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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of November 1, 1989, between Kerr Glass
Manufacturing Corporation, a Delaware corporation (the "Company") and Geoffrey
A. Whynot (the "Employee").
1. Employment. The Company hereby employs the Employee and the
Employee hereby accepts employment upon the terms and conditions hereinafter
set forth.
2. Term. (a) The Agreement shall commence and take effect on the
date hereof, and end on the date this Agreement is terminated by either the
Company or the Employee as hereinafter provided in this Paragraph 2.
(b) The Company may at its election terminate the obligations of the
Company under this Agreement as follows:
(1) If the Employer becomes ill or is injured so that he is
unable to perform the services required of him hereunder and such inability to
perform continues for a period in excess of 180 consecutive days and such
inability is continuing at the time of such notice, then the Company may
terminate its obligations hereunder on 30 days' notice provided that the
Employee shall receive disability payments to which such Employee is then
entitled under the Company's group disability benefits then in effect during
the period commencing on the date of such termination and ending on the
date such disability ends or age 65, whichever first occurs.
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(2) For just cause upon notice of such termination to the
Employee. Termination of the Employee's employment by the Company shall
constitute a termination "for just cause" only if such termination is for one
or more of the following reasons: (i) the failure of the Employee to render
services to the Company in accordance with his obligations under this
Agreement, which failure amounts to an extended and gross neglect of his duties
to the Company; (ii) the continued use of drugs by the Employee to an extent
that he is unable to fulfill his duties under this Agreement; and (iii) the
commission by the Employee of an act of fraud or embezzlement against the
Company or the Employee's having been convicted of a felony involving moral
turpitude.
(3) Without cause upon notice to the Employee provided that for
a period of six months after such termination the Company shall (i) pay to
Employee an amount each month equal to the Salary which Employee is being paid
each month at the date of the notice of termination and (ii) provide for
Employee the same fringe benefits, consisting of medical, dental, life and
disability insurance, which were provided to Employee at the date of the notice
of termination. Notwithstanding anything in this Paragraph 2(b)(3) to the
contrary, the Salary to be paid to Employee shall be reduced by any amounts
paid to Employee for the performance of services for anyone other than the
Company during the period after
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termination by the Company and while the Company is required to continue to pay
the Employee as herein provided, but the Employee shall not be obligated to
seek the opportunity to perform such services, and the Company shall not be
obligated to provide any such fringe benefit after Employee shall receive such
fringe benefit at least as favorable to Employee from another employer. If
the Company may elect, in accordance with Paragraph 2(b)(1) hereof, to
terminate this Agreement then such election shall be deemed to have been made
under Paragraph 2(b)(1) and not in accordance with this Paragraph 2(b)(3).
(c) Employee may terminate his obligations under Paragraphs 4
and 5 hereof upon 90 days' prior notice thereof to the Company and, from and
after the delivery of such notice, the Company shall have no further
obligations under this Agreement unless it shall elect, by notice to the
Employee, to continue to pay the Employee as herein provided for the 90-day
period commencing with the date of delivery of the notice and in such event the
Employee shall continue to perform his obligations under Paragraphs 4 and 5
during such period.
3. Compensation. The Company shall pay the Employee a salary
("Salary") at the rate of $7,000.00 per month during each month of the term
hereof, payable in equal semi-monthly installments.
In addition to the foregoing, the Employee shall be eligible for and
participate in such fringe benefits as are
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generally available to executives of the Company and shall be entitled to
receive such increases in Salary as the Company may from time to time deem
appropriate.
4. Duties. The Employee shall be an executive of the Company, and
initially shall be Assistant Vice President and Controller, General Accounting
and External Reporting of the Company, and hereby promises to perform and
discharge well and faithfully the duties which may be assigned to him from time
to time by the Company in connection with the conduct of its business.
Election or appointment as a director or officer of the Company or any
subsidiary thereof during the term of this Agreement will not be a basis for
the Employee to receive additional compensation.
5. Extent of Services. The Employer shall devote his entire time,
attention and energies to the business of the Company and shall not during the
term of this Agreement be engaged in any other business activity whether or not
such business activity is pursued for gain, profit or other pecuniary
advantage; but this shall not be construed as preventing the Employee from
investing his personal assets in businesses which do not compete with the
Company in such form or manner as will not require any services on the part of
the Employee in the operation of the affairs of the companies in which such
investments are made and in which his participation is solely that of an
investor, and except that the Employee may
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purchase securities in any corporation whose securities are regularly traded
provided that such purchase shall not result in his owning beneficially at any
time one percent (1%) or more of the equity securities of any corporation
engaged in a business competitive with that of the Company.
