Exhibit 10.11
NORCROSS SAFETY PRODUCTS L.L.C.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), dated as of
January 1, 2002, is entered into by and between Norcross Safety Products L.L.C.,
a Delaware limited liability company (the "COMPANY"), and Xxxxx X. Xxxxx, Xx.
("EXECUTIVE"). Certain capitalized terms used but not otherwise defined herein
are defined in SECTION 7.
In the course of Executive's employment with the Company,
Executive shall become familiar with the Company's near-permanent relationships
with its suppliers, customers and employees and Confidential Information (as
defined in SECTION 6 below), and Executive's services shall be of special,
unique and extraordinary value to the Company.
The Company and Executive desire to enter into an agreement (i)
relating to Executive's employment by the Company, (ii) defining the relative
rights of the Company and Executive with respect to Confidential Information
owned by the Company to which Executive may have access or may contribute as a
result of Executive's employment with the Company, and (iii) setting forth the
obligation of Executive to refrain from competing with the Company during his
employment with the Company and for a period of time thereafter as provided
herein.
The parties hereto, in exchange for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) The Company shall employ Executive, and Executive hereby
accepts employment with the Company, as Chief Financial Officer and Executive
Vice President of the Company pursuant to the terms and conditions of this
Agreement. Executive shall report to the President of the Company.
(b) Executive shall devote his best efforts to the interests
of the Company and, to the extent requested, its Affiliates, which interests may
change from time to time, and shall devote all of his professional time and
attention to the business and affairs of the Company and such Affiliates;
PROVIDED that nothing herein shall prevent Executive, with the prior approval of
the Board of Managers of NSP Holdings L.L.C, (the "Board"), from serving as a
director or trustee of other corporations or businesses which are not in
competition with the Company or its Affiliates. Notwithstanding this SECTION
1(b) or any other provision of this Agreement to the contrary, Executive may
commence seeking other employment if Company, at least 90 days before the date
referred to in clause (i) of the first sentence of SECTION 2(a), shall not have
offered to Executive in writing to continue to employ Executive for at least two
years, on terms no less favorable to Executive than those existing at such time.
(c) Executive shall perform such duties and functions
commensurate with his position as may be reasonably assigned or delegated to him
from time to time by either the President or the Board. Executive acknowledges
that such duties and functions may or may not involve performance of services
for or on behalf of Affiliates of the Company.
2. TERM AND TERMINATION.
(a) TERM. The "TERM" of Executive's employment is from the
date hereof until the "TERMINATION DATE", which is defined as the earlier of (i)
the fifth anniversary of the date hereof or (ii) the date of termination of
Executive's employment pursuant to any one or more of SECTIONS 2(b), 2(c), 2(d)
or 2(e) of this Agreement. Executive is an at-will employee of the Company, and
his employment may be terminated by Executive, in his sole and arbitrary
discretion, at any time with or without Good Reason, or by the Company, in the
Company's sole and arbitrary discretion, at any time with or without Cause, by
delivery of a written termination notice to the other party.
(b) DEATH. If Executive dies during the Term, the Termination
Date shall be the date of his death.
(c) DISABILITY. If Executive becomes Disabled during the
Term, the Termination Date shall be the date as of which such Disability is
determined. Subject to applicable law, "DISABILITY" or "DISABLED" means such
physical, mental or psychological condition or other impairment that prevents
Executive from effectively performing the duties of his employment for more than
ninety (90) calendar days in any six (6) consecutive months commencing on the
initial date of such condition or impairment. In connection with any Disability
(or possible Disability):
(i) Executive (and Executive's spouse or whoever else
is acting on his behalf) shall cooperate with any physicians engaged or
requested to be engaged by the Company to examine Executive to determine
whether or not Executive is Disabled, and each of Executive and the
Company irrevocably consents to disclosure to each of them by any such
physicians of all matters relating to such examinations.
