SEVERANCE AND NON-COMPETITION AGREEMENT
Amended Agreement made as of the 16th day of July, 1999,
between Maritrans General Partner Inc., a Delaware corporation (the "Company"),
and Xxxx X. Xxxxx (the "Employee").
WHEREAS, the Employee is employed by the Company as
President of Maritrans General Partner L.P.;
WHEREAS, the Company is a subsidiary of Maritrans Inc., a
publicly traded corporation ("Maritrans");
WHEREAS, the Employee and Maritrans entered into a
Severance and Non-competition Agreement on July 7, 1997 to provide certain
payments to the Employee in the event that her employment were terminated,
including as a result of a Change of Control of Maritrans (the "Agreement");
WHEREAS, the Employee and the Company now wish to revise
the Agreement; and
WHEREAS, in consideration for the Employee agreeing not to
compete with the Company in the event the Employee's employment is terminated,
the Company agrees that the Employee shall receive the compensation set forth in
this Agreement as a cushion against the financial and career impact on the
Employee in the event the Employee's employment with the Company is terminated
without cause whether or not there is a Change of Control of Maritrans;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Definitions. For all purposes of this Agreement, the
following terms shall have the meanings specified in this Section unless the
context clearly otherwise requires:
(a) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b) "Base Compensation" shall mean the sum of the
Employee's base salary, at the rate in effect on the Termination Date or at the
time of a Change of Control, if higher, the Employee's annual bonus as paid for
the year prior to the Termination Date and, if applicable, any payment received
under the Company's Performance Unit Plan in the year prior to the year in which
the Termination Date occurs, together with any and all salary reduction
authorized amounts under any of the Company's benefit plans or programs, but
excluding any amounts attributable to the exercise of stock options by the
Employee under the Company's Equity Compensation Plan.
(c) "Beneficial Owner" of any securities shall mean:
(i) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such right
is exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise, securities of the Company; provided, however, that a Person shall not
be deemed the "Beneficial Owner" of securities tendered pursuant to a tender or
exchange offer made by such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for payment, purchase or
exchange;
(ii) that such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right to vote or dispose of or
has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the Exchange Act), including without
limitation pursuant to any agreement, arrangement or understanding, whether or
not in writing; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of any security under this subsection (ii) as a result of an
oral or written agreement, arrangement or understanding to vote such security if
such agreement, arrangement or understanding (A) arises solely from a revocable
proxy given in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable provisions of the General Rules and
Regulations under the Exchange Act, and (B) is not then reportable by such
Person on Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iii) where voting securities are beneficially owned,
directly or indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person (or any of such Person's Affiliates or
Associates) has any agreement, arrangement or understanding (whether or not in
writing) for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subsection (ii) above) or
disposing of any voting securities of the Company; provided, however, that
nothing in this subsection (d) shall cause a Person engaged in business as an
underwriter of securities to be the "Beneficial Owner" of any securities
acquired through such Person's participation in good faith in a firm commitment
underwriting until the expiration of forty days after the date of such
acquisition.
(d) "Board" shall mean the board of directors of the
Company.
(e) "Cause" shall mean 1) misappropriation of funds, 2)
habitual insobriety or substance abuse, 3) conviction of a crime involving moral
turpitude, 4) gross negligence in the performance of duties, which gross
negligence has had a material adverse effect on the business, operations,
assets, properties or financial condition of the Company and its Subsidiaries
taken as a whole.
