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EXHIBIT 10.N
EMPLOYMENT AGREEMENT
THIS AGREEMENT, effective as of the first day of September, 1996 by and
between SERVISTAR COAST TO COAST CORPORATION (the "Company"), a Pennsylvania
corporation with its principal offices located at East Butler, Pennsylvania,
and Xxxx X. Xxxxx ("Executive")
W I T N E S S E T H T H A T
WHEREAS, the Executive is and will be rendering valuable services to the
Company and it is the desire of the Company to have the benefit of his or her
continued loyalty to the Company, adherence to its policies and his or her
service and counsel; and
WHEREAS, Executive is willing to continue in the employment of the
Company;
NOW, THEREFORE, intending to be legally bound the parties hereto hereby
agree as follows:
1. Employment. The Company agrees to continue Executive in its employ and
Executive agrees to remain in the employ of the Company for the period stated
in Paragraph 3 hereof and upon the other terms and conditions herein provided.
2. Position and Responsibilities. The Company employs Executive and Executive
agrees to serve as a President and Chief Executive Officer of the Company, or
such other executive position as the Company may determine, for the term and on
the conditions hereinafter set forth. Executive agrees to perform such
services consistent with his or her position as shall be assigned to him by the
Company's Board of Directors and by the Company's President and Chief Executive
Officer. If elected, Executive shall, upon request, also serve as a director
or officer of any of the Company's subsidiaries or affiliated companies.
3. Terms and Duties.
(a) Term of Employment. The period of Executive's employment
under this Agreement shall commence as of the date hereof and shall
continue for a period of 24 full calendar months thereafter. Twelve
months prior to the end of the 24- month period, the Company agrees
to consider offering another employment agreement to Executive
substantially in accord with the terms hereof to commence at the end
of the original period. In the event that Executive continues in
full-time employ of the Company after the end of said 24-month
period without a new agreement between the parties, such employment
shall continue on a year-to-year basis unless 120 days written
notice is given prior to the expiration of the original or extended
term by one of the parties of their desire to terminate this
Agreement. Continuations are subject to the terms and conditions
herein.
(b) Duties. During the period of employment hereunder and except
for illness, reasonable vacation periods and reasonable leaves of
absence, Executive shall devote all his or her business time,
attention, skill and efforts and in conformity
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with the policies of the Company to the faithful performance and
trust of his or her duties hereunder; provided, however, that with
the approval of the Board of Directors of the Company, from time to
time, Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies
or organizations which, in such Board's judgment, will not present
any conflict of interest with the Company or any of its
subsidiaries or affiliates or divisions or materially affect the
performance of Executive's duties pursuant to this Agreement.
4. Compensation. For all services to be rendered by Executive in any capacity
during the period of his or her employment under this Agreement including
without limitation services as an executive, officer, director or member of any
committee of the Company or any subsidiary, affiliate or division thereof, the
Executive shall be paid as compensation:
(a) A base salary determined by the Board of Directors annually.
(b) Incentive compensation subject to the terms of the Company's
Executive Compensation Program or successor program (Compensation
Program) determined by the Board of Directors annually.
Such base salary shall be payable in accordance with the customary practices of
the Company, and any incentive compensation shall be payable as provided by the
terms and provisions of the Compensation Program.
5. Employee Benefits. The Company shall provide the Executive all benefits to
which other executives and employees of the Company are entitled, as are
commensurate with the Executive's position, subject to the eligibility
requirements and other provisions of such arrangements. Such benefits shall
include, but shall not be limited to, retirement benefits, group term life
insurance, comprehensive health and major medical insurance, dental and life
insurance, and disability insurance.
6. Reimbursement of Expenses. The Company shall pay or reimburse Executive for
all reasonable travel and other expenses incurred by Executive in performing
his or her obligations under this Agreement.
7. Benefits Payable upon Disability. In the event of the disability (as
hereinafter defined) of Executive, the Company shall pay Executive such
compensation and other benefits as are then provided under the Compensation
Program. As used in this Agreement the term "disability" shall mean the
complete inability of Executive to perform his or her duties under this
Agreement as determined by an independent physician selected with the approval
of the Board of Directors and Executive. In addition, the Company may
terminate Executive's employment under this Agreement in the event Executive is
disabled for a period exceeding twelve (12) months, in which event Executive
will be eligible for any disability insurance benefit then in effect.
8. Termination for Cause. The Company may terminate this Agreement "for cause"
upon the occurrence of the following events: (i) failure of executive to
diligently and conscientiously carry out the duties and obligations of his or
her offices and to adhere to the policies of the
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Company; (ii) conviction of an act of dishonesty, fraud, misappropriation or
embezzlement, or of any felony or crime involving moral turpitude; (iii)
willful and continuing insubordination or willful misconduct in performance of
Executive duties; (iv) breach by Executive of the obligations of this
Agreement; (v) conduct and actions by Executive which bring discredit upon the
Company or Executive or are inimical to the good conduct of the Company's
operations. Termination "For Cause" under the provisions of Paragraphs 8 (i),
(iv) or (v) herein require thirty (30) days written notice by the Company to
the Executive of the violations and an opportunity to cure such violations
within thirty (30) days, unless the Company determines that such violations are
not capable of being cured, in which case such written notice is not required.
