EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of December 1, 1999, by and between Summa Industries, a Delaware corporation
(the "Company" or "Employer"), and Mr. Paul A. Walbrun, an individual residing
in the State of California ("Executive").
WHEREAS, the Company desires to retain the services of Executive as
Vice President and Controller of the Company, and Executive is willing to
continue to provide such services so long as the terms and conditions contained
herein apply to Executive's employment; and
WHEREAS, the Company and Executive acknowledge that, except as
specifically set forth herein, Executive will continue to be an "at will"
employee of the Company.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants of the parties contained herein, the parties hereto agree as
follows:
1. TERM. This Agreement shall continue in full force and effect
for a period which shall commence as of the date indicated above and shall
continue until Executive's employment with the Company is terminated.
Executive's employment hereunder may be terminated by the Company at any
time, with or without cause. Executive acknowledges that, except as
specifically set forth herein, Executive is an at will employee of the
Company.
2. EMPLOYMENT. Executive shall serve as Vice President and
Controller, subject to the direction of the Company's Chief Executive Officer
and the Board of Directors. Executive shall devote such of his working time
and effort to the business and affairs of the Company as may reasonably be
required of him in the discharge of the duties and responsibilities of such
office, but no less than 40 hours per week on average. Executive shall at all
times perform his duties and obligations faithfully and diligently and to the
best of Executive's ability.
3. COMPENSATION. During the term of this Agreement, and any
continuance hereof, as compensation for the services to be rendered and the
other obligations undertaken by Executive hereunder, Executive shall be
entitled to receive salary and annual bonuses as shall be determined from
time to time by the Company's Board of Directors.
4. EXPENSES. During the term hereof, Executive shall be entitled
to receive prompt reimbursement of all reasonable expenses incurred by
Executive (in accordance with the policies and procedures from time to time
adopted by the Board of Directors of the Company for its senior executive
officers) in performing the services contemplated hereunder, provided that
Executive properly accounts therefor in accordance with Company policy. In
addition, Executive will be granted use of a Company automobile.
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5. BENEFITS AND VACATIONS.
(a) Executive shall be entitled to participate in or receive
benefits under the life, health and disability insurance plans or
arrangements of an operating subsidiary of the Company as in effect on the
date hereof for such period of time as such plans and arrangements shall
remain in effect. In addition, Executive shall be entitled to participate in
or receive benefits under any pension plan, profit-sharing plan, life
insurance, health-and-accident plan or arrangement made available in the
future by the Company or its subsidiaries to its executives and key
management employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements. Nothing
paid to Executive under any such plan or arrangement presently in effect or
made available in the future shall be deemed to be in lieu of any
compensation payable to Executive hereunder.
(b) Executive shall be entitled to the number of paid vacation
days in each calendar year, and to compensation for earned but unused
vacation days, determined by the Company or its subsidiaries from time to
time for its executives and key management employees. Executive shall also be
entitled to all paid holidays given by the Company or its subsidiaries to its
executives and key management employees.
6. CHANGE IN CONTROL. Notwithstanding any provision in this
Agreement to the contrary, the provisions of this Paragraph 6 shall control,
to the exclusion of any other provision of this Agreement, in the event that
there has been a "Change in Control" of Employer, as defined hereafter. In
such event, regardless of whether or not Executive's employment is terminated
as a result of such event, Executive shall be entitled to promptly receive,
and the Company will be obligated to promptly pay to Executive as a special
bonus, an amount equal to one (1) years' salary and bonus at the level then
being paid to Executive pursuant to Paragraph 3 above. For the purposes of
this agreement, "Change in Control" means:
(i) the acquisition by a person or a group of related persons,
other than the Company or a person controlling, controlled by or under common
control with the Company, of beneficial ownership (as determined pursuant to the
provisions of Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of securities possessing (whether immediately or upon subsequent conversion or
exercise) thirty percent (30%) or more of the total voting power of the
Company's outstanding securities, or
(ii) the acquisition by a person or a group of related
persons, other than the Company or a person controlling, controlled by or under
common control with the Company, of beneficial ownership (as determined pursuant
to the provisions of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of securities possessing (whether immediately or upon subsequent
conversion or exercise) the right to elect a majority of the Company's Board of
Directors, or
(iii) the sale, transfer or other disposition (other than in
the ordinary course) of substantially all of the Company's assets, or
(iv) the first date within any period of thirty-six (36)
consecutive months or less on which there is effected a change in the
composition of the Company's Board of Directors such that a
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majority of the Board (determined by rounding up to the next whole number)
ceases to be comprised of individuals who either (I) have been members of the
Company's Board continuously since the beginning of such period or (II) have
been elected or nominated for election as Board members during such period by
at least a majority of the Board members described in clause (I) who were
still in office at the time such election or nomination was approved by the
Board.
