EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of ___________,1998, by and
between Specialty Products and Insulation Co. a Pennsylvania with an office at
0000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, XX (the "Company") and Xxxxxx X. Xxxx
an individual currently residing at ___________________________ (the
"Executive").
BACKGROUND
Irex Corporation, a Pennsylvania corporation ("Parent") owns 100% of the
issued and outstanding shares of common stock, par value $0.01 per share of the
Company (the "Common Stock"). Evercore Capital Partners, L.P. and Affiliates
("Evercore") desires to subscribe for, and the Company desires to issue shares
of the Common Stock pursuant to the terms and conditions of a Stock Subscription
Agreement dated ___________, 1998 (the "Subscription Agreement"). Immediately
before the consummation of the transactions contemplated by the Subscription
Agreement, Parent intends to distribute by means of a dividend, all of the
shares of Common Stock owned by it to shareholders of Parent, pro rata, in
accordance with their interests in the Parent (the "Spin-Off"). Following the
Spin-Off and the consummation of the transactions contemplated by the
Subscription Agreement, Evercore will own, directly or indirectly, approximately
45% of the issued and outstanding Common Stock, and the remainder will be owned
by the Parent's shareholders.
In contemplation of those transactions, the Company desires to employ the
Executive, and the Executive desires to accept that employment, on the terms and
conditions set forth herein.
Accordingly, the parties hereto, intending to be legally bound hereby, and
in consideration of the mutual covenants herein contained, agree as follows:
1. Employment.
----------
1.1. The Company employs the Executive, and the Executive accepts
such employment (the "Employment"), as President and Chief Executive Officer of
the Company. The Executive accepts the employment for the period and on the
terms and conditions set forth in this Agreement and agrees to perform such
duties as are from time to time reasonably assigned to him by the Board of
Directors of the Company (the "Board") and which are normally associated with
the position of President and Chief Executive Officer. In addition, the
Executive will be elected to, and will serve as a member of, the Board, without
any additional compensation, except as may be otherwise determined by the Board,
with the Executive abstaining from any vote on such additional compensation.
1.2. During the Employment Term (as defined in Section 2), the
Executive will report directly to the Board or to such committees of the Board
as the Board shall from time to time specify.
1.3. During the Employment Term the Executive will devote his best
efforts and full business time, skill and attention to the performance of his
duties on behalf of the Company.
1.4. The Executive's duties under this Agreement shall be performed
from the Company's offices in East Petersburg, Pennsylvania or such other office
as the Board shall determine, provided that such office shall not be more than
50 miles from the Company's present offices without the Executive's consent.
2. Term of Employment. Unless earlier terminated pursuant to the
------------------
provisions of Section 4 hereof, the term of the Executive's employment hereunder
shall be for three years from the date hereof. At each anniversary of the date
hereof, the term of Executive's employment shall be extended for one additional
year unless, at least 90 days before that anniversary, the Company shall have
given the Executive written notice of its intention not to extend the term of
the Executive's employment, in which case the Executive's employment will
terminate at the end of the term of this Agreement as in effect on the date of
such notice. Any period during which this Agreement is in effect shall be
considered part of the "Employment Term".
3. Compensation and Benefits.
-------------------------
3.1. The Company agrees to pay, and the Executive agrees to accept,
as base compensation for all services to be rendered by the Executive under this
Agreement, a salary of $252,000. per annum (subject to such deductions and
withholdings as may be required by law or by further agreement with the
Executive) (the "Base Salary"), payable in arrears in equal semi-monthly
installments. The Base Salary may be increased from time to time in the
discretion of the Board. Any such increases shall be added to the Base Salary
then being paid to the Executive, and the sum thereof shall then become the Base
Salary for each successive year, until further adjusted in accordance with the
provisions of this Section 3. 1.
3.2. In addition to the Base Salary, subject to the terms and
conditions of the Company's Incentive Compensation Plan (the "Incentive Plan"),
during the term of this Agreement, the Executive shall be eligible to
participate in the Incentive Plan on terms and conditions no less favorable than
those in effect at the date hereof.
3.3. The Company shall also reimburse the Executive for all
reasonable and necessary expenses incurred by the Executive in connection with
the Employment, including without limitation, travel and lodging expenses, car
phone expenses and charges incurred for business entertainment. Such expenses
shall be reimbursed to
-2-
the Executive by the Company after the Executive submits documentation to the
Company with respect to the reimbursable expenses incurred by him.
