AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT NO. 1, dated as of May 1, 1999 (the "Amendment"), to Employment
Agreement dated as of March 1, 1999 (the "Employment Agreement"), between
ImageMax, Inc., a Pennsylvania corporation (the "Company") and Xxxx X. Xxxxxxxx,
a resident of Pennsylvania (the "Employee"); all capitalized terms not defined
herein shall have the meaning set forth in the Employment Agreement.
WHEREAS, the Company desired to employ Employee and Employee desired to be
employed by the Company upon the terms and conditions set forth in the
Employment Agreement; and
WHEREAS, the Company and the Employee desire to amend certain terms and
conditions of the Employment Agreement as further set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and intending to be legally bound, the parties, subject to the
terms and conditions set forth herein, agree as follows:
SECTION 1. Amendment to Section 1. Section 1 of the Employment Agreement is
amended and restated in its entirety as follows:
"1. Employment and Term. The Company hereby employs Employee and
Employee hereby accepts employment with the Company, as Chief Financial Officer
(such position, Employee's "Position") for a period commencing on the date
hereof and continuing until March 1, 2001, subject to the provisions of Section
9 hereof (as may be extended from time to time by mutual consent of Employer and
Employee, the "Term")."
SECTION 2. Amendment to Section 4. Section 4 of the Employment Agreement is
amended by replacing the first two sentences thereof with the following:
"The Company shall pay Employee, and Employee hereby agrees to accept,
as compensation for all services rendered hereunder and for Employee's covenant
not to compete as provided for in Section 8 hereof, an initial base salary at
the annual rate of One Hundred Five Thousand Dollars ($105,000) (as the same may
hereafter be increased, the "Base Salary") which shall continue as such for the
remainder of the Term unless otherwise increased pursuant to this Section 4 of
this Agreement."
SECTION 3. Employment Agreement as Amended. The terms "Agreement" and
"Employment Agreement" as used in the Employment Agreement shall be deemed to
refer to the Employment Agreement as amended hereby. This Amendment shall be
effective as of the date hereof and, except as set forth herein, the Employment
Agreement shall remain in full force and effect and be otherwise unaffected
hereby.
SECTION 4. Benefits of this Amendment. Nothing in this Amendment shall be
construed to give to any Person other than the Company and Employee any legal or
equitable right, remedy or claim under this Amendment; but this Amendment shall
be for the sole and exclusive benefit of the Company and the Employee.
SECTION 5. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Pennsylvania
applicable to contracts executed in and to be performed entirely in such state.
SECTION 6. Counterparts. This Amendment may be executed (including by
facsimile) in one or more counterparts and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same
instrument.
SECTION 7. Descriptive Headings. The headings contained in this Amendment
are for descriptive purposes only and shall not affect in any way the meaning or
interpretation of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the date first above written.
IMAGEMAX, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx, Acting Chief
Executive Officer
/s/ Xxxx X. Xxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxx
2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 1st day of March, 1999 by and
between Xxxx X. Xxxxxxxx, a resident of Pennsylvania (the "Employee"), and
ImageMax Inc., a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania (the "Company").
WHEREAS, the Company desires to employ Employee and Employee desires to be
employed by the Company for a period of time in the future upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and intending to be legally bound, the parties, subject to the
terms and conditions set forth herein, agree as follows:
1. Employment and Term. The Company hereby employs Employee and Employee
hereby accepts employment with the Company, as Chief Administrative and
Accounting Officer (such position, Employee's "Position") for a period
commencing on the date hereof and continuing until March 1, 2001, subject to the
provisions of Section 9 hereof (as may be extended from time to time by mutual
consent of Employer and Employee, the "Term").
2. Duties. During the Term, Employee shall serve the Company faithfully and
to the best of his ability and shall devote his full time, attention, skill and
efforts to the performance of the duties required by or appropriate for his
Position. Employee agrees to assume such duties and responsi bilities as may be
customarily incident to such position.
3. Other Business Activities. During the Term, Employee will not, without
the prior written consent of the Company, directly or indirectly engage in any
other business activities or pursuits whatsoever, except activities in
connection with any charitable or civic activities, personal
investments and serving as an executor, trustee or in other similar fiduciary
capacity; provided, however, that such activities do not interfere with his
performance of his responsibilities and obligations pursuant to this Agreement.