(ii) The determination of Disability shall be by
agreement of the Company and Executive, or if Executive's condition is
such that he is unable to participate in such determination, then by
agreement of the Company and Executive's spouse or whoever else is then
acting on his behalf, and if the parties involved in such determination
are unable to reach agreement within ten (10) days of a request by either
party, then the issue shall be decided by a physician chosen by the
Company and reasonably acceptable to Executive (or Executive's spouse or
whoever else is then acting on his behalf). The Company will pay all
expenses incurred in the determination of whether Executive is Disabled.
(d) TERMINATION BY EXECUTIVE. If Executive terminates his
employment, with or without Good Reason, the Termination Date shall be the date
indicated on the written termination notice given by Executive to the Company,
which may not be more than thirty (30) days nor less than
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fourteen (14) days from its receipt by the Company; PROVIDED THAT upon receipt
of Executive's termination notice, the Company may, in its sole discretion,
request that Executive cease his employment activities prior to the date
referenced in such notice, and Executive shall promptly comply with such
request, it being understood that such request will not change the Termination
Date specified in this SECTION 2(d) or affect the characterization of the
termination of Executive's employment.
(e) TERMINATION BY THE COMPANY. If the Company terminates the
employment of Executive, with or without Cause, the Termination Date shall be
the date on which the Company's termination notice is given to Executive, or
such later date indicated on such termination notice, which may not be more than
thirty (30) days from its receipt by Executive.
(f) REVERSAL OF DETERMINATION. If Executive's employment is
terminated by the Company with Cause or by Executive with Good Reason, and it is
thereafter judicially determined that Cause or Good Reason as appropriate for
such termination did not exist at the time of such termination, then Executive's
employment shall be deemed to have been terminated without Cause or Good Reason
as appropriate as of the Termination Date. If matters constituting Cause or Good
Reason as appropriate become known to the Company or to Executive within 90
business days after Executive's employment is terminated, then either party may,
by delivery of written notice to the other party treat such termination as being
with Cause or Good Reason as appropriate.
(g) DEFINITION OF CAUSE. "CAUSE" for termination of
Executive's employment by the Company means Executive's
(i) embezzlement or misappropriation of funds;
(ii) conviction of a felony involving moral turpitude;
(iii) commission of a material act of dishonesty, fraud,
or deceit;
(iv) breach of any material provisions of this Agreement
or other agreement with the Company, NSP Holdings L.L.C., or any Subsidiary, to
which he is a party;
(v) habitual or willful neglect of his duties;
(vi) breach of fiduciary duty to the Company, NSP
Holdings L.L.C., or any Subsidiary, involving personal profit; or
(vii) material violation of any other duty to the
Company, NSP Holdings L.L.C., or any Subsidiary, or its members imposed by its
managers or by law.
(h) DEFINITION OF GOOD REASON. "GOOD REASON" for termination
by Executive of Executive's employment means:
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(i) a material breach by the Company of its obligations
under this Agreement which is not cured (if curable) within twenty (20)
days after written notice by Executive to the Company;
(ii) the Company's requiring Executive to move his
principal place of employment by more than 25 miles, other than for
reasonable business travel, if such move increases Executive's commute
from his primary residence, without Executive's written consent thereto;
PROVIDED THAT Executive must notify the Company in writing of his intent
to terminate his employment pursuant to this SECTION 2(h)(ii) prior to
the sixtieth day after the earlier of (x) the date that the Company
notifies Executive in writing of its intent to relocate Executive and (y)
the date that such relocation occurs;
(iii) the failure of any successor to the Company to
assume this Agreement as set forth in SECTION 9(i); or
(iv) the occurrence of a Change of Control; PROVIDED
THAT Executive must notify the Company in writing of his intent to
terminate his employment pursuant to this SECTION 2(h)(iv) prior to the
sixtieth day after the date of the Change of Control.
3. COMPENSATION.
(a) Executive's compensation for his services hereunder shall
consist of (i) Base Salary, plus (ii) Bonus, if any, plus (iii) Benefits.
