Exhibit 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated June 14, 1996 is
by and between MOUNTBATTEN, INC., a Pennsylvania corporation ("Corporation"),
and XXXX X. XXXXXXXXX, an individual residing at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx
Xxxx, XX 00000 ("Employee"). In consideration of the mutual promises contained
herein, and intending to be legally bound hereby, Corporation and Employee agree
as follows:
1. Employment
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Corporation employs Employee under an Employment Agreement dated April
21, 1995, and desires to continue such employment on the amended terms set forth
in this Restated Agreement. Employee shall continue to serve as Vice
President-Finance and Treasurer of the Corporation or any of its affiliates
(collectively referred to as the "Corporation") on the terms set forth in this
Agreement, and Employee hereby accepts employment on such terms.
2. Compensation
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In consideration of the services rendered by Employee to Corporation
hereunder, Corporation shall pay to Employee a salary at the monthly rate of
$9,166.67, payable at the times of Corporation's regular payrolls or as
otherwise agreed by Corporation and Employee. The Corporation shall review
Employee's performance at least annually.
3. Expenses
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Corporation shall reimburse Employee for all expenses reasonably
incurred by him in carrying out his duties hereunder, upon presentation to
Corporation by Employee, from time to time, of an itemized account of such
expenses together with such receipts and forms as are required pursuant to
Corporation's normal policies and practices.
4. Duties
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During the term of his employment hereunder, Employee shall report to
the President of the Corporation and perform duties as assigned to him by the
President or the Board of Directors in his capacity as Vice President-Finance
and Treasurer. Employee shall devote his full time, energy, skill and best
efforts to promote the business and affairs of the Corporation. Except as herein
provided, Employee agrees that during his employment hereunder he will not be
employed by, participate or engage in or take part in any manner, directly or
indirectly, in the affairs of any other business enterprise or occupation
without approval of the President or the Board of Directors.
5. At-will Employment
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(a) Employee's employment with Corporation began on May 15, 1995 and
will continue until terminated as hereafter set forth.
(b) This Agreement and all of Employee's rights hereunder shall
terminate upon the death of Employee, and neither Employee nor his estate shall
have any further rights hereunder except for any unpaid compensation and
reimbursements through the date of death. Exercise of any stock options after
death shall be governed by the applicable plan(s) and option agreement(s).
(c) Employee's employment hereunder shall be "at will" and except as
set forth in paragraph (d) and (e) below, either party shall have the right to
terminate this Agreement at any time, pursuant to the following terms and
conditions:
(1) Corporation shall have the right to terminate
Employee's employment and rights to compensation hereunder by providing
to Employee either (a) five months' prior written notice of such
termination or (b) immediate notice of termination together with an
undertaking to continue payment of Employee's compensation under this
Agreement for five months, provided that Employee abides by all
obligations of his under this Agreement. Upon the effective date of
termination specified in such notice, this Agreement shall terminate
except for the provisions which expressly survive termination, and
Employee shall vacate the offices of the Corporation.
(2) Employee shall have the right to terminate his
employment hereunder by providing five months' written notice to the
President or the Board of Directors. Upon the effective date of
termination specified in such notice, this Agreement shall terminate
except for the provisions which expressly survive termination.
(d) Corporation shall have the right at any time upon prior
written notice immediately to terminate Employee's employment hereunder for just
cause. For the purpose of this Agreement, "termination for just cause" shall
mean termination only for personal dishonesty, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties (if Corporation gives Employee written notice thereof and he fails to
correct such failure within 30 days), willful violation of any law, rule or
regulation or final cease-and-desist order to be enforced by any regulatory
agency with jurisdiction over Corporation or any of its affiliates or material
breach of any provision of this Agreement (if Corporation gives Employee written
notice thereof and he fails to correct such failure within 30 days). For
purposes of this paragraph, no act or failure to act on the Employee's part
shall be considered "willful" or "intentional" unless done or omitted to be done
by him in bad faith and without reasonable belief that his action or omission
was in the best interest of Corporation; provided that any act or omission to
act on the Employee's behalf in reliance upon an opinion of counsel to
Corporation shall not be deemed to be willful or intentional. In the event
employment is terminated for just cause, Employee shall have no right to
compensation or other benefits for any period after such date of termination.
