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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of August 7, 2000, by and between Summa Industries, a Delaware corporation (the
"Company" or "Employer"), and Mr. Trygve M. Thoresen, an individual residing in
the State of California ("Executive").
WHEREAS, the Company desires to retain the services of Executive as
Vice President of Business Development, General Counsel and Secretary of the
Company, and Executive is willing 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 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 of Business
Development, General Counsel and Secretary, 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
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(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 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.
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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 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.
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(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.
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/ Trygve M. Thoresen
a Delaware corporation -----------------------------------
Trygve M. Thoresen
By: /s/ James R. Swartwout
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James R. Swartwout, President