6. Disclosure of Information. The Employee recognizes and
acknowledges that the Company's trade secrets, know-how and proprietary
processes as they may exist from time to time are valuable, special and unique
assets of the Company's business, access to and knowledge of which are
essential to the performance of the Employee's duties hereunder. The Employee
will not, during or after the term of his employment by the Company, in whole
or in part, disclose such secrets, know-how or processes to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever,
nor shall the Employee make use of any such property for his own purposes or
for the benefit of any person, firm, corporation or other entity (except the
Company) under any circumstances during or after the term of his employment,
provided that after the term of his employment these restrictions shall not
apply to such secrets, know-how and processes which are then in the public
domain (provided that the Employee was not responsible, directly or indirectly,
for such secrets, know-how or processes entering the public domain without the
Company's consent).
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7. Inventions. The Employee hereby sells, transfers and assigns to
the Company or to any person or entity designated by the Company all of the
entire right, title and interest of the Employee in and to all inventions,
ideas, disclosures and improvements, whether patented or unpatented, and
copyrightable material, made or conceived by the Employee, solely or jointly,
during the term hereof which relate to methods, apparatus, designs, products,
processes or devices, sold, leased, used or under construction or development
by the Company or any subsidiary, or which otherwise relate to or pertain to
the business, functions or operations of the Company or any subsidiary, or
which arise from the efforts of the Employee during the course of his
employment for the Company. The Employee shall communicate promptly and
disclose to the Company, in such form as the Company requests, all information,
details and data pertaining to the aforementioned inventions, ideas,
disclosures and improvements; and the Employee shall execute and deliver to the
Company such formal transfers and assignments and such other papers and
documents as may be required of the Employee to permit the Company or any
person or entity designated by the Company to file and prosecute the patent
applications and, as to copyrightable material, to obtain copyright thereof.
Any invention relating to the business of the Company or any subsidiary and
disclosed by the Employee within one (1) year following the termination of this
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Agreement shall be deemed to fall within the provisions of this paragraph
unless proved to have been first conceived and made following such termination.
8. Injunctive Relief. If there is a breach or threatened breach of
the provisions of Paragraphs 6 or 7 of this Agreement, the Company shall be
entitled to an injunction restraining the Employee from such breach. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies for such breach or threatened breach.
9. Insurance. The Company may, at its election and for its benefit,
insure the Employee against accidental loss or death and the Employee shall
submit to such physical examinations and supply such information as may be
required in connection therewith.
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered mail to
his residence in the case of the Employee or to the Company at 1840 Century
Park East, Los Angeles, California 90067, Attention: President, or to such
officer or address as the Company shall notify Employee.
11. Waiver of Breach. A waiver by the Company or Employee of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
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12. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware.
13. Entire Agreement. This instrument contains the entire agreement
of the parties. It may be changed only by an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification,
extension or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day first hereinabove written.
KERR GLASS MANUFACTURING CORPORATION
By: /s/ D. GORDON STRICKLAND
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President
/s/ GEOFFREY A. WHYNOT
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Geoffrey A. Whynot
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AMENDMENT TO
EMPLOYMENT AGREEMENT
WHEREAS, Kerr Group, Inc. (the "Company") and Geoffrey A. Whynot (the
"Employee") have entered into an Employment Agreement, dated as of November 1,
1989 and amended as of November 17, 1995 (the "Employment Agreement"); and
WHEREAS, pursuant to Paragraph 13 of the Employment Agreement, the
Company and the Employee have agreed to amend the Employment Agreement.
NOW, THEREFORE, effective as of the date written below, the Employment
Agreement is amended as follows:
1. The second sentence of Paragraph 2(b)(3) shall be deleted and replaced
with:
Notwithstanding anything in this Paragraph 2(b)(3) to the
contrary, the Salary to be paid to Employee upon termination of
employment pursuant hereto shall not be reduced by any amounts
paid to Employee on account of any compensation received by
Employee from other employment. Furthermore, the Company shall
not be obligated to provide any such fringe benefit after Employee
shall receive such fringe benefit at least as favorable to Employee
from another employer.
IN WITNESS WHEREOF, the parties have executed this Amendment on the 2nd day of
January, 1996.
KERR GROUP, INC.
By: /s/ D. GORDON STRICKLAND
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President
/s/ GEOFFREY A. WHYNOT
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Geoffrey A. Whynot