3.4. Additional Benefits. During the Employment Term, the Company
-------------------
shall provide the Executive with an automobile and shall reimburse the Executive
for the costs of automobile insurance and operating expenses attributable to
that automobile, as well as vacation, 401(k) matching, health, medical and
hospitalization, disability insurance and other fringe benefits no less
favorable, in each case, than those being provided to him under the Company's
plan's and arrangements in effect on the date hereof.
4. Termination.
-----------
4.1. The Company may terminate the Executive's employment at any time
for "Cause", in which event the Executive shall have no further rights under
this Agreement, except the right to receive the Base Salary up to the date of
termination by the Company of the Executive's employment hereunder, the right to
receive any vested benefits under any plan or arrangement described in Section
3.4 and the rights specified in Section 6 hereof. The Executive's employment
shall be deemed to have been terminated for "Cause" if his employment is
terminated for: (i) embezzlement, theft, or other misappropriation of any
property of more than nominal value of the Company or any Subsidiary; (ii) the
Executive's neglect of, or failure substantially to perform or comply with, his
duties, responsibilities and obligations as an officer of the Company (other
than any such failure resulting from his incapacity due to physical or mental
illness, as determined by a physician appointed by the Company) after a demand
for substantial performance is delivered to the Executive by the Board of
Directors of the Company which specifically identifies the manner in which such
Board believes that the Executive has not substantially performed his duties and
the Executive fails or refuses to remedy such failure to the reasonable
satisfaction of the Board within ninety (90) days after the receipt of such
notice; (iii) the Executive's willful breach of his restrictive covenants set
forth in this Agreement; (iv) any act which if the subject of a criminal
proceeding could reasonably result in a conviction for a felony; or (v) an act
or acts of dishonesty on the Executive's part intended to result or resulting in
substantial gain or personal enrichment to him at the expense of the Company.
4.2. In the event the Executive's employment is terminated without
"Cause", the Executive shall have the right to receive (a) an amount, equal to
three years' Base Salary, as in effect at the date of termination, plus three
years' anticipated Incentive Plan awards, ("anticipated Incentive Plan awards"
for any year shall be equal to 100% of the average of the Executive's awards
under the Incentive Plan for the previous three (3) years, or the period of his
actual employment if shorter), (b) continuation of the health, hospitalization
and medical care benefits in which the Executive is participating under Section
3.4 on the date of termination, for three years
-3-
following the date of such termination, plus (c) any amounts due in accordance
with the terms of the Incentive Plan, and (d) all other benefits under Section
3.4 hereof which have accrued as of the date of termination. In addition, the
Executive shall be entitled to participate in awards made under the Incentive
Plan for the fiscal year in which the Executive is terminated without "Cause" in
amounts proportionate to the length of time the Executive was employed by the
Company in such fiscal year, and shall be entitled to the payments specified in
Section 6. The three years referred to in (a) and (b) above shall become one
year if by reason of notice given under Section 2, the Agreement expires at the
end of the Employment Term. The amount payable under (a) above shall be paid in
a lump sum within 15 days of the date of the Executive's termination without
"Cause."
4.3. In the event of the Executive's death during the Employment
Term, the Employment Term shall terminate automatically as of the date of the
Executive's death, and the Executive's executor, administrator or other legal
representative shall have no further rights hereunder, except the right to
receive (a) the Base Salary up to the date of the Executive's death, (b) any
amounts due under the Incentive Plan as of the date of death, including an award
for the year of death proportionate to the length of time the Executive was
employed by the Company in such fiscal year, (c) any other benefits under
Section 3.4 which have accrued as of the date of, or are payable on account of,
the Executive's death and (d) the amounts payable under Section 6 hereof.
4.4. The Executive may terminate this Agreement at any time by giving
the Board written notice of intent to terminate, delivered at least ninety (90)
calendar days prior to the effective date of such termination. In that event,
the Company shall pay the Executive his full Base Salary, at the rate then in
effect, through the effective date of termination, any amounts due but unpaid
under the Incentive Plan, all other benefits under Section 3.4 to which the
Executive has a vested right at that time and the payments to which Executive is
entitled under Section 6 hereof. In the event that the voluntary termination is
for Good Reason, the terms of Section 4.2 shall govern the parties' rights and
obligations hereunder. In addition, provided that the Executive resigns after
June 30 of the relevant fiscal year, the Executive shall be entitled to
participate in awards made under the Incentive Plan for the fiscal year in which
the Executive resigns in amounts proportionate to the length of time the
Executive was employed by the Company in such fiscal year.