4. Compensation. The Company shall pay Employee, and Employee hereby agrees
to accept, as compensation for all services rendered hereunder and for
Employee's covenant not to compete as provided for in Section 8 hereof, an
initial base salary at the annual rate of Ninety-Five Thousand Dollars ($95,000)
(as the same may hereafter be increased, the "Base Salary"). Base Salary shall
increase to One Hundred Thousand Dollars ($100,000) on November 9, 1999 and
shall continue as such for the remainder of the Term unless otherwise increased
pursuant to this Section 4 of this Agreement. The Base Salary shall be inclusive
of all applicable income, social security and other taxes and charges which are
required by law to be withheld by the Company or which are requested to be
withheld by Employee, and which shall be withheld and paid in accordance with
the Company's normal payroll practice for its similarly situated employees from
time to time in effect. Increases in the Base Salary may be granted from time to
time at the sole discretion of the Company in accordance with customary
procedures in effect for similarly situated employees of the Company. In
addition to the Base Salary, commencing with fiscal year 1999, the Company shall
pay Employee, within 30 days after receipt of the final audit for each fiscal
year, such bonus (the "Bonus") as the Board of Directors of the Company shall
determine in its absolute discretion. Such Bonus shall be based on the
guidelines established in advance of each fiscal year, in the absolute
discretion of the Board of Directors, including, but not limited to, the results
of the Company's operations, achievement of business unit targets, if
applicable, individual performance as compared to specific management objectives
set prior to each fiscal year, and the Company's Chief Executive Officer's
subjective assessment of Employee's performance. Accrual of any Bonus on the
financial books and records of the Company for Employee shall in no way obligate
the
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Company to pay a Bonus if Employee is terminated hereunder for any reason.
Payment of Bonus upon termination of Employee is at the sole discretion of the
Company.
5. Benefits and Expenses. Employee shall be eligible for those benefits
provided to similarly situated employees of the Company, which shall include
twenty (20) business days vacation per year and those benefits to be set forth
from time to time in the Company's employee handbook (collectively, "Benefits").
6. Confidentiality. Employee recognizes and acknowledges that the
Proprietary Information (as hereinafter defined) is a valuable, special and
unique asset of the Business of the Company. As a result, both during the Term
and thereafter, Employee shall not, without the prior written consent of the
Company, for any reason, either directly or indirectly, divulge to any
third-party or use for his own benefit, or for any purpose other than the
exclusive benefit of the Company, any confidential, proprietary, business and
technical information or trade secrets of the Company or of any subsidiary or
affiliate of the Company ("Proprietary Information") revealed, obtained or
developed in the course of his employment with the Company. Nothing herein
contained shall restrict Employee's ability to make such disclosures as may be
necessary or appropriate to the effective and efficient discharge of the duties
required by or appropriate for his Position or as such disclosures may be
required by law; and further provided, that nothing herein contained shall
restrict Employee from divulging or using for his own benefit or for any other
purpose any Proprietary Information that is readily available to the general
public so long as such information did not become available to the general
public as a direct or indirect result of Employee's breach of this Section 6.
Failure by the Company to xxxx any of the Proprietary Information as
confidential or proprietary shall not affect its status as Proprietary
Information under the terms of this Agreement.
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7. Property.
(a) All right, title and interest in and to Proprietary Information
shall be and remain the sole and exclusive property of the Company. During the
Term, Employee shall not remove from the Company's offices or premises any
documents, records, notebooks, files, correspondence, reports, memoranda or
similar materials of or containing Proprietary Information, or other materials
or property of any kind belonging to the Company unless necessary or appropriate
in accordance with the duties and responsibilities required by or appropriate
for his Position and, in the event that such materials or property are removed,
all of the foregoing shall be returned to their proper files or places of
safekeeping as promptly as possible after the removal shall serve its specific
purpose. Employee shall not make, retain, remove and/or distribute any copies of
any of the foregoing for any reason whatsoever except as may be necessary in the
discharge of his assigned duties and shall not divulge to any third person the
nature of and/or contents of any of the foregoing or of any other oral or
written information to which he may have access or with which for any reason he
may become familiar, except as disclosure shall be necessary in the performance
of his duties or as otherwise permitted pursuant to Section 6 hereof; and upon
the termination of his employment with the Company, he shall leave with or
return to the Company all originals and copies of the foregoing then in his
possession, whether prepared by Employee or by others.