(f) "Change of Control" shall be deemed to have taken
place if (i) any Person (except the Company or any employee benefit plan of the
Company or of any Affiliate, any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any such employee
benefit plan), together with all Affiliates and Associates of such Person, shall
become the Beneficial Owner in the aggregate of 20% or more of the common stock
of Maritrans then outstanding); provided, however, that no "Change of Control"
shall be deemed to occur during any period in which any such Person, and its
Affiliates and Associates, are bound by the terms of a standstill agreement
under which such parties have agreed not to acquire more than 30% of the common
stock of the Company of the Common Stock of the Company then outstanding or to
solicit proxies, (ii) during any twenty-four month period, individuals who at
the beginning of such period constituted the board of directors of Maritrans
cease for any reason to constitute a majority thereof, unless the election, or
the nomination for election by the Maritrans' shareholders, of at least
seventy-five percent of the directors who were not directors at the beginning of
such period was approved by a vote of at least seventy-five percent of the
directors in office at the time of such election or nomination who were
directors at the beginning of such period, (iii) consummation by Maritrans of a
reorganization, merger or consolidation (a "Business Combination"), in each
case, with respect to which all or substantially all of the individuals and
entities who were the respective beneficial owners of the outstanding common
stock of Maritrans prior to such Business Combination do not, following such
Business Combination, beneficially own, directly or indirectly, more than 50% of
the then outstanding shares of common stock entitled to vote generally in the
election of directors of the corporation, business trust or other entity
resulting from or being the surviving entity in such Business Combination in
substantially the same proportion as their ownership immediately prior to such
Business Combination of the outstanding common stock or Maritrans, or (iv)
consummation of a complete liquidation or dissolution of Maritrans or sale or
other disposition of all or substantially all of the assets of Maritrans other
than to a corporation, business trust or other entity with respect to which,
following such sale or disposition, more than 50% of the then outstanding shares
of common stock entitled to vote generally in the election of directors, is then
owned beneficially, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners of the outstanding
common stock of Maritrans immediately prior to such sale or disposition in
substantially the same proportion as their ownership of the outstanding common
stock immediately prior to such sale or disposition.
(g) "Normal Retirement Date" shall mean the first day of
the calendar month coincident with or next following the Employee's 65th
birthday.
(h) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(i) "Subsidiary" shall have the meaning ascribed to such
term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
(j) "Termination Date" shall mean the date of receipt of
the Notice of Termination described in Section 2 hereof or any later date
specified therein, as the case may be.
(k) "Termination of Employment" shall mean the termination
of the Employee's actual
employment relationship with the Company.
(l) "Termination following a Change of Control" shall mean
a Termination of Employment within two years after a Change of Control either:
(i) initiated by the Company for any reason other than (x)
the Employee's continuous illness, injury or incapacity for a period of six
consecutive months or (y) for "Cause;" or
(ii) initiated by the Employee upon one or more of the
following occurrences:
(A) any failure of the Company to comply with and satisfy
any of the terms of this Agreement;
(B) any significant reduction by the Company of the
authority, duties or responsibilities of the Employee;
(C) any removal by the Company of the Employee from the
employment grade, compensation level or officer positions
which the Employee holds as of the effective date hereof
except in connection with promotions to higher office;
(D) the requirement that the Employee undertake business
travel to an extent substantially greater than is
reasonable and customary for the position the Employee
holds; or
(E) a transfer of the Employee, without her express
written consent, to a location that is outside the
metropolitan Philadelphia area (fifty miles surrounding
the Company's principal location as of the date hereof),
or the general area in which her principal place of
business immediately preceding the Change of Control may
be located at such time if other than metropolitan
Philadelphia.
(F) the current Chief Executive Officer has also
terminated his employment due to the Change of Control.
2. Notice of Termination. Any Termination of Employment
shall be communicated by a Notice of Termination to the other party hereto given
in accordance with Section 14 hereof. For purposes of this Agreement, a "Notice
of Termination" means a written notice which (i) indicates the specific reasons
for the termination, (ii) briefly summarizes the facts and circumstances deemed
to provide a basis for termination of the Employee's employment, and (iii) if
the Termination Date is other than the date of receipt of such notice, specifies
the Termination Date (which date shall not be more than 15 days after the giving
of such notice).
3. Severance Compensation upon Termination. (a) In the
event of the Employee's involuntary Termination of Employment for reason other
than Cause, the Company shall continue to pay to the Employee, upon the
execution of a release substantially in the form being used by the Company,
prior to a Change of Control, for terminating executives, an amount equal to her
Base Compensation, subject to customary employment taxes and deductions, for 12
months following her Termination Date but all other benefit coverages (except as
specified by law or regulation), retirement benefits and fringe benefit
eligibility shall cease upon the Termination Date.