(e) Employee may terminate his employment hereunder for good
reason. For purposes of this Agreement, "good reason" shall mean any of the
following occurrences without Employee's express written consent within one year
subsequent to a change in control of the Corporation:
(1) the assignment to Employee of any duties
inconsistent with Employee's positions,
duties, responsibilities and status with the
Corporation;
(2) a change in Employee's reporting
responsibilities, titles or offices as in
effect immediately prior to a change in
control of the Corporation;
(3) any removal of Employee from, or any
failure to re-elect Employee to, any of such
positions, except in connection with a
termination of employment for just cause,
death, or retirement;
(4) a reduction by the Corporation in
Employee's annual salary as in effect
immediately prior to a change in control or
as the same may be increased from time to
time; or
(5) the failure of the Corporation to
continue effect any bonus, benefit or
compensation plan, life insurance plan,
health and accident plan or disability plan
in which Employee is participating at the
time of a change in control of the
Corporation, or the taking of any action by
the Corporation which would adversely affect
Employee's participation in or materially
reduce Employee's benefits under any such
plans.
(f) For purposes of this Agreement, a "change in control of
the Corporation" shall mean a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") whether or not the Corporation is then subject to such reporting
requirement; provided that, without limitation, such a change in control shall
be deemed to have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act in effect on the date first written above),
other than the Corporation or any "person" who on the date hereof is a director
or officer of the Corporation, is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing 25% or more of the combined voting power of the
Corporation's then outstanding securities, or (ii) during any period of two
consecutive years during the term of this Agreement, individuals who at the
beginning of such period constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority thereof, unless the
election of each director who was not a director at the beginning of such period
has been approved in advance by directors representing at least two-thirds of
the directors then in office who were directors at the beginning of the period.
(g) If Employee shall terminate his Employment for good reason
pursuant to paragraph (e) or if the Corporation terminates Employee other than
for just cause within one year after a change in control of the Corporation,
then in lieu of any further salary payments to Employee for periods subsequent
to the date of termination, the Corporation shall pay as severance to Employee
an amount equal to (i) the average aggregate annual compensation paid to the
Employee and includable in the Employee's gross income for federal income tax
purposes during the five calendar years preceding the taxable year in which the
date of termination occurs (or such lesser amount of time if the Employee has
not been employed by the Corporation for five years at the time of termination)
by the Corporation and any of its subsidiaries subject to United States income
tax, multiplied by (ii) 2.99, such payment to be made in a lump sum on or before
the fifth day following the date of termination; provided, however, that if the
lump sum severance payment under this paragraph, either alone or together with
other payments which the Employee has the right to receive from the Corporation,
would constitute an "excess parachute payment" as defined in Section 280G of the
Internal Revenue Code of 1986 (the "Code"), such that Employee has or may have
liability for any excise tax under Section 4999 of the Code, at the time payment
is due or at the time of determination that the same includes an "excess
parachute payment", whichever is later, that portion characterized as "excess"
shall be treated as a loan by the Corporation to the Employee, repayable on the
following terms: the principal shall be payable on the tenth annual anniversary
of the actual date of payment or the date of determination of the "excess",
whichever is later, with interest until paid, fixed at the applicable federal
rate in effect under Section 7872(f)(2) for the month in which such date occurs
and which shall accrue annually if not paid and thereupon be added to principal,
subject to the Employee's right to prepay interest or principal in whole or in
part at any time without premium or penalty. The determination of the amount of
any "excess parachute payment" shall be made by independent counsel to the
Corporation in consultation with the independent certified public accountants of
the Corporation. If for any reason the basis for termination of this Agreement
or payment of amounts under this paragraph is disputed by either party to this
Agreement or any other person or agency, then pending resolution of any such
dispute, within five days after the due date of such payment, the Corporation
shall deliver the entire amount calculated in accordance with this paragraph to
an independent trustee to hold in an interest-bearing account in trust for the
benefit of the Employee and the Corporation, whichever may be ultimately
entitled to the same. The trustee shall be a bank or savings institution (other
than the Corporation) with deposits of at least $50,000,000, unrelated to any
parties in the dispute, and disinterested in any transaction arising out of or
engendering the dispute. If the parties are unable to agree upon a trustee
within the foregoing time period, then either party may seek immediate relief
from a court of competent jurisdiction. In addition, the Corporation agrees that
Employee would have no adequate remedy at law for breach of the foregoing
obligations, and Employee shall be entitled to immediate injunctive and other
appropriate equitable relief to enforce the same.