(b) "BASE SALARY" shall be paid by the Company to Executive
at an annual rate of $268,538 (subject to increase from time to time to reflect
cost-of-living increases and as merited to reflect Executive's performance on
behalf of the Company and its Subsidiaries), payable in arrears in equal
bi-weekly installments. Under no circumstances may the Base Salary be decreased
during the Term.
(c) "BONUS" if any, shall be targeted at 90% of Base Salary,
based on targeted EBITDA and budgeted cash flow or other such financial criteria
as may be determined by the Board and agreed to by Executive. All Bonus due
hereunder shall be payable March 31 of the following year. The Bonus payable
hereunder shall be in addition to any bonus payable to Executive pursuant to
that certain letter agreement, dated as of the date hereof, by and between NSP
Holdings L.L.C. and the Executive (as amended from time to time, the "Letter
Agreement").
(d) "BENEFITS" consist of whatever, if any, health,
hospitalization, sick pay, life insurance, disability insurance, profit sharing,
pension, 401(k), and deferred compensation plans and programs that the Company
may have in effect from time to time for its employees who are not members of a
collective bargaining unit, all of which Executive shall be entitled to
participate in on a basis commensurate with his position. Executive shall also
be entitled to four (4) calendar weeks' paid vacation each year, in addition to
regularly scheduled holidays. The Company may initiate, change and discontinue
any such plans and programs at any time; PROVIDED, THAT no such change shall
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be effective as to Executive unless it is also effective as to the other senior
executives of the Company. If any of such plans or programs require
contributions by employees, Executive shall pay the contributions required by
his participation at a rate no greater than that applicable to any senior
executive of the Company. Company shall pay Executive a monthly automobile
allowance of $700.
4. TERMINATION PROVISIONS.
(a) If the Company terminates Executive's employment with
Cause or if Executive terminates his employment without Good Reason, then
Executive shall be entitled to receive:
(i) Base Salary and Benefits for the period ending on
the Termination Date; and
(ii) any unpaid Bonus for any calendar year ending prior
to the year in which the Termination Date occurs.
(b) If the Company terminates Executive's employment without
Cause (which shall include, without limitation, Company's not offering Executive
continued employment with the Company in accordance with the second sentence of
SECTION 1(b)), if Executive terminates his employment with Good Reason, or if
Executive's employment terminates by reason of his death or Disability, then
Executive shall be entitled to receive the following, except that (iv) shall not
apply in the case of Executive's death:
(i) Base Salary and Benefits for the period ending on
the Termination Date;
(ii) any unpaid Bonus for any calendar year ending prior
to the year in which the Termination Date occurs;
(iii) any Bonus for the calendar year in which the
Termination Date occurs, pro rated based on the portion of Base
Salary paid to Executive by the Company in such year; and
(iv) IF, AND ONLY IF, Executive (or his guardian or
personal representative, as the case may be), within 30 days
after the Termination Date, signs and delivers to the Company a
complete general release of claims for facts and circumstances
existing before the date of such release in the form of Exhibit
A, Base Salary for the period commencing on the Termination Date
and ending two years thereafter, together with any other Benefits
as may be provided under the terms of any applicable written
plan, program or arrangement of the Company applicable to senior
executives of the Company (including automobile allowance). If
Executive does not comply with the terms of this SECTION 4(b)(iv)
within 30 days after the Termination Date, the Company shall not
be responsible for any further payments to Executive.
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Notwithstanding the foregoing, in the event that the Executive's
employment has terminated because the Company has not offered
Executive continued employment with the Company in accordance
with the second sentence of SECTION 1(b), any payments or
benefits that Executive would be entitled to receive from the
Company in the second year of the severance period shall be
reduced by the amounts of any payments or benefits (but the
reduction for benefits shall only be for benefits of a
substantially similar nature) that Executive shall be entitled to
receive during and with respect to the second year of the
severance period from other employment (including
self-employment), Executive shall promptly report to the Company
all payments or benefits from other employment (including
self-employment) Executive is entitled to receive during and with
respect to the second year of such severance period.