7. PROPRIETARY INFORMATION. Executive acknowledges that certain
technological and other information may from time to time be disclosed to
Executive by the Company during the continuance hereof. Executive hereby
acknowledges that all such information and technology, whether currently
existing or hereafter developed by the Company through or involving the
services and efforts of Executive hereunder, shall at all times consist of
and be preserved by Executive as valuable trade secrets and confidential
information which is proprietary to and owned exclusively by the Company, and
that Executive does not have, and shall not have or hereafter acquire, any
rights in or to any of such information and technology, including without
limitation any patents, inventions, discoveries, know-how, trademarks or
trade names used or adopted by the Company in connection with the design,
development, manufacture, marketing, sale or installation of any products
which at any time during the continuation hereof may be offered and sold or
licensed by the Company. Executive further warrants and agrees that he shall
not at any time, whether during the continuance of this Agreement or after
its expiration or earlier termination, whether by Executive or by the
Company, in any manner or form, directly or indirectly, use, disclose,
duplicate, license, sell, reveal, divulge, publish or communicate any portion
of any such information or technology, nor use, disclose duplicate, license,
sell, reveal, divulge, publish or communicate any other confidential
information concerning the Company, or any customers or other products of the
Company, to any person, firm or entity.
8. COMPETITION. Prior to termination of this Agreement, Executive
shall not, without the Company's prior written consent, directly or
indirectly engage in any business activity, or have any interest in any
person, firm or other entity engaged in any business activity, in which the
Company at the time is engaged or to the knowledge of Executive, is planning
to engage. During the term hereof and for a period of two (2) years
thereafter, Executive shall not directly or indirectly: (a) divert or take
away or solicit or attempt to divert or take away any of the Company's
customers, including without limitation those customers with whom Executive
became acquainted while retained by the Company; (b) employ, or knowingly
permit any business entity controlled by Executive to employ, any person who
during the period of twelve (12) months immediately preceding such time has
been employed by the Company; (c) solicit or otherwise seek to induce any
employee of the Company to leave his or her employment with the Company; or
(d) undertake planning for or organization of any business activity that will
injure the Company's business, or conspire with employees of the Company for
the purpose of organizing any such injurious business activity.
9. GENERAL PROVISIONS.
(a) Any notice, request, demand or other communication required
or permitted hereunder shall be deemed to be properly given when personally
served in writing, three (3) days after being deposited in the United States
mail, properly addressed and postage prepaid, or one (1) day after being sent
by reputable overnight carrier (Federal Express, UPS, Airborne), addressed to
the Company or
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Executive at their respective last known address. Either party may change its
address by written notice given in accordance with this subparagraph.
(b) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective executors, administrators,
successors and assigns; provided, however, that Executive may not assign any
or all of Executive's rights or duties hereunder without the prior written
consent of the Company.
(c) This Agreement is made and entered into, is to be performed
primarily within, and shall be governed by and construed in all respects in
accordance with the internal laws of the State of California.
(d) Captions and paragraph headings used herein are for
convenience only and are not a part of this Agreement and shall not be used
in construing it.
(e) Should any provision of this Agreement for any reason be
declared invalid, void, or unenforceable by a court of competent
jurisdiction, the validity and binding effect of any remaining portions of
such provision shall not be affected, and all other portions of this
Agreement shall remain in full force and effect.
(f) This Agreement contains the entire agreement of the
parties, and supersedes any and all other agreements, either oral or in
writing, between the parties hereto with respect to the retention of
Executive by the Company. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are
not embodied herein, and that no other agreement, statement or promise not
contained herein shall be relied upon or be valid or binding. This Agreement
may not be modified or amended by oral agreements, but only by an agreement
in writing signed by the Company on the one hand, and by Executive on the
other hand.
(g) In the event of any litigation between Executive and the
Company concerning the rights or obligations of any party under this
Agreement, the non-prevailing party shall pay the reasonable costs and
expenses, including attorneys' fees, of the prevailing party in connection
therewith.
(h) The Company shall indemnify Executive to the fullest extent
permitted by applicable law with respect to any claims arising from the
performance by Executive of his duties hereunder during the term of this
Agreement.
(i) The obligations under paragraphs 7, 8 and 9(h) hereof shall
survive the termination of this Agreement for the time periods specified
therein, or, if no period is specified, for an unlimited period of time.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
"Company" "Executive"
SUMMA INDUSTRIES, /s/ Paul A. Walbrun
a Delaware corporation ------------------------------------
Paul A. Walbrun
By: /s/ Trygve M. Thoresen
-------------------------------
Vice President
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