6. Benefits; Stock Options
-----------------------
Corporation shall provide and Employee shall be entitled to
participate in all benefit plans and programs generally available to employees
of Corporation on the same terms as other employees. Corporation shall consider
Employee for a bonus for his efforts and based on the consolidated results of
operations of Corporation and its affiliates from year to year, all on such
terms and with such conditions and restrictions as may be determined by the
Board of Directors in its discretion. As promptly as practicable, Corporation
shall adopt a new Incentive Stock Option Plan and grant Employee qualified
incentive stock options exercisable for a period of ten years, to purchase up to
30,000 shares of Corporation's common stock (the "Shares") at an exercise price
equal to the fair market value on the date of grant, vesting as follows: an
option to purchase up to 20,000 Shares vesting at 20% per year over a period of
five years commencing on the first anniversary of this Agreement, and an option
to purchase up to 10,000 Shares vesting at 20% per year over a period of five
years commencing in January, 1996 upon satisfactory review of Employee's
performance by the Board of Directors at that time. In addition to the foregoing
options, Corporation shall also grant Employee as promptly as practicable a
nonqualified option to purchase up to 10,000 Shares at an exercise price equal
to the fair market value on the date of grant of the option, vesting 100%
immediately on the date of grant.
7. Automobile Allowance
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In addition to Employee's salary, Corporation shall pay to
Employee an automobile allowance of $700 per month payable on the first day of
each month, or in installments at the time of his salary payments, as the
Corporation may elect. This allowance is to cover expenses, direct and indirect
(including depreciation) of Employee for the use of his automobile while on
business of the Corporation, and is in lieu of payment or reimbursement for
mileage, insurance, lease costs, maintenance and repair costs, and any other
expenses incurred by Employee in connection with the operation, ownership and
use of his automobile. Other than this automobile allowance, Corporation shall
have no obligation or liability with respect to provision or use of Employee's
automobile.
8. Non-Disclosure; Non-Competition
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(a) At all times after the date hereof, including after
termination of this Agreement for any or no reason, Employee shall not, except
with the express prior written consent of the Board of Directors of the
Corporation, directly or indirectly, other than in the ordinary course of
business:
(1) communicate, disclose or divulge to any Person,
or use for his own benefit or the benefit of any Person, any knowledge
or information which he may have acquired, no matter from whom or in
what manner such knowledge or information may have been acquired,
heretofore or hereafter, concerning the conduct and details of the
business of Corporation or its shareholders, including, but not limited
to, names of insureds, insurers or agents, expiration dates of
policies, customers or prospective customers, suppliers, properties,
trade secrets, techniques, equipment, materials, premiums, costs,
marketing methods, operations, policies, prospects and financial
condition;
(2) solicit or induce, directly or indirectly, any
employee, consultant or other agent of the Corporation or any affiliate
to leave the employ of the Corporation or otherwise terminate the
relationship with the Corporation;
(3) for a period of six months after termination,
initiate or receive any contact with or otherwise deal with or have a
business relationship with any clients, insureds or others with
business relationships with the Corporation at the date of termination;
or
(4) make any statement which criticizes, denigrates
or otherwise reflects adversely on the Corporation.