(c) Any amounts owed by the Company to Executive pursuant to
SECTION 4(b)(iv) shall be paid at such times and in such manner as if the
termination giving rise to such payments had not occurred (with the Company
retaining the right to prepay all or any portion of such amount at any time in
its sole discretion); provided that in the event that Executive's employment has
been terminated for the reason described in Section 2(h)(iv), amounts owed to
Executive shall be paid in a single lump sum within ten days of the effective
date of Executive's resignation, discounted to present value at a 7% annual
rate.
(d) The Company's obligation to make any payments or Benefits
available to Executive pursuant to this SECTION 4 shall be conditioned upon
Executive's continued and continuing compliance with the terms and conditions of
this Agreement (including, without limitation, SECTION 6 hereof) and shall
constitute Company's sole obligation, and the sole obligation of Company's
Affiliates, to Executive (or any Person making any claim through Executive or
regarding his employment by Company or any Affiliate) in respect of Company's
termination of Executive's employment hereunder or any breach by Company hereof
respecting which Executive terminates his employment hereunder.
(e) Except as otherwise specified herein, if Executive's
employment terminates on any date other than the last day of a month,
Executive's compensation for that month shall be calculated on the basis of a
fraction, the numerator of which shall be the number of days during that month
that Executive shall have been in the Company's employ and the denominator of
which shall be the number of days in that month.
(f) In the event that Executive's employment is terminated
for Cause, the Company may offset any amounts Executive owes it or its
Affiliates pursuant to any written agreement, note or other instrument relating
to indebtedness for borrowed money to which Executive is a party, or pursuant to
any other liability or obligation by which Executive is bound, in each case
which is due or becomes due within ninety days after Executive is to be paid
such amounts hereunder against any amounts it owes Executive hereunder, upon
providing written notice to Executive of such offset; PROVIDED that, whether or
not Executive's employment has been terminated for Cause, the Company may offset
any amounts Executive owes, whether or not then due and payable, the
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Company or its Affiliates pursuant to any written agreement, note or other
instrument relating to indebtedness for borrowed money to which Executive is a
party against up to 53.59% of any bonus it agrees to pay Executive under the
Letter Agreement.
5. EXPENSES. The Company shall reimburse Executive for all
reasonable expenses incurred in the performance of his duties in accordance with
the expense reimbursement policy of the Company with respect to senior
executives of the Company in effect at the time.
6. NONCOMPETITION, NONSOLICITATION, CONFIDENTIALITY.
As a material inducement to the Company to enter into this
Agreement and in consideration of the payment by the Company of the compensation
detailed herein to Executive:
(a) During the period (the "NONCOMPETE PERIOD") beginning on
the date hereof and ending 18 months after the Termination Date, Executive shall
not, without the prior written consent of the Company (which consent may be
granted or withheld in the Company's sole discretion), directly or indirectly,
Participate in any line of business in which the Company is actively engaged or
any line of business competitive with the Company anywhere in the United States
and any other country in which the Company does business as of the Termination
Date (the "COMPETITIVE ACTIVITIES"). For purposes of this Agreement, the term
"PARTICIPATE" includes any direct or indirect interest in, or providing any
direct or indirect assistance (whether financial, advisory or otherwise) to, any
enterprise (or any affiliate thereof), whether as an officer, director,
employee, partner, member, sole proprietor, agent, representative, independent
contractor, consultant, creditor, stockholders, unitholder, owner or otherwise;
PROVIDED THAT the term "Participate" shall not include beneficial ownership of
less than 2% of a class of securities traded on a national securities exchange
or the NASDAQ Stock Market.