9. Payments and Benefits to Executive Upon an Event of Termination.
(a) Termination. An "Event of Termination" shall mean and
include any of the following:
(1) The termination of Executive's employment by
reason of his or her death prior to the occurrence of any
other event of termination, or
(2) The termination by the Company of Executive's
full-time employment hereunder for any reason other than
pursuant to Paragraph 7 or Paragraph 8 above, or breach by
Executive of this Agreement, or
(3) Executive's resignation from the Company upon (i)
material reduction in total compensation opportunity, or (ii)
breach of this Agreement by the Company which has not been
remedied by the Company within thirty (30) days after notice
of the alleged breach. Upon the occurrence of any event
described in Clauses (i) or (ii)hereof, the Executive shall
have the right to elect to terminate his or her employment
under this Agreement by resignation upon not less than 60 days
prior written notice given within four calendar months after
any such event.
(b) Continuation of Benefits. Upon the occurrence of an Event of
Termination other than the death of Executive, the Company shall
grant to Executive (or in the event of his or her death during the
severance period as described below, to the beneficiary or
beneficiaries of his or her estate), as severance pay or liquidated
damages, or both, the following benefits:
(1) Full salary for a severance period of fifty-two
(52) weeks commencing on the effective date of termination
("Severance Period") and one-half of full salary after such
Severance Period for any remaining term of this Agreement.
(2) During the Severance Period normal bonus shall be
awarded at 100 percent of Executive's performance, actual
company performance, and with actual affordability factor
applied. Bonus will be paid at the normal time of issuance
during the Severance Period and at the normal time of issuance
for the prorated portion of the final bonus year. The
long-term
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incentive award will be paid on a prorated basis for the
actual time worked plus the Severance Period; provided,
however, that no long term incentive shall be paid with
respect to any new long term incentive program or cycle that
commences after the effective date of the termination.
Payment will be made based on actual company performance at
the normal time for payment.
(3) The transfer of title to Executive of the Company
car (if any) in use by the Executive at the time of
termination.
(4) The continuation of maturity of Capital Income
opportunities during such Severance Period with payment for
such opportunities to be made to Executive at end of such
Severance Period.
(5) Continued coverage of Executive and payment of
premiums by the Company of Corporate Officer Life Insurance or
comparable plan for Severance Period in the amount in effect
at date of termination.
(6) All such benefits as are provided under the
Compensation Program for Early Retirement, (if any) as in
effect at the date of termination.
(7) In addition, the Board of Directors at its sole
discretion may grant any additional benefit or compensation as
it deems reasonably appropriate.
(c) Benefits Payable upon Death of Executive. Upon the
occurrence of any Event of Termination due to the death of
Executive, the beneficiary or beneficiaries of his or her estate, as
the case may be, shall receive the same benefits as granted to
Executive under this Paragraph 9 (b) (1), (2), (3), (4), (6) and
(7). For the purposes of construing this Paragraph 9 (c), the words
"beneficiary or beneficiaries of his or her estate" shall be limited
to: (i) Executive's wife and/or issue, or (ii) a Trust established
by Executive for the benefit of Executive's wife and/or issue. Upon
the death of Executive's wife and all issue, benefits under this
Paragraph 9 (c) shall cease immediately.
(d) Inapplicability of Payments. Executive shall not be entitled
to the payments and benefits described in this Agreement if the
Executive is terminated "For Cause" (as described in Paragraph 8
hereof) of if Executive retires or resigns for any reason other than
those specified in Paragraph 9(a)(3) hereof.
10. Obligations and Restrictions under Agreement.
(a) Noncompetition. During the term of his or her employment
hereunder and for two years following termination of employment
(unless termination is without cause or constitutes a breach of this
Agreement by the Company), Executive shall not, in any state in
which the Company or any subsidiary or affiliate is doing business
or has customers, directly or indirectly own, manage, operate, join,
control or participate in or be connected with as an officer,
employee, partner,
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stockholder, or otherwise, any business, individual, partnership,
firm or corporation which is at the time engaged principally or
significantly in the various businesses of the Company or any
subsidiary or affiliate thereof. Nothing herein, however, shall
prohibit Executive from acquiring or holding any issue of stock or
securities of any company which has any securities listed on a
national securities exchange or quoted in the daily listing of
over-the-counter market securities, provided that at any one time
Executive and members of his or her immediate family do not own
more than five percent of the voting securities of any such
company. Executive acknowledges that the length and scope of this
restriction are reasonable for the protection of the Company based
upon Executive's access to confidential Company information, and
Executive's position in the Company and in the industry, and
warrants that such restrictions will not unreasonably interfere
with Executive's ability to earn a livelihood. Executive
acknowledges that a violation on his or her part of this
restriction cannot be fully remedied at law and agrees to the award
of injunctive relief in addition to legal remedies in event of such
violation.