(b) (i) Employee agrees that all right, title and interest in and to
any innovations, designs, systems, analyses, ideas for marketing programs, and
all copyrights, patents, trademarks and trade names, or similar intangible
personal property which have been or are developed or created in whole or in
part by Employee (1) at any time and at any place while the Employee is employed
by Company and which, in the case of any or all of the foregoing, are related to
and used in connection with the Business of the Company, (2) as a result of
tasks assigned to Employee by the Company, or (3)
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from the use of premises or personal property (whether tangible or intangible)
owned, leased or contracted for by the Company (collectively, the "Intellectual
Property"), shall be and remain forever the sole and exclusive property of the
Company. The Employee shall promptly disclose to the Company all Intellectual
Property, and the Employee shall have no claim for additional compensation for
the Intellectual Property.
(ii) The Employee acknowledges that all the Intellectual Property that
is copyrightable shall be considered a work made for hire under United States
Copyright Law. To the extent that any copyrightable Intellectual Property may
not be considered a work made for hire under the applicable provisions of the
United States Copyright Law, or to the extent that, notwithstanding the
foregoing provisions, the Employee may retain an interest in any Intellectual
Property that is not copyrightable, the Employee hereby irrevocably assigns and
transfers to the Company any and all right, title, or interest that the Employee
may have in the Intellectual Property under copyright, patent, trade secret and
trademark law, in perpetuity or for the longest period otherwise permitted by
law, without the necessity of further consideration. The Company shall be
entitled to obtain and hold in its own name all copyrights, patents, trade
secrets, and trademarks with respect thereto.
(iii) Employee further agrees to reveal promptly all information
relating to the same to an appropriate officer of the Company and to cooperate
with the Company and execute such documents as may be necessary or appropriate
(1) in the event that the Company desires to seek copyright, patent or trademark
protection, or other analogous protection, thereafter relating to the
Intellectual Property, and when such protection is obtained, to renew and
restore the same, or (2) to defend any opposition proceedings in respect of
obtaining and maintaining such copyright, patent or trademark protection, or
other analogous protection.
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(iv) In the event the Company is unable after reasonable effort to
secure Employee's signature on any of the documents referenced in Section
7(b)(iii) hereof, whether because of Employee's physical or mental incapacity or
for any other reason whatsoever, Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as Employee's
agent and attorney-in-fact, to act for and in his behalf and stead to execute
and file any such documents and to do all other lawfully permitted acts to
further the prosecution and issuance of any such copyright, patent or trademark
protection, or other analogous protection, with the same legal force and effect
as if executed by Employee.
8. Covenant not to Compete. The Employee shall not, during the Term,
including any extensions of the Term, and for a period of one (1) year
thereafter (the "Restricted Period"), do any of the following directly or
indirectly without the prior written consent of the Company:
(a) compete with the Company or any of its respective affiliates or
subsidiaries, or any of their respective successors or assigns, whether now
existing or hereafter created or acquired (collectively, the "Related
Companies"), in any document management business conducted during the Term or,
as of the date of this Agreement, contemplated to be conducted (as has been
determined by the Board) or in any other business conducted by the Company in
which the Employee is or has been actively engaged (the "Restricted Business")
within any geographic area located within the United States of America, its
possessions or territories (the "Restricted Area");
(b) become interested (whether as owner, stockholder, lender, partner,
co- venturer, director, officer, employee, agent, consultant or otherwise) in
any person, firm, corporation, association or other entity that competes with
the Related Companies in the Restricted Business within the Restricted Area;
provided, however, that nothing contained in this Section 8(b) shall prohibit
Employee from owing, as a passive investor, not more than five percent (5%) of
the outstanding
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securities of any class of any publicly-traded securities of any publicly held
company listed on a well-recognized national securities exchange or on an
interdealer quotation system of the National Association of Securities Dealers,
Inc;
(c) influence or attempt to influence any supplier, customer or
potential customer of the Company or any of the Related Companies to terminate
or modify any written or oral agreement or course of dealing with the Company or
the Related Companies; or
(d) influence or attempt to influence any person (other than a family
member) to either (i) terminate or modify his employment, consulting, agency,
distributorship or other arrangement with the Company or any of the Related
Companies, or (ii) employ or retain, or arrange to have any other person or
entity employ or retain, any person who has been employed or retained by the
Company or any of the Related Companies as an employee, consultant, agent or
distributor of the Company or the Related Companies at any time during the one
year period immediately preceding the termination of Employee's employment
hereunder.