(b) During the Noncompete Period, Executive (i) except with
respect to Executive's personal secretary and Xxxxxx X. Xxxxxxxx, shall not, and
shall not attempt to, directly or indirectly contact, approach or solicit for
the purpose of offering employment to or hiring or retaining, or arrange to have
any other Person hire or retain, or actually hire or retain, whether as an
employee, consultant, agent, independent contractor or otherwise, any Person
employed or retained by NSP Holdings L.L.C., Company, or any Subsidiary as an
employee, consultant or independent contractor during the Noncompete Period and
(ii) shall not, and shall not attempt to, call-on, solicit, service, advise,
encourage or induce any customer, supplier, or other business relation of NSP
Holdings, L.L.C., Company, or any Subsidiary to cease doing business, or reduce
its business, with NSP Holdings L.L.C., Company, or any Subsidiary or to engage
in any business relationship which might materially harm NSP Holdings L.L.C.,
Company, or any Subsidiary.
(c) Executive acknowledges that certain of the information,
observations and data relating to the Company and its Affiliates, or their
business, products or services, which he possesses or has obtained knowledge of
or will possess or obtain knowledge of as an employee, officer, director or
equityholder of the Company is and will be the confidential and proprietary
property of the Company and its Affiliates ("CONFIDENTIAL INFORMATION").
Executive agrees that he shall not,
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directly or indirectly, use for his own purposes or use for or disclose to any
third party any of such Confidential Information without the prior written
consent of the Company, unless and to the extent that the aforementioned matters
(i) become generally known to and available for use by the public other than as
a result of Executive's acts or failures to act, or (ii) Executive is required
by order of a court of competent jurisdiction (by subpoena or similar process)
to disclose any Confidential Information (provided that in such case, Executive
shall promptly inform the Company of such order, shall cooperate with the
Company at the Company's expense in attempting to obtain a protective order or
to otherwise restrict such disclosure, and shall only disclose Confidential
Information to the minimum extent necessary to comply with any such court
order).
(d) The parties hereto acknowledge and agree that the Company
will suffer irreparable harm from a breach by Executive of any of the covenants
or agreements contained in this SECTION 6. In the event of an alleged or
threatened breach by Executive of any of the provisions of this SECTION 6, the
Company or other appropriate Person may, in addition to all other rights and
remedies existing in its or their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other equitable
relief in order to enforce or prevent any violations of the provisions hereof.
Executive acknowledges and agrees that the restrictions contained in this
SECTION 6 are reasonable.
(e) If, at the time enforcement of any of the provisions of
this SECTION 6 is sought, a court holds that the restrictions stated herein are
unreasonable under the circumstances then existing, the parties hereto agree
that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or geographical
area. Executive agrees that the covenants made in this SECTION 6 shall be
construed as an agreement independent of any other provision of this Agreement
and shall survive any order of a court of competent jurisdiction terminating any
other provision of this Agreement.
(f) Executive hereby agrees and acknowledges (i) that the
Company and its Affiliates have protectable interests in the information, data,
and plans, both technical and business in nature, which are treated as
confidential, as well as the goodwill and specialized knowledge acquired by
Executive during the course of Executive's employment with the Company; (ii)
that the provisions of this SECTION 6 are in consideration of (A) employment
with the Company, (B) access to and use of Confidential Information, including
but not limited to information, data, and plans, both technical and business in
nature, such as customer lists and records, sales records and marketing plans,
research and technical reports and records, formulas, processes, programs,
inventions, patent applications, designs and drawings, instructions and training
manuals, business and financial information, salary information, contracts and
other legal documents, and correspondence to which the Company has been a party,
(C) access to and Executive's development on behalf of the Company of
near-permanent relationships with the Company's customers, and (D) additional
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged; (iii) that the restrictions contained in this SECTION 6 do not
preclude Executive from earning a livelihood, nor do they unreasonably impose
limitations on Executive's ability to earn a living, and that the potential harm
to the Company or its Affiliates of the non-enforcement of this SECTION 6
outweighs any harm to Executive of their enforcement by injunction or otherwise;
and (iv) that Executive has carefully
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reviewed this Agreement and that he has consulted with independent legal counsel
regarding his rights and obligations under this Agreement (or, after carefully
reviewing this Agreement, was given the opportunity to, but has freely decided
not to, consult with independent legal counsel), has given careful consideration
to the restraints imposed upon Executive by this Agreement, fully understands
the terms and conditions contained herein and is in full accord as to their
necessity for the reasonable and proper protection of the Company's
near-permanent customer relationships and employee relationships and
Confidential Information and those of its Affiliates, and Executive intends for
such terms to be binding on and enforceable against him, and that each and every
restraint imposed by this Agreement is reasonable with respect to subject
matter, time period and geographical area.
