage. The right of
Employee to continued coverage under the health and medical insurance
plans of Employer shall commence upon the expiration of such period.
(C) In the event of termination of Employee's employment due to death or
disability pursuant to subsection 7(E), 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, as follows.
In the event Employee's employment with Employer shall terminate in
the event of Employee's death, compensation provided for herein
(including Base Compensation) shall continue to be paid from and after
the date of Employee's death. The spouse (or if none surviving, the
dependants of Employee) shall be entitled to continue to receive from
Employer the Employee's Base Compensation at the rates in effect at
the time of termination for one (1) additional twelve (12) month
period. In addition, during such period, Employer will maintain in
full force and effect for the continued benefit of the spouse of
Employee (or if none surviving, the dependants of Employee) each
Benefit Plan in which they were 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 (or if none surviving, the
dependants 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 dependants of Employee), Employer will
arrange to provide to spouse of Employee (or if none surviving, the
dependants of Employee) a benefit substantially similar to, and no
less favorable than, the benefit the spouse of Employee (or if none
surviving, the dependants 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.
In the event Employee's employment with Employer shall terminate in
the event of Employee's disability, compensation provided for herein
(including Base Compensation) shall continue to be paid 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 at the rates in effect
at the time of termination for one (1) additional twelve (12) month
period. In addition, during such periods, Employer will maintain in
full force and effect for the continued benefit of Employee 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, Employer will
arrange to provide Employee a benefit substantially similar to, and no
less favorable than, the benefit Employee was entitled to receive
under such Benefit Plans at the date of disability 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) Employer will permit Employee or his personal representative(s) or
heirs, as the case may be, during a period of three (3) months
following termination of Employee's employment by Employer without
cause as set forth in subsection 7(B), or Employee's termination of
his employment with Employer for cause as set forth in subsection
7(C), or death or disability of Employee as set forth in subsection
7(E), to require Employer, upon written request and at Employee's or
his personal representative's or heirs' option to purchase all or less
than all of outstanding stock options previously granted to Employee
under any Employer stock option plan then in effect whether or not
such 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 exceeds the aggregate
option price for such shares. For purposes of this Agreement, the term
"fair market value" shall mean the higher of (1) 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 (2) 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.
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. CODEss. 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, cargo haulers, upfit
customization and specialized packages through its ownership interest
in Tecstar, LLC), 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 subsections 7(A), 7(B), 7(C), 7(D) or 7(E), 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 and noncompetition covenants of section 9 hereof and shall be
payable whether or not deductible by the Employer for federal income tax
purposes.
12. If a dispute arises regarding the grounds for termination of Employee
pursuant to 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 and noncompetition 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. The prevailing party shall be
entitled to its costs, expenses and reasonable attorney's fees.
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 delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to Employee: Xxxxxxx X. Xxxxxxxxxx
00000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
If to Employer: Starcraft Corporation
0000 Xxxxxxx Xxxxxx
Post Office Box 1903
Goshen, IN 46529
Attention: Xxxxx X. Xxxx, Chairman of the Board and
Chief Executive Officer
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 subsidiaries' assets or
business ("Succession") (whether direct or indirect, by purchase, merger,
dissolution, liquidation, consolidation or otherwise, and whether or not it is a
Change of Control) 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. Failure of Employer to obtain such agreement prior to the
effectiveness of any such Succession shall be a material intentional breach of
this Agreement and shall entitle Employee to terminate his employment with
Employer pursuant to subsection 7(C) hereof. As used in this Agreement,
"Employer" shall mean Employer and its subsidiaries 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.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed
and delivered this 2nd day of January, 2003.
"Employee" "Employer"
STARCRAFT CORPORATION
/s/ Xxxxxxx X. Schoefferl By: /s/ Xxxxx X. Xxxx
------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxxxxx Xxxxx X. Xxxx
Chief Executive Officer
EXHIBIT A
In Japan, Europe, Mexico, Canada, and any of the 48 contiguous States of
the United States of America; it being acknowledged by Employee that the Company
conducts business in all such States, and also it is acknowledged by Employee
that the Company presently conducts a substantial amount of its business in any
and all of the States.