9. Termination. Employee's employment hereunder may be terminated during
the Term upon the occurrence of any one of the events described in this Section
9. Upon termination, Employee shall be entitled only to such compensation and
benefits as described in this Section 9.
9.1. Termination for Disability.
(a) In the event of the disability of the Employee such that Employee
is unable to perform his duties and responsibilities hereunder to the full
extent required by this Agreement by reasons of illness, injury or incapacity
for a period of more than ninety (90) consecutive days or more than one hundred
twenty (120) days, in the aggregate, during any seven hundred thirty (730) day
period ("Disability"), Employee's employment hereunder may be terminated by the
Company by notice to Employee pursuant to a determination by the Chief Executive
Officer.
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(b) In the event of a termination of Employee's employment hereunder
pursuant to Section 9.1(a), Employee will be entitled to receive all accrued and
unpaid (as of the date of such termination) Base Salary and Benefits and other
forms of compensation and benefits payable or provided in accordance with the
terms of any then existing compensation or benefit plan or arrangement ("Other
Compensation"), including payment prescribed under any disability or life
insurance plan or arrangement in which he is a participant or to which he is a
party as an employee of the Company. Except as specifically set forth in this
Section 9.1(b), the Company shall have no liability or obligation to Employee
for compensation or benefits hereunder by reason of such termination.
(c) For purposes of this Section 9.1, except as hereinafter provided,
the determination as to whether Employee is Disabled shall be made by a licensed
physician selected by Employee and shall be based upon a full physical
examination and good faith opinion by such physician. In the event that the
Chief Executive Officer s disagrees with such physician's conclusion, the Chief
Executive Officer may require that Employee submit to a full physical
examination by another licensed physician selected by Employee and approved by
the Company. If the two opinions shall be inconsistent, a third opinion shall be
obtained after full physical examination by a third licensed physician selected
by Employee and approved by the Company. The majority of the three opinions
shall be conclusive.
9.2. Termination by Death. In the event that Employee dies during the Term,
Employee's employment hereunder shall be terminated thereby and the Company
shall pay to Employee's executors, legal representatives or administrators an
amount equal to the accrued and unpaid portion of his Base Salary, Benefits and
Other Compensation through the end of the month in which he dies. Except as
specifically set forth in this Section 9.2, the Company shall have no liability
or obligation hereunder to Employee's executors, legal representatives,
administrators, heirs or assigns or any other person claiming under or through
him by reason of Employee's death, except that Employee's executors,
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legal representatives or administrators will be entitled to receive the payment
prescribed under any death or disability benefits plan in which he is a
participant as an employee of the Company, and to exercise any rights afforded
under any compensation or benefit plan then in effect.
9.3. Termination By Company for Cause.
(a) The Company may terminate Employee's employment hereunder at any
time for "cause" upon written notice to Employee based upon a good faith
determination by the Chief Executive Officer. The good-faith nature of the
determination shall not in and of itself mean that "cause" exists. For purposes
of this Agreement, "cause" shall mean: (i) any breach by Employee of any of his
obligations under Sections 6, 7 or 8 of this Agreement, (ii) gross incompetence
in the performance by Employee of the duties required by or appropriate for his
Position, (iii) a material violation of the Company's employee policies, as may
be amended from time to time, or (iv) other conduct of Employee involving any
type of disloyalty to the Company or willful misconduct with respect to the
Company, including without limitation fraud, embezzlement, theft or proven
dishonesty in the course of his employment or conviction of a felony.