(g) Executive agrees that the provisions of this SECTION 6
shall inure to the benefit of and be enforceable by any Person with whom or into
which the Company shall merge or consolidate, regardless whether the Company
shall be the survivor of such transaction, or to any Person acquiring all or
substantially all of the Company's assets or business.
7. DEFINITIONS. The following definitions shall be applied to the
capitalized terms used in this Agreement for all purposes, unless otherwise
clearly indicated:
"AFFILIATES" of any Person means any Person that directly or
indirectly controls, is controlled by, or is under common control with the
Person in question.
"BUSINESS" means the manufacturing and/or marketing of personal
protection and safety equipment products primarily intended for use in the
workplace, including, without limitation, respiratory equipment, hand
protection, hearing protection, eye, hand, face and foot protection, industrial
first aid, fall protection, high voltage lineman equipment, eye wash, and
dermatological and single-use applicators for surgical protection.
"CHANGE OF CONTROL" shall mean any transaction (including,
without limitation, a merger, consolidation, sale of stock or sale of assets,
but excluding any assignment as security for indebtedness) after which Canadian
Imperial Bank of Commerce and its Affiliates and Xxxx Xxxxxxx Life Insurance
Company and its Affiliates or any of them shall not have the power to elect a
majority of the members of the Board or the governing body of Company.
"COMPANY" shall have the meaning given to such term in the
preamble hereto, any successor to its business and/or assets which assumes this
Agreement by operation of law or otherwise, and their respective Subsidiaries.
"LLC AGREEMENT" shall mean the Amended and Restated Limited
Liability Company Agreement of Norcross Safety Products L.L.C. dated as of
February 17, 2000, as amended and modified from time to time.
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"PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the limited liability company, partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control the managing member or general partner of
such limited liability company, partnership, association or other business
entity.
8. NOTICES. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
TO THE COMPANY
Norcross Safety Products L.L.C.
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
WITH COPIES TO:
CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Telecopier: (000) 000-0000
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TO EXECUTIVE
Xxxxx X. Xxxxx, Xx.
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
9. GENERAL PROVISIONS.
(a) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) COMPLETE AGREEMENT. This Agreement, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
(c) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(d) SUCCESSORS AND ASSIGNS. Unless otherwise expressly
provided, this Agreement shall bind and inure to the benefit of and be
enforceable by Executive, the Company and their respective successors and
assigns.
(e) GOVERNING LAW: The laws of the state of Illinois shall
govern all issues and questions concerning the employment of Executive, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois. All other issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules
hereto shall be governed by, and construed in accordance with, the laws of the
State of Delaware, without giving effect to any choice of law or conflict of law
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rules or provisions (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
(f) [Intentionally deleted].
(g) AMENDMENT AND WAIVER. The provisions of this Agreement
may be amended and waived only with the prior written consent of the Company and
Executive.
(h) THIRD-PARTY BENEFICIARY. Except as expressly provided,
there are no beneficiaries to this Agreement other than the signatories hereto.
(i) BUSINESS DAYS. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or legal
holiday in the state in which the Company's chief executive office is located,
the time period shall be automatically extended to the business day immediately
following such Saturday, Sunday or legal holiday.
(j) ASSIGNMENT. Nothing in this Agreement shall preclude the
Company from consolidating or merging into or with, or transferring all or
substantially all of its assets to, another corporation; PROVIDED THAT the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company to assume this Agreement.