4.5. At any time during the term of this Agreement, the Executive may
terminate this Agreement for Good Reason (as defined below) by giving the Board
ninety (90) calendar days written notice of intent to terminate, which notice
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for such termination. Upon termination the Company shall pay and provide
to the Executive the benefits set forth in Section 4.2 hereof (as if the
termination were an involuntary termination without Cause.) "Good Reason" shall
mean, without the Executive's
-4-
express prior written consent, the occurrence of any one or more of the
following:(i) The failure at any time while this Agreement is in effect to
elect the Executive to the Board, (ii) The assignment of the Executive to duties
materially inconsistent with the Executive's authorities, duties,
responsibilities, and status (including titles and reporting requirements) as an
officer of the Company, or a material reduction or alteration in the nature or
status of the Executive's authorities, duties, or responsibilities from those in
effect as of the Effective Date (or as subsequently increased), other than an
insubstantial and inadvertent act that is remedied by the Company promptly after
receipt of notice thereof given by the Executive; (iii) The Company's requiring
the Executive to be based at a location in excess of fifty (50) miles from the
location of the Executive's principal job location or office as of the Effective
Date, except for required travel on the Company's business to an extent
substantially consistent with the Executive's present business obligations; (iv)
A reduction by the Company of the Executive's Base Salary as in effect on the
Effective Date, or as the same shall be increased from time to time; (v) An
intentional material reduction by the Company of the Executive's aggregate
incentive opportunities under the Company's incentive programs, as such
opportunities exist on the Effective Date, or as such opportunities may be
increased after the Effective Date. For this purpose, a reduction in the
Executive's incentive opportunities shall be deemed to have occurred in the
event his targeted annualized award opportunities and/or the degree of
probability of attainment of such annualized award opportunities, are materially
diminished from the levels and probability of attainment that existed as of the
Effective Date or as such opportunity and/or degree of probability have been
increased from time to time; provided, however, that notwithstanding the
foregoing, the Executive's Incentive opportunities shall not be deemed to have
been materially reduced by the adoption by the Board of any reasonable Company
budget after the Spin-Off; (vi) The failure of the Company to maintain the
Executive's relative level of coverage under the Company's employee benefit or
retirement plans, policies, practices, or arrangements in which the Executive
participates as of the Effective Date, both in terms of the amount of benefits
provided and the relative level of the executive's participation. For this
purpose, the Company may eliminate and/or modify existing programs and coverage
levels; provided, however, that the Executive's level of coverage under all such
programs must be at least as great as is such coverage provided to executives
who have the same or lesser levels of reporting responsibilities within the
Company's organization; (vii) The failure of the Company to obtain a
satisfactory agreement from any successor to the Company to assume and agree to
perform the Company's obligations under this Agreement. For this purpose,
successor shall mean the business enterprise(s) resulting from reorganization,
merger or consolidation involving the Company or any subsidiary of the Company
or sale or other disposition of all or substantially all of the assets of the
Company.
4.6. If, by reason of any illness, disability or incapacity, the
Executive is unable to perform his duties under this Agreement for a period of
ninety (90)
-5-
consecutive days (or shorter periods aggregating to one hundred twenty (120)
days in any twelve month period) ("Disability"), the Company may terminate the
Employment Term as of the last day of such ninety (90) or one hundred twenty
(120) day period, as the case may be, or as of such other day thereafter,
provided the Executive remains unable to perform his duties hereunder. The
Executive or his duly appointed representative, if one is appointed, shall be
entitled to receive, within sixty (60) days after the date of such termination,
any amounts payable to the Executive pursuant to this Agreement, including
without limitation (i) a share of any Incentive Plan award for the fiscal year
of termination proportionate to the length of time the Executive was employed by
the Company in that fiscal year, and (ii) the provisions of Article 6.4 hereof
applicable in the case of the Executive's termination by the Company without
Cause. Notwithstanding the foregoing, (i) the Executive shall remain entitled
to any benefits to which he is entitled under the Company's short and long term
disability plans on account of his disability and (ii) if the Executive suffers
a Disability and his employment hereunder is not terminated, the Executive shall
be entitled to receive any amounts owing to him hereunder (including, without
limitation, the additional benefits outlined in Section 3.4), less any
disability insurance payments which Executive is entitled to receive under any
plans the premiums of which are paid for by the Company.