(b) In the event of a termination of Employee's employment hereunder
pursuant to Section 9.3(a), Employee shall be entitled to receive all accrued
but unpaid (as of the effective date of such termination) Base Salary, Benefits
and other Compensation. All Base Salary and Benefits shall cease at the time of
such termination, subject to the terms of any benefit or compensation plan then
in force and applicable to Employee. Except as specifically set forth in this
Section 9.3, the Company shall have no liability or obligation hereunder by
reason of such termination.
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9.4. Termination By Company Without Cause.
(a) The Company may terminate Employee's employment hereunder at any
time, for any reason, without cause, effective upon the date designated by the
Company upon written notice to Employee.
(b) In the event of a termination of Employee's employment hereunder
pursuant to Section 9.4(a), Employee shall be entitled to receive all accrued
but unpaid (as of the effective date of such termination) Base Salary, Benefits
and other Compensation, plus either (i) if such termination is prior to the last
twelve months of the Term, continuation of the current Base Salary plus Benefits
(including vesting of options and other Benefits) for one year, or (ii) if such
termination is in the last twelve-month period of the Term, continuation of the
Base Salary plus continuation of Benefits (including vesting of options and
other Benefits) for the greater of (x) the remaining portion of the Term, or (y)
six months. Except as specifically set forth in this Section 9.4, the Company
shall have no liability or obligation hereunder by reason of such termination.
9.5. Termination By Employee
(a) Employee may terminate Employee's employment hereunder at any time
effective upon the date designated by Employee in written notice of the
termination of his employment hereunder pursuant to this Section 9.5(a) (the
"Request Date"); provided that, such date shall be at least sixty (60) days
after the date of such notice. Notwithstanding the foregoing, upon receipt by
the Company of such written notice of termination, the Company in its sole
discretion, may deem such termination effective immediately (the "Accelerated
Termination Date"). In the event the parties mutually agree to an alternative
date of termination, that date shall be considered the Request Date.
(b) In the event of a termination of Employee's employment hereunder
pursuant to Section 9.5(a) hereof, Employee shall be entitled to receive all
accrued but unpaid (as of the earlier of the Request Date or the Accelerated
Termination Date), Base Salary and Benefits. If
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the Company does not terminate the Employee immediately upon receipt of the
termination notice and Employee performs his duties in a satisfactory manner, as
determined in the sole discretion of the Company, until the Request Date,
Employee shall also be entitled to an amount equal to one month's Base Salary
(in effect at such time). In addition, in the event of a termination of
Employee's employment pursuant to Section 9.5(a) at the end of the Term upon
sixty (60) prior written notice and upon the satisfactory completion, in the
sole discretion of the Company, of Employee's duties during the 60-day period
after receipt of such termination notice, Employee shall be entitled to receive
an amount equal to one month's Base Salary (in effect at such time) multiplied
by the number of the complete 12-month periods of service completed prior to
giving notice of termination. Except as specifically set forth in this Section
9.5(b), all Base Salary, Benefits and Bonuses shall cease at the time of such
termination, subject to the terms of any benefit or compensation plan then in
force and applicable to Employee. Except as specifically set forth in this
Section 9.5, the Company shall have no liability or obligation hereunder by
reason of such termination.
9.6. Sale of Company/Change of Control.
(a) If there is a Sale of the Company or a Change of Control during
the Term, then the Company or the successor to all or substantially all of the
Company's assets, capital stock or business (the "Successor Entity"), as the
case may be, must offer Employee employment pursuant to a written contract offer
(the "Offer") within five (5) days of such Sale of the Company or Change of
Control. Employee shall, within fifteen (15) days after receipt of such Offer,
either (i) accept the terms of the Offer, such acceptance indicated by return of
a copy of the Offer duly executed, (ii) elect in writing, provided to the
Company or the Successor Entity, as the case may be, to remain employed under
this Agreement for the remainder of the Term, or (iii) elect to terminate
Employee's employment
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hereunder upon sixty (60) days prior notice, such termination to be effective at
the expiration of said sixty (60) day period, or sooner, if desired by the
Company or the Successor Entity.