(k) WITHHOLDING. All amounts payable to Executive as
compensation hereunder shall be subject to customary withholding by the Company.
(l) NO STRICT CONSTRUCTION. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party.
(m) SURVIVAL. SECTION 4, SECTION 6, Section 9(n), and the
rest of SECTION 9 with respect to SECTIONS 4 and 6 shall survive and continue in
full force in accordance with their terms notwithstanding any termination of the
Term.
(n) NON-DISPARAGEMENT. The Executive shall not make or
publish any negative statements or communications about NSP Holdings L.L.C.,
Company, any Subsidiary or any officer, manager, member or employee of NSP
Holdings L.L.C., Company, or any Subsidiary. The
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Company shall not, and shall cause NSP Holdings L.L.C. and its Subsidiaries not
to, make or publish any negative statements or communications about the
Executive.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
NORCROSS SAFETY PRODUCTS L.L.C.
By: /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, a manager
/s/ Xxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxx, Xx.
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EXHIBIT A
For consideration received (including payments, promises, and
agreements), Xxxxx X. Xxxxx, Xx. (the "Executive") on behalf of himself and on
behalf of any dependents, spouse, heirs, successors and assigns, does hereby
generally release, NSP Holdings L.L.C., Norcross Safety Products, L.L.C., and
each of their respective predecessors, successors, assignees, parent companies,
members, subsidiaries, affiliates, officers, directors, managers, partners,
employees, agents and attorneys, past and present (collectively, the "Released
Persons"), from liability on or for any and all charges, claims, controversies,
actions, causes of action, cross-claims, counterclaims, demands, debts, duties,
sanctions, fines, compensatory damages, liquidated damages, punitive or
exemplary damages, other damages, claims for costs, attorney's fees, sums of
money, suits, contracts, covenants, controversies, agreements, promises,
responsibilities, obligations and accounts of any nature whatsoever in law or in
equity, direct or indirect, both past and present and whether or not now or
heretofore known, suspected, or claimed against the Released Persons including,
but not limited to, any claim relating to, by reason of, or arising out of, any
acts, matters or omissions of the Released Persons, Executive's employment with
any of the Released Persons, events occurring during the course of such
employment, or the termination thereof, including but not limited to, any claim
of unlawful discrimination due to race, sex, religion, national origin,
handicap, ancestry, or age or other claim of unlawful employment discrimination;
any claim that any of the Released Persons violated any promise or agreement,
either express or implied, with Executive or that any of the Released Persons
has terminated or caused termination of Executive's employment for any unlawful
reason or in an unlawful fashion, including specifically without limiting the
generality of the foregoing, any claim under the Family and Medical Leave Act,
the Worker Adjustment Retraining and Notification Act, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1991, the Civil Rights Act of 1866, the Rehabilitation Act, the Labor
Management Relations Act, or the Equal Pay Act, each as amended from time to
time, or violated any other federal, state, or local law or regulation; or any
claim of emotional distress, defamation, wrongful termination, wages, severance
pay, bonus, sick leave, holiday pay, vacation pay, life insurance, health and
medical insurance, or any other fringe benefit. This release shall in no respect
have any force or effect with respect to (a) claims with respect to Executive's
equity interests in NSP Holdings L.L.C, to the extent that such claims relate to
facts and circumstances which form the basis of a claim brought by an
equityholder that is not an employee of NSP Holdings L.L.C. or its Subsidiaries;
(b) claims for rights of indemnification or exculpation under the constitutive
documents of NSP Holdings L.L.C. or any of its Subsidiaries, provided that
Executive (or his guardian or personal representative) certifies to his
knowledge of the existence of any such claims as of the date of such release;
(c) claims with respect to the repurchase price or repurchase procedure of any
of Executive's equity, or (d) the rights of the Executive arising from breaches
after the date hereof of any agreement to which the Executive and such Released
Person are a party.
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