5. Non-Competition and Confidentiality.
------------------------------------
5.1. Covenant Not to Compete. The Executive covenants and agrees
-----------------------
that during the Employment Term and for a period equal in length to the period
taken into account in calculating the amount payable under Section 4.2
thereafter, he will not, directly or indirectly (whether as principal, agent,
proprietor, sales person, employee, consultant, independent contractor, officer,
director, investor, or otherwise), participate in the ownership, management,
operation, or control of, or have any interest of any nature whatsoever in any
organization, corporation, firm, or other business which is engaged in or which
proposes to engage in any business which is in competition with the business now
or hereafter operated and conducted by the Company in any geographic area where
Company has regularly serviced customers during the Employment Term. Without
limiting the foregoing, the Executive agrees that he will not, during the
Employment Term and for a period equal in length to the period taken into
account in calculating the amount payable under Section 4.2 thereafter, directly
or indirectly, divert or take away or attempt to divert or take away, by
soliciting, supplying, serving, advising, or otherwise, any customer or business
entity with which the Company did business during the Employment Term. It will
not be a violation of this provision for Executive to own shares in a widely
traded public company which competes with Company if the investment is passive
and the number of shares held is sufficiently small that Executive cannot
exercise any material influence or control over the management of the public
company.
-6-
5.2. Covenant Not to Divulge Confidential Information. The Executive
------------------------------------------------
recognizes and acknowledges that he will, during the course of his employment by
the Company, have access to certain proprietary material and confidential
business information concerning the business and operations of the Company which
are valuable property of a confidential nature and which belong to the Company,
which is not public knowledge. The Executive covenants and agrees that he will
not during the Employment Term or at any time thereafter disclose to any person,
except in the regular course of business of the Company, or use in competition
with the Company any such proprietary material or confidential business
information.
6. REPURCHASE OF EQUITY INVESTMENTS. Upon termination of the Executive's
Employment hereunder, the Executive shall be entitled to the following payments:
6.1. Termination Other than for Cause. If the Executive's employment
--------------------------------
is terminated by the Company other than for Cause or is terminated by the
Executive with Good Reason, the Company will pay the Executive, within 15 days
following the Executive's termination, in exchange for (i) the total number of
shares of Common Stock owned by the Executive and (ii) the total number of
shares of Common Stock of the Company for which the Executive holds Regular
Options (as such term is defined in the Executive's Nonqualified Stock Option
Award Agreement (the "Award Agreement")) granted under the Company's 1998 Stock
Option Plan (the "Stock Option Plan"), whether or not vested or exerciseable
(the "Regular Option Shares"):
6.1.1. If the Common Stock of the Company is publicly traded on a
national stock exchange, an amount equal to the product of the
average closing price of the Common Stock on that exchange for
the 10 trading days immediately preceding the date of the
Executive's termination, less, in the case of Regular Option
Shares, the aggregate exercise price for those Regular Option
Shares. Notwithstanding the foregoing, if the Company's Common
Stock is publicly traded, and if at least 3 years have passed
after the Spin-Off, the Executive shall have the right, in
lieu of receiving the payment described above, to exercise all
of the Executive's Options under the Stock Option Plan and
sell the Executive's Common Stock, including shares acquired
by exercise of Options, on the public exchange, at a time or
times selected by the Executive.
6.1.2. If the Common Stock of the Company is not publicly traded, the
amount to be paid to the Executive shall be determined by:
-7-
6.1.2.1. multiplying 6.1 times the Company's Adjusted
Consolidated EBITDA (as such term is defined in the
Note Purchase Agreement, dated as of November __,
1998, Between Specialty Products & Insulation Co.,
and Irex Corporation (the "Note Purchase
Agreement")) for the four (4) fiscal quarters most
recently ended to determine aggregate value;
6.1.2.2. subtracting from the aggregate value as determined
under clause 6.1.2.1, Indebtedness (as such term is
defined in the Note Purchase Agreement) and adding
cash and equivalents, in each case pro forma as of
the end of the most recent fiscal quarter, to
determine equity value;
6.1.2.3. dividing equity value, as determined in clause
6.1.2.2,. by the number of the Company's shares of
Common Stock on a fully diluted basis; and
6.1.2.4. multiplying that result in clause 6.1.2.3 by the
number of the Executive's shares of Common Stock and
Regular Options, provided that the amount payable
with respect to the Regular Options shall be reduced
by the aggregate exercise price for the Regular
Options.