(b) Subject to the provisions of Section 11 hereof, in the
event of the Employee's Termination following a Change of Control or in the
event that a Change of Control occurs within six months after a Termination of
Employment requiring a payment under subsection (a), the Company shall pay to
the Employee, within 30 days after the Termination Date (or as soon as possible
thereafter in the event that the procedures set forth in Section 11(b) hereof
cannot be completed within 30 days or payments have already commenced under
subsection (a) above), and in lieu of, or reduced by, as applicable any payment
under subsection (a) above, a single sum in cash equal to 1.99 times the
Employee's Base Compensation.
(c) In the event the Employee's Normal Retirement Date
would occur prior to 24 months after the Termination Date, the aggregate cash
amount determined as set forth in (a) or (b) above shall be reduced by
multiplying it by a fraction, the numerator of which shall be the number of days
from the Termination Date to the Employee's Normal Retirement Date and the
denominator of which shall be 730.
(d) As additional consideration for the non-competition
and non-solicitation covenants contained in Sections 12 and 13, (i) if payments
are made under subsection (a) above, an amount equal to her Base Compensation,
subject to customary employment taxes and deductions, for 12 months following
her Termination Date, or (ii) if payments are made under subsection (b) above, a
single cash payment, within 30 days after the effective date of the Termination
of Employment, equal to Employee's Base Compensation.
4. Other Payments. The payment due under Section 3 hereof
shall be in addition to and not in lieu of any payments or benefits due to the
Employee under any other plan, policy or program of the Company except that no
payments shall be due to the Employee under the Company's then severance pay
plan for employees.
5. Establishment of Trust. The Company may establish an
irrevocable trust fund pursuant to a trust agreement to hold assets to satisfy
its obligations hereunder. Funding of such trust fund shall be subject to the
Company's discretion, as set forth in the agreement pursuant to which the fund
will be established.
6. Enforcement.
(a) In the event that the Company shall fail or refuse to
make payment of any amounts due the Employee under Sections 3(b) and 4 hereof
within the respective time periods provided therein, the Company shall pay to
the Employee, in addition to the payment of any other sums provided in this
Agreement, interest, compounded daily, on any amount remaining unpaid from the
date payment is required under Section 3(b) and 4, as appropriate, until paid to
the Employee, at the rate from time to time announced by Mellon Bank (East) as
its "prime rate" plus 2%, each change in such rate to take effect on the
effective date of the change in such prime rate.
(b) It is the intent of the parties that the Employee not
be required to incur any expenses associated with the enforcement of her rights
under Section 3(b) of this Agreement by arbitration, litigation or other legal
action because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Employee hereunder. Accordingly, the
Company shall pay the Employee on demand the amount necessary to reimburse the
Employee in full for all expenses (including all attorneys' fees and legal
expenses) incurred by the Employee in enforcing any of the obligations of the
Company under this Agreement.
7. No Mitigation. The Employee shall not be required to
mitigate the amount of any payment or benefit provided for in this Agreement by
seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for herein be reduced by any compensation earned by other
employment or otherwise.
8. Non-exclusivity of Rights. Nothing in this Agreement
shall prevent or limit the Employee's continuing or future participation in or
rights under any benefit, bonus, incentive or other plan or program provided by
the Company or any of its Subsidiaries or Affiliates and for which the Employee
may qualify; provided, however, that the Employee hereby waives the Employee's
right to receive any payments under any severance pay plan or similar program
applicable to other employees of the Company.
9. No Set-Off. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Employee or others.
10. Taxes. Any payment required under this Agreement shall
be subject to all requirements of the law with regard to the withholding of
taxes, filing, making of reports and the like, and the Company shall use its
best efforts to satisfy promptly all such requirements.
11. Certain Reduction of Payments.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event that it shall be determined that any payment or
distribution by the Company to or for the benefit of the Employee, whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would constitute an "excess parachute
payment" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), and that it would be economically advantageous to
the Employee to reduce the Payment to avoid or reduce the taxation of excess
parachute payments under Section 4999 of the Code, the aggregate present value
of amounts payable or distributable to or for the benefit of the Employee
pursuant to this Agreement (such payments or distributions pursuant to this
Agreement are hereinafter referred to as "Agreement Payments") shall be reduced
(but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an
amount expressed in present value which maximizes the aggregate present value of
Agreement Payments without causing any Payment to be subject to the taxation
under Section 4999 of the Code. For purposes of this Section 11, present value
shall be determined in accordance with Section 280G(d)(4) of the Code.