(b) For purposes of this Section 9.6, (i) a "Change of Control" means
the sale, transfer, assignment or other disposition (including by merger or
consolidation) by stockholders of the Company, in one transaction or a series of
related transactions, of more than fifty percent (50%) of the voting power
represented by the then outstanding stock of the Company to one or more Persons,
other than (i) any such sales, transfers, assignments or other dispositions by
such stockholders to their respective Affiliates, (ii) any such transaction
effected primarily to reincorporate the Company in another jurisdiction or (iii)
any transaction in connection with the simultaneous acquisition of document
management companies and the initial public offering of the common stock of the
Company or its affiliate; (ii) "Affiliate" means, with respect to any
stockholder of the Company, (w) any Person directly or indirectly controlling,
controlled by or under common control with such stockholder, (x) any Person
owning or controlling ten percent (10%) or more of the outstanding voting
securities of such stockholder, (y) any officer, director or general partner of
such stockholder, or (z) any Person who is an officer, director, general
partner, trustee or holder of ten percent (10%) or more of the outstanding
voting securities of any Person described in clauses (w) through (y) of this
sentence; and (iii) "Person" means an individual, partnership, corporation,
joint venture, association, trust, unincorporated association, other entity or
association.
(c) For purposes of this Section 9.6, a "Sale of the Company" means a
sale, transfer, assignment or other disposition (including by merger or
consolidation), of all of the outstanding stock of the Company, or of all or
substantially all of the assets of the Company, a liquidation or dissolution of
the Company. A "Sale of the Company" shall not include the consummation
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of a public offering of Common Stock of the Company or its affiliate pursuant to
a registration statement or any transaction effected primarily to reincorporate
the Company in another jurisdiction.
(d) In the event of termination of Employee's employment hereunder
pursuant to clause (iii) in Section 9.6(a) above, Employee shall be entitled to
receive all accrued but unpaid (as of the effective date of such termination)
Base Salary and Benefits. In addition, in such case Employee shall be entitled
to receive Base Salary and Benefits for the eighteen (18) months following the
effective date of such termination (the "Additional Amount"). Employee, at his
sole option, may receive the Additional Amount paid either (i) monthly for
eighteen (18) months, or (ii) in one payment on the effective date of such
termination, in which case the value of the Benefits otherwise payable will be
monetized, and such payment of the Additional Amount will be discounted at the
then current Federal Short Term Rate as defined in the Internal Revenue Code of
1986, as amended.
(e) In the event Employee chooses to continue employment hereunder
pursuant to clause (ii) in Section 9.6(a) above and Employee's employment is
thereafter terminated prior to the expiration of the Term for any reason other
than Death, Disability or termination pursuant to Section 9.2(a)(iv), Employee
shall be entitled to receive all the benefits and compensation referred to in
Section 9.6(d) above. In the event Employee chooses to continue employment
hereunder pursuant to clause (ii) in Section 9.6(a) above, at the expiration of
the Term, Employee shall be entitled to receive an amount equal to two month's
Base Salary (in effect at such time) multiplied by the number of complete
12-month periods of service completed prior to such termination.
(f) If this Agreement is assumed by any Successor Entity, any payments
set forth herein shall be the obligation of such Successor Entity. Except as
specifically set forth in this Section 9.6, (i) all Base Salary, Benefits and
Bonuses shall cease at the time of such termination, subject to the terms of any
benefit or compensation plans then in force and applicable to
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Employee, and (ii) the Company shall have no liability or obligation hereunder
by reason of such termination.
(g) If the Successor Entity fails to make the Offer, Employee shall be
entitled to receive all of the benefits and compensation referred to in Section
9.6(d) above.
10. Other Agreements. Employee represents and warrants to the Company that:
(a) There are no restrictions, agreements or understandings whatsoever
to which Employee is a party which would prevent or make unlawful Employee's
execution of this Agreement or Employee's employment hereunder, or which is or
would be inconsistent or in conflict with this Agreement or Employee's
employment hereunder, or would prevent, limit or impair in any way the
performance by Employee of his obligations hereunder,
(b) That Employee's execution of this Agreement and Employee's
employment hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which Employee is a party or by which
Employee is bound, and
(c) That Employee is free to execute this Agreement and to enter into
the employ of the Company pursuant to the provisions set forth herein.