6.1.3. In addition to the payments provided above, any Tranche A
Performance Options or Tranche B Performance Options to
purchase Company Common Stock granted under the Stock Option
Plan shall immediately vest, but shall become exercisable only
in the event of an Evercore Sale or Partial Evercore Sale, as
defined in the Award Agreement, provided that the relevant IRR
targets, as established by the Award Agreement, are satisfied.
When the Executive's Tranche A Performance Options or Tranche
B Performance Options become exercisable in accordance with
the Award Agreement, (a) if the Company's Common Stock is then
publicly traded, the Executive may exercise those options, or,
at the Executive's election, receive from the Company, in
cash, an amount equal to the difference between the aggregate
exercise price for such Options and the aggregate public
trading price of the Common Stock to be acquired upon exercise
of those Options or (b) if the Company's Common Stock is not
publicly traded, the Executive shall be entitled to be paid an
amount equal to the per
-8-
share value of the Company's Common Stock, determined based
upon the consideration received by Evercore, less the option
exercise price, multiplied by the number of shares of Common
Stock for which the Executive holds such Options.
6.2. Termination for Cause. In the event of the Executive's
---------------------
termination of employment for Cause, the Company will pay the Executive, in
exchange for (i) the total number of shares of Common Stock owned by the
Executive and (ii) the total number of Regular Option Shares as defined in
Section 6.1, an amount equal to:
6.2.1. With respect to Common Stock, the lesser of the amount
determined under Section 6.1 or the Executive's cost and with
respect to Regular Options Shares granted under the Stock
Option Plan that have vested under the terms of that Plan and
the Award Agreement, the amount determined under Section 6.1
based on an EBITDA multiple of 6.1.
6.2.2. Notwithstanding the foregoing, if the Executive's termination
for "Cause" is on account of conduct specified in Section
4.1(i), (ii), (iii) or (v), all options including vested
Regular Options under the Stock Option Plan shall be forfeited
without payment hereunder.
6.3. Resignation. In the event of the Executive's resignation
-----------
without Good Reason, the Company will pay the Executive, in exchange for (i) the
total number of shares of Common Stock owned by the Executive and (ii) the total
number of Option Shares, an amount equal to:
6.3.1. With respect to Common Stock, and with respect to Regular
Options that have vested under the terms of the Stock Option
Plan and the Award Agreement, the amount determined under
Section 6.1, subject to the election contained therein if the
Common Stock is publicly traded.
6.3.2. With respect to the Tranche A Performance Options and the
Tranche B Performance Options that have vested under the terms
of the Stock Option Plan and the Award Agreement, the amount
determined under the Executive's Award Agreement and to be
payable at the time set forth in Section 6.1.3.
6.4. Death or Disability. In the event of (i) the Executive's
-------------------
death during the Employment Term or (ii) the termination of the Executive's
employment with the Company due to Disability (in accordance with Section 4.6 of
this Agreement), the Company will pay the Executive, in exchange for (i) the
total number of shares of
-9-
Common Stock owned by the Executive and (ii) the total number of Option Shares,
an amount equal to:
6.4.1. With respect to Common Stock, and with respect to the Regular
Options that have vested under the terms of the Stock Option
Plan and the Award Agreement, the amount determined under
Section 6.1.2, subject to the election contained therein if
the Common Stock is publicly traded;
6.4.2. With respect to the Tranche A Performance Options and the
Tranche B Performance Options that have vested under the terms
of the Stock Option Plan and the Award Agreement, the amount
determined under the Executive's Award Agreement and to be
payable at the time set forth in Section 6.1.3.