(b) All determinations to be made under this Section 11
shall be made by Ernst & Young (or the Company's independent public accountant
immediately prior to the Change of Control if other than Ernst & Young (the
"Accounting Firm")), which firm shall provide its determinations and any
supporting calculations both to the Company and the Employee within 10 days of
the Termination Date. Any such determination by the Accounting Firm shall be
binding upon the Company and the Employee. The Employee shall in her sole
discretion determine which and how much of the Agreement Payments shall be
eliminated or reduced consistent with the requirements of this Section. Within
five days after the Employee's determination, the Company shall pay (or cause to
be paid) or distribute (or cause to be distributed) to or for the benefit of the
Employee such amounts as are then due to the Employee under this Agreement.
(c) As a result of the uncertainty in the application of
Section 280G of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Agreement Payments, as the case
may be, will have been made by the Company which should not have been made
("Overpayment") or that additional Agreement Payments which have not been made
by the Company could have been made ("Underpayment"), in each case, consistent
with the calculations required to be made hereunder. Within two years after the
Termination of Employment, the Accounting Firm shall review the determination
made by it pursuant to the preceding paragraph. In the event that the Accounting
Firm determines that an Overpayment has been made, any such Overpayment shall be
treated for all purposes as a loan to the Employee which the Employee shall
repay to the Company together with interest at the applicable Federal rate
provided for in Section 7872(f)(2) of the Code (the "Federal Rate"); provided,
however, that no amount shall be payable by the Employee to the Company if and
to the extent such payment would not reduce the amount which is subject to
taxation under Section 4999 of the Code. In the event that the Accounting Firm
determines that an Underpayment has occurred, any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Employee together with
interest at the Federal Rate.
(d) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in subsections (b) and (c) above shall
be borne solely by the Company. The Company agrees to indemnify and hold
harmless the Accounting Firm of and from any and all claims, damages and
expenses resulting from or relating to its determinations pursuant to
subsections (b) and (c) above, except for claims, damages or expenses resulting
from the gross negligence or willful misconduct of the Accounting Firm.
12. Confidential Information. The Employee recognizes and
acknowledges that, by reason of her employment by and service to the Company, he
has had and will continue to have access to confidential information of the
Company and its affiliates, including, without limitation, information and
knowledge pertaining to products and services offered, innovations, designs,
ideas, plans, trade secrets, proprietary information, distribution and sales
methods and systems, sales and profit figures, customer and client lists, and
relationships between the Company and its affiliates and other distributors,
customers, clients, suppliers and others who have business dealings with the
Company and its affiliates ("Confidential Information"). The Employee
acknowledges that such Confidential Information is a valuable and unique asset
and covenants that he will not, either during or after her employment by the
Company, disclose any such Confidential Information to any person for any reason
whatsoever without the prior written authorization of the Board, unless such
information is in the public domain through no fault of the Employee or except
as may be required by law.
13. Non-Competition.
(a) During her employment by the Company and for a period
of one year thereafter, the Employee will not, unless acting with the prior
written consent of the Board, directly or indirectly, own, manage, operate,
join, control, finance or participate in the ownership, management, operation,
control or financing of, or be connected as an officer, director, employee,
partner, principal, agent, representative, consultant or otherwise with or use
or permit her name to be used in connection with, any business or enterprise
engaged in a geographic area in which the Company or any of its affiliates is
operating either during her employment by the Company or on the Termination
Date, as applicable, presently on the East Coast of the United States or at any
port in the Gulf of Mexico (whether or not such business is physically located
within those areas) (the "Geographic Area"), in any business that is a customer
of, competitive to, a business from which the Company or any of its affiliates
derive at least five percent of its respective gross revenues either during her
employment by the Company or on the Termination Date, as applicable. It is
recognized by the Employee that the business of the Company and its affiliates
and the Employee's connection therewith is or will be involved in activity
throughout the Geographic Area, and that more limited geographical limitations
on this non-competition covenant are therefore not appropriate. The Employee
also shall not, directly or indirectly, during such one-year period (a) solicit
or divert business from, or attempt to convert any client, account or customer
of the Company or any of its affiliates, whether existing at the date hereof or
acquired during Employee's employment nor (b) following Employee's employment,
solicit or attempt to hire any then employee of the Employer or of any of its
affiliates.