(b) Employee hereby acknowledges that any breach by him of any
of the covenants contained in this paragraph 8 ("Covenants") will result in
irreparable injury to Corporation for which money damages could not adequately
compensate Corporation. In the event of any such breach, Corporation shall be
entitled, in addition to any other rights and remedies which it may have at law
or in equity, to have an injunction issued by any competent court enjoining and
restraining Employee or any other Person involved therein from continuing such
breach. The existence of any claim or cause of action which Employee or any such
other Person may have against Corporation shall not constitute a defense or bar
to the enforcement of any of the Covenants. If Corporation must resort to the
courts for enforcement of any of the Covenants, or if any of the Covenants is
otherwise the subject of litigation between Corporation and Employee or any such
other Person, then the term of any such Covenant which has a fixed term shall be
extended for a period of time equal to the period of such breach, commencing on
the date of a final court order (without further right of appeal) acknowledging
the validity of such Covenant.
(c) If any portion of the Covenants or the application thereof
is construed to be invalid or unenforceable, then the other portions of the
Covenants, and of all other terms of this Agreement, or the application thereof
shall not be affected thereby and shall be given full force and effect without
regard to the invalid or unenforceable portions. If any of the Covenants is
determined to be unenforceable because of the geographical area covered thereby,
the duration thereof or the scope thereof, then the court making such
determination shall have the power to reduce such area or duration, or to limit
such scope, and such Covenant shall then be enforceable in its reduced form.
(d) The provisions of this paragraph 8 are identical to those
of the original Agreement executed prior to the date Employee commenced his
employment with the Corporation.
9. Vacation
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Employee shall be entitled to four weeks' paid vacation per
calendar year, to be scheduled at the mutual convenience of Employee and
Corporation.
10. Notices
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All notices and other communication which are required or
permitted hereunder shall be given in writing and either delivered by hand or
mailed by certified mail, return receipt requested, postage prepaid, as follows:
(a) If to Employee, to:
Xx. Xxxx X. Xxxxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, XX 00000
(b) If to Corporation, to:
Mountbatten, Inc.
00 Xxxx Xxxx Xxxx
Xxxx Xxxxxx, XX 00000
11. Miscellaneous
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(a) This Agreement shall be binding upon, inure to the benefit
of, and be enforceable by the successors and assigns of Corporation and the
heirs, estate, personal representatives and beneficiaries of Employee. The
rights, obligations and duties of the Employee hereunder are personal and are
not assignable or delegable by him in any manner whatsoever.
(b) This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof, supersedes all prior
discussions, promises and representations and the Agreement dated April 21,
1995, and shall not be modified, terminated or any provisions waived orally,
including this clause.
(c) No failure to exercise, delay in exercising, or single or
partial exercise of any right, power or remedy hereunder shall preclude any
other or further exercise of the same or any other right, power or remedy.
(d) The headings of the paragraphs of this Agreement have been
inserted for convenience of reference only and shall not constitute a part of
this Agreement.
(e) This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania applicable to
contracts made and to be performed solely therein, and each party consents to
the exclusive jurisdiction and venue of the state and Federal courts of
Pennsylvania to resolve any disputes between the parties.
(f) Employee represents and warrants that he is under no
competition restriction or other restraint at the time of execution of this
Agreement which would prevent or hinder in any way his performance of duties
hereunder.
(g) As used herein, "Person" shall mean a natural person, sole
proprietorship, joint venture, partnership, corporation, association,
cooperative, trust, estate, government (or any branch, subdivision or agency
thereof), or any other entity.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first written above.
MOUNTBATTEN, INC. EMPLOYEE:
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxx, President Xxxx X. Xxxxxxxxx