(d) In the event that they are still in effect, that Employee shall
disclose the existence and terms of the restrictive covenants set forth in this
Agreement to any employer that the Employee may work for during the term of this
Agreement (which employment is not hereby authorized) or after the termination
of the Employee's employment at the Company.
11. Survival of Provisions. The provisions of this Agreement set forth in
Sections 6, 7, 8, 9 and 20 hereof shall survive the termination of Employee's
employment hereunder.
12. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and Employee and their respective successors,
executors, administrators,
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heirs and/or permitted assigns; provided, however, that neither Employee nor the
Company may make any assignments of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party hereto, except that, without such consent, the Company may assign this
Agreement to an Affiliate or any successor to all or substantially all of its
assets and business by means of liquidation, dissolution, merger, consolidation,
transfer of assets, or otherwise, provided that such successor assumes in
writing all of the obligations of the Company under this Agreement, subject,
however, to Employee's rights as to termination as provided in Section 9.6
hereof.
13. Notice. Any notice or communication required or permitted under this
Agreement shall be made in writing and sent by certified or registered mail,
return receipt requested, addressed as follows:
If to Employee:
Xxxx X. Xxxxxxxx
000 Xxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000
If to Company:
Xxxxxx Xxxxx
ImageMax, Inc.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
or to such other address as either party may from time to time duly
specify by notice given to the other party in the manner specified above.
14. Entire Agreement; Amendments. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the subject matter
hereof, and merges and supersedes all prior and contemporaneous discussions,
agreements and understandings of every nature between the parties hereto
relating to the employment of Employee with the Company. This Agreement may not
be changed or modified, except by an Agreement in writing signed by each of the
parties hereto.
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15. Waiver. The waiver of the breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
16. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
17. Invalidity. In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
the validity of any other provision of this Agreement, and such provision(s)
shall be deemed modified to the extent necessary to make it enforceable.
18. Section Headings. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
19. Number of Days. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and legal
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or day which is a holiday in Philadelphia, Pennsylvania, then
such final day shall be deemed to be the next day which is not a Saturday,
Sunday or legal holiday.
20. Specific Enforcement; Extension of Period.
(a) Employee acknowledges that the restrictions contained in Sections
6, 7, and 8 hereof are reasonable and necessary to protect the legitimate
interests of the Company and its affiliates and that the Company would not have
entered into this Agreement in the absence of such restrictions. Employee also
acknowledges that any breach by him of Sections 6, 7, or 8 hereof will cause
continuing and irreparable injury to the Company for which monetary damages
would not be an adequate remedy. The Employee shall not, in any action or
proceeding to enforce any of the provisions of this
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Agreement, assert the claim or defense that an adequate remedy at law exists. In
the event of such breach by Employee, the Company shall have the right to
enforce the provisions of Sections 6, 7, and 8 of this Agreement by seeking
injunctive or other relief in any court, and this Agreement shall not in any way
limit remedies of law or in equity otherwise available to the Company. If an
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to recover, in addition
to any other relief, reasonable attorneys' fees, costs and disbursements. In the
event that the provisions of Sections 6, 7, or 8 hereof should ever be
adjudicated to exceed the time, geographic, or other limitations permitted by
applicable law in any applicable jurisdiction, then such provisions shall be
deemed reformed in such jurisdiction to the maximum time, geographic, or other
limitations permitted by applicable law.
(b) In the event that Employee shall be in breach of any of the
restrictions contained in Section 8 hereof, then the Restricted Period shall be
extended for a period of time equal to the period of time that Employee is in
breach of such restriction.
21. Arbitration. In the event that the parties are unable to resolve any
disputes arising hereunder, such dispute shall be submitted for a binding
determination by a neutral third party designated by the President of the
Philadelphia office of the American Arbitration Association.
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22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first written above.
IMAGEMAX, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Title: Acting Chief
Executive Officer
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxx
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