(b) The foregoing restriction shall not be construed to
prohibit the ownership by the Employee of less than one percent (1%) of any
class of securities of any corporation which is engaged in any of the foregoing
businesses having a class of securities registered pursuant to the Securities
Exchange Act of 1934, provided that such ownership represents a passive
investment and that neither the Employee nor any group of persons including
Employee in any way, either directly or indirectly, manages or exercises control
of any such corporation, guarantees any of its financial obligations, otherwise
takes any part in its business, other than exercising her rights as a
shareholder, or seeks to do any of the foregoing.
14. Equitable Relief.
(a) Employee acknowledges that the restrictions contained
in Sections 12 and 13 hereof are reasonable and necessary to protect the
legitimate interests of the Company and its affiliates, that the Company would
not have entered into this Agreement in the absence of such restrictions, and
that any violation of any provision of those Sections will result in irreparable
injury to the Company. The Employee represents that her experience and
capabilities are such that the restrictions contained in Section 13 hereof will
not prevent the Employee from obtaining employment or otherwise earning a living
at the same general level of economic benefit as anticipated by this Agreement.
The Employee further represents and acknowledges that (i) he has been advised by
the Company to consult her own legal counsel in respect of this Agreement, and
(ii) that he has had full opportunity, prior to execution of this Agreement, to
review thoroughly this Agreement with her counsel.
(b) The Employee agrees that the Company shall be entitled
to preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of Sections 12 or 13 hereof, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled. In the event that any of the provisions of
Sections 12 or 13 hereof should ever be adjudicated to exceed the time,
geographic, service, or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, service, or other limitations permitted by
applicable law.
(c) The Employee irrevocably and unconditionally (i)
agrees that any suit, action or other legal proceeding arising out of Section 12
or 13 hereof, including without limitation, any action commenced by the Company
for preliminary and permanent injunctive relief or other equitable relief, may
be brought in the United States District Court for the Eastern District of
Pennsylvania, or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in Philadelphia County,
Pennsylvania, (ii) consents to the non-exclusive jurisdiction of any such court
in any such suit, action or proceeding, and (iii) waives any objection which
Employee may have to the laying of venue of any such suit, action or proceeding
in any such court. Employee also irrevocably and unconditionally consents to the
service of any process, pleadings, notices or other papers in a manner permitted
by the notice provisions of Section 17 hereof.
(d) Employee agrees that he will provide, and that the
Company may similarly provide, a copy of Sections 12 and 13 hereof to any
business or enterprise (i) which he may directly or indirectly own, manage,
operate, finance, join, control or participate in the ownership, management,
operation, financing, control or control of, or (ii) with which he may be
connected with as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise, or in connection with which he may use
or permit him name to be used; provided, however, that this provision shall not
apply in respect of Section 3 hereof after expiration of the time period set
forth therein.
15. Term of Agreement. The term of this Agreement shall be
for two years from the date hereof and shall be automatically renewed for
successive one-year periods unless the Company notifies the Employee in writing
that this Agreement will not be renewed at least sixty days prior to the end of
the current term; provided, however, that (i) a failure of the Company to renew
at a time when the Employee is employed by the Company shall constitute an
involuntary Termination of Employment entitling the Employee to terminate
employment from the Company and to the payments provided by Section 3(a) unless
the Employee elects, within 30 days after a non-renewal, to continue employment
and, thereby, waive such payments in connection with the failure to renew, (ii)
after a Change of Control during the term of this Agreement, this Agreement
shall remain in effect until all of the obligations of the parties hereunder are
satisfied or have expired, and (iii) this Agreement shall terminate if, prior to
a Change of Control, the employment of the Employee with the Company or any of
its Subsidiaries, as the case may be, shall terminate for any reason, or the
Employee shall cease to be an Employee, except as provided in clause (i) or in
Section 3(b).
