Exhibit 10.9
EMPLOYMENT, SEVERANCE AND NON-COMPETITION AGREEMENT
Amended Agreement made as of the 14 day of December, 2001, between
Maritrans Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxx Xxxx
(the "Employee").
WHEREAS, the Employee is employed pursuant to an Agreement last
executed as of June 4, 1999 by Maritrans General Partner Inc. and the Employee,
which Agreement was assumed by the Company when Employee became Senior Vice
President -Maritrans Inc.;
WHEREAS, the Employee and the Company now wish to revise the Agreement,
to be effective as of January 1, 2002, pursuant to which the Employee shall
cease to be a Senior Vice President of the Company and may reduce her time
commitment to the Company in exchange for a reduced level of compensation;
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 Employee's base salary, in the
amount paid to the Employee by the Company for the 12-month period ending on the
Termination Date or the time of a Change of Control, if higher, together with
any and all salary reduction authorized amounts under any of the Company's
benefit plans or programs, but excluding any long-term or short term incentive
payments and 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) "Term " shall mean the 12 month period commencing January 1, 2002,
and each renewal thereof pursuant to Section 15 below.
(k) "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.
(l) "Termination of Employment" shall mean the termination of the
Employee's actual employment relationship with the Company.
(m) "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 Tampa 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 Tampa.
(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. Employment and Severance Compensation upon Termination. (a) During
the Term, the Employee shall be continue in her current employment with the
Company except that she shall no longer be a Senior Vice President of the
Company, but instead shall continue only in the capacity of Business Leader and
Secretary of the Corporation, and, without her consent, she shall not be
required to render more than 138 days of service to the Company during any Term.
The Employee's base salary shall be determined on the basis of the number of
days actually worked for the Company and a daily rate of $920, to be adjusted
from time to time in accordance with salary programs afforded other executives.
Employee shall be obligated to account for her time to the Company in such form
as it prescribes for timekeeping purposes. Employee shall be entitled to
standard employee benefits, including retirement and welfare benefits, four
weeks of vacation and up to five days of external training or self-improvement
courses), but shall not be entitled to participate further in the Company's
annual incentive or long-term incentive plans; provided, however that the
Employee shall continue to be credited with service for vesting purposes under
the Equity Compensation Plan of the Company for 12 months following a
Termination of Employment, shall be eligible to exercise all vested options
during that 12 month-period and shall continue to be eligible for payments under
the Company's Performance Unit Plan for the balance of the current performance
period, as described in that Plan.
(b) In the event of the Employee's involuntary Termination of
Employment, for reason other than Cause, during a Term, the Company shall
continue to pay to the Employee, upon the execution and non-revocation 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. No payments shall be due
under this paragraph if this Agreement is not renewed at the end of a Term.
(b) Subject to the provisions of Section 11 hereof, and conditioned
upon the execution and non-revocation of the release described in paragraph (a),
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 or there is no renewal of the Term, 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 Suntrust 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 his 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 his employment by and service to the Company, she 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 she
will not, either during or after his 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) she has been advised by the Company
to consult her own legal counsel in respect of this Agreement, and (ii) that she
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 Northern District of
Florida, or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in Tampa, Florida, (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 she will provide, and that the Company may
similarly provide, a copy of Sections 12 and 13 hereof to any business or
enterprise (i) which she 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 she may be connected with
as an officer, director, employee, partner, principal, agent, representative,
consultant or otherwise, or in connection with which she may use or permit her
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 one year
from the date hereof and shall, with mutual consent, be automatically renewed
for successive one-year periods. If either party does not wish to renew, it must
notify the other party 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) 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.
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx
Xxxxx 0000 Xxxxx, XX 00000
Attention: Chief Executive Officer
If to the Employee, to:
Xxxxxx X. Xxx Xxxx
0000 Xxxxx Xxx
Xxxxx, 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 state of Florida, 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. Arbitration. The Company and the Employee mutually consent to the
resolution by arbitration, in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association, to be
held in Tampa, Florida, of all claims or controversies arising out of the
Employee's employment (or its termination) that the Company may have against the
Employee or that the Employee may have against the Company or against its
officers, directors, shareholders, employees or agents in their capacity as such
other than a claim which is primarily for an injunction or other equitable
relief. The Company shall pay the fees and costs of the arbitrator and each
party shall bear all other of its or her costs in connection with any
arbitration, including reasonable legal fee and expenses.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first above written.
Attest: Maritrans Inc.
[Seal]
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
----------------- -------------------
Secretary Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxx Xxxx
--------------------- -------------------
Witness Xxxxxx X. Xxx Xxxx