(b) Confidential Information. Executive shall not, directly or
indirectly, at any time during the term of his or her employment
hereunder or thereafter and without regard to when or for what
reason such employment shall terminate, use or permit the use of any
trade secrets, customers' lists or other information of or relating
to the Company or any such subsidiary or affiliate and shall not
divulge such trade secrets, customers' lists and information to any
person, firm or corporation whatsoever except as may be necessary in
the performance of his or her duties hereunder or as may be required
by an applicable law or determination of any duly constituted
administrative agency.
(c) Failure to Comply. All payments and benefits to Executive
under this Agreement shall be subject to Executive's compliance with
the provisions of this Paragraph 10 and, if Executive fails to
comply reasonably with the provisions herein, his or her rights to
any future payments or other benefits hereunder shall terminate and
the Company's obligations to make such payments and provide such
benefits shall cease; provided, however, that no failure to comply
with any provision of this Paragraph 10 shall be deemed to have
occurred unless and until Executive receives written notice on
behalf of the Board of Directors of the Company specifying the
conduct alleged to constitute such failure.
(d) Termination of this Agreement by either party for any reason
shall not affect the obligations of Paragraph 10 (a) and (b) of this
Agreement after such termination.
11. Decisions by Company. The powers of the Board of Directors of the Company
may be exercised by a committee appointed by the Board and any such committee
shall have the general responsibility for the administration and interpretation
of this Agreement including determinations of compensation for purposes of
Paragraph 4, subject to approval of the Board of Directors.
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12. Effect of Prior Agreements. This Agreement contains the full understanding
between the parties hereto and supersedes any prior employment understandings
or agreements.
13. Consolidation, Merger or Sale of Assets. 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 which assumes
this Agreement and all obligations and understandings of the Company hereunder,
and this Agreement shall continue in full force and effect.
14. Continuation of Benefits. Nothing in the Agreement shall preclude the
Company from discontinuing, severing or revising its qualified pension plan,
qualified profit sharing plans and the Compensation Program. If any such plans
or Program is terminated or revised after termination hereof and while
Executive is entitled to benefits thereunder, the Company shall be deemed to
satisfy its obligations herein and thereunder if it provides such benefits to
Executive through alternative or successor programs or through compensation
funded plans and Executive is assured against any adverse tax consequences of
such programs.
15. Source of Payments. All payments provided under this Agreement shall be
paid in cash from the general funds of the Company and no special or separate
fund shall be established and no other segregation of assets shall be made to
assure payment. Executive shall have no right, title or interest whatever in
or to any investment which the Company may make to aid the Company in meeting
its obligations hereunder. Nothing contained in this Agreement and no action
taken pursuant to its provisions shall create or be construed to create a trust
of any kind or a fiduciary relationship between the Company and Executive or
any other person. To the extent that any person acquires a right to receive
payments from the Company hereunder, such right shall be no greater than the
right of an unsecured creditor of the Company.
16. Tax Withholding. The Company may withhold from any benefits payable under
this Agreement all Federal, state, local or other taxes as shall be required
pursuant to any law or governmental regulation or ruling.
17. General Provisions.
(a) Binding Agreement. This Agreement shall be binding upon, and
inure to the benefit of, Executive, and his or her successors and
the Company and its successors and assigns.
(b) No Attachment. Except as required by law, no right to
receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of
law; and any attempt, voluntary or involuntary, to effect any such
action shall be null, void and of no effect.
(c) Waiver. No term or condition of this Agreement shall be
deemed to have been waived nor shall there be any estoppel against
the enforcement of any provisions
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of this Agreement except by written instrument or the party charged
with waiver or estoppel.
(d) Amendment of Agreement. This Agreement may not be modified
or amended except by an instrument in writing signed by the parties
hereto.
(e) Severability. If, for any reason, any provision of this
Agreement is held invalid or is modified, such invalidity or
modification shall not affect any other provision of this Agreement
not held invalid and each such other provision shall continue in
full force and effect to the full extent consistent with law.
18. Governing Law. This Agreement has been executed and delivered in the
Commonwealth of Pennsylvania, and its validity, interpretation, performance and
enforcement shall be governed by the laws of the Commonwealth.
IN WITNESS WHEREOF, the Company has caused this Employment Agreement to be
executed and its seal to be affixed hereto by its duly authorized officers, and
Executive has signed this Agreement, all as of the day and year first above
written.
ATTEST: SERVISTAR COAST TO COAST CORPORATION
BY /s/ Xxxxx X. Xxxxx BY /s/ Xxxxx X. Xxxxx
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SECRETARY CHAIRMAN OF THE BOARD
WITNESS: EXECUTIVE
/s/ Xxxxx X. Xxxxx /s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
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