16. Successor Company. The Company shall require any
successor or successors (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement in form and substance satisfactory to the
Employee, to acknowledge expressly that this Agreement is binding upon and
enforceable against the Company in accordance with the terms hereof, and to
become jointly and severally obligated with the Company to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession or successions had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement. As used in this
Agreement, the Company shall mean the Company as hereinbefore defined and any
such successor or successors to its business and/or assets, jointly and
severally.
17. Notice. All notices and other communications required
or permitted hereunder or necessary or convenient in connection herewith shall
be in writing and shall be delivered personally or mailed by registered or
certified mail, return receipt requested, or by overnight express courier
service, as follows:
If to the Company, to:
Maritrans Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Corporate Secretary
If to the Employee, to:
Xxxx X. Xxxxx
0 Xxxxxxx Xxxx
Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
or to such other names or addresses as the Company or the Employee, as the case
may be, shall designate by notice to the other party hereto in the manner
specified in this Section; provided, however, that if no such notice is given by
the Company following a Change of Control, notice at the last address of the
Company or to any successor pursuant to Section 16 hereof shall be deemed
sufficient for the purposes hereof. Any such notice shall be deemed delivered
and effective when received in the case of personal delivery, five days after
deposit, postage prepaid, with the U.S. Postal Service in the case of registered
or certified mail, or on the next business day in the case of overnight express
courier service.
18. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the Commonwealth of Pennsylvania without giving
effect to any conflict of laws provisions.
19. Contents of Agreement, Amendment and Assignment.
(a) This Agreement supersedes all prior agreements, sets
forth the entire understanding between the parties hereto with respect to the
subject matter hereof and cannot be changed, modified, extended or terminated
except upon written amendment executed by the Employee and approved by the Board
and executed on the Company's behalf by a duly authorized officer. The
provisions of this Agreement may provide for payments to the Employee under
certain compensation or bonus plans under circumstances where such plans would
not provide for payment thereof. It is the specific intention of the parties
that the provisions of this Agreement shall supersede any provisions to the
contrary in such plans, and such plans shall be deemed to have been amended to
correspond with this Agreement without further action by the Company or the
Board.
(b) Nothing in this Agreement shall be construed as giving
the Employee any right to be retained in the employ of the Company.
(c) All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties hereto,
except that the duties and responsibilities of the Employee and the Company
hereunder shall not be assignable in whole or in part by the Company.
20. Severability. If any provision of this Agreement or
application thereof to anyone or under any circumstances shall be determined to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application.
21. Remedies Cumulative; No Waiver. No right conferred
upon the Employee by this Agreement is intended to be exclusive of any other
right or remedy, and each and every such right or remedy shall be cumulative and
shall be in addition to any other right or remedy given hereunder or now or
hereafter existing at law or in equity. No delay or omission by the Employee in
exercising any right, remedy or power hereunder or existing at law or in equity
shall be construed as a waiver thereof, including, without limitation, any delay
by the Employee in delivering a Notice of Termination pursuant to Section 2
hereof after an event has occurred which would, if the Employee had resigned,
have constituted a Termination following a Change of Control pursuant to Section
1(l)(ii) of this Agreement.
22. Miscellaneous. All section headings are for
convenience only. This Agreement may be executed in several counterparts, each
of which is an original. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the other
counterparts.
23. Termination of Agreement. This Agreement shall
supersede and replace the Agreement which shall hereafter be null and void and
of no further force and effect.
IN WITNESS WHEREOF, the undersigned, intending to be
legally bound, have executed this Agreement as of the date first above written.
Attest: Maritrans General Partner Inc.
[Seal]
By /s/ Xxxxxx X. Xxxxxxxxx
_______________________ ---------------------------
Secretary
/s/ Xxxxxx X. Xxxxxxxxxxx /s/ Xxxx X. Xxxxx
--------------------------- -----------------
Witness Xxxx X. Xxxxx