6.5. Change of Control or Other Corporate Event. If within 12
------------------------------------------
months following the Executive's termination of employment hereunder, other than
for Cause or voluntarily by the Executive without Good Reason, the Company or
Evercore has:
6.5.1. begun substantive negotiations that result in the consummation
of transactions in which substantially all of the stock or
assets or the Company, or Evercore's equity position in the
Company, are sold within eighteen (18) months after
termination; or
6.5.2. an investment banking firm is engaged or performs initial due
diligence in connection with an initial public offering and
that offering is consummated within eighteen (18) months after
termination; then
6.5.3. the amount payable to the Executive under Section 6.1 shall be
recalculated and the Executive shall be entitled to receive
the increase, if any, of the amount that would have been
payable to Executive with respect to his shares of Common
Stock and Basic and Performance Option Shares if he had been
able to participate in any transaction described in 6.5.1 or
6.5.2, over the amount actually paid to Executive under
Section 6.1.
7. Section 280G Limitation. If any benefit or payment from the Company
-----------------------
to the Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise) (a "Payment") shall be
determined to be an "Excess Parachute Payment," as defined in Code section
280G(b)(1), then the aggregate present value of amounts or benefits payable to
Executive pursuant to this Agreement ("Agreement Payments") shall be reduced
(but not below zero) to the
-10-
Reduced Amount. The "Reduced Amount" shall be the greater of (i) the highest
aggregate present value of Agreement Payments that can be paid without causing
any payments or benefits hereunder to be an Excess Parachute Payment or (ii) the
largest portion, up to and including the total, of the Agreement Payments that
after taking into account all applicable state and Federal taxes (computed at
the highest applicable marginal rate) including any taxes payable pursuant to
Section 4999 of the Code, results in a greater after-tax benefit to the
Executive than the after-tax benefit to the Executive of the amount calculated
under (i) hereof (computed at the highest applicable marginal rate). For
purposes of this Section 8, present value shall be determined in accordance with
section 280G(d)(4) of the Code.
8. Dispute Resolution. During the Executive's lifetime, any good faith
------------------
dispute or controversy arising under or in connection with this Agreement shall
be settled by arbitration. Upon his death, the executors, administrators or
other legal representatives of the Executive or his estate shall have the right
and option to elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by litigation or arbitration. To
the extent that a dispute or controversy is to be settled by arbitration, such
proceeding shall be conducted before a panel of three (3) arbitrators sitting in
a location selected by the Executive (or, after his death, the executors,
administrators or other legal representatives of the Executive or his estate)
within fifty (50) miles from the location of his principal place of employment,
in accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the award of the arbitrators in any court
having competent jurisdiction. All expenses of such litigation or arbitration,
including the reasonable fees and expenses of the legal representative for the
Executive (or, after his death, the executors, administrators or other legal
representatives of the Executive or his estate), and necessary costs and
disbursements incurred as a result of such dispute or legal proceeding, and any
prejudgment interest, shall be borne by the Company, unless the Company prevails
in such litigation or arbitration, in which case the Executive (or, after his
death, the executors, administrators or other legal representatives of the
Executive or his estate) shall be responsible for the fees and expenses of his
own legal representation.
9. Headings. The section headings of this Agreement are for convenience
--------
of reference only and are not to be considered in the interpretation of the
terms and conditions of this Agreement.
10. Notices. All notices and other communications required or permitted
-------
to be given under this Agreement shall be in writing and shall be deemed to have
been duly given (a) when delivered personally, (b) if sent by telecopy, when
receipt thereof is acknowledged at the telecopy number below, (c) the day
following the day on which the same has been delivered prepaid for overnight
delivery to a national air courier service
-11-
or (d) three business days following deposit in the United States Mail,
registered or certified, postage prepaid, in each case, addressed as follows:
If to the Company: Board of Directors
Specialty Products and Insulation, Co.
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX
Attn: Xxxxx X. Xxxxxxxxx
and
W. Xxxx Xxxxxx, Esq.
IREX Corporation
000 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
with copies to:
Attn:
Telecopy:
If to the Executive:
Attn:
Telecopy:
with a copy to:
Attn:.
Telecopy
Any party may change the persons and address to which notices or other
communications are to be sent by given written notice of such change to the
other party in the manner provided herein for giving notice.
11. Waiver of Breach. No waiver by either party of any condition or of
----------------
the breach by the other of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances shall be deemed or
construed as a further or continuing waiver of any such condition or breach or a
waiver of any other condition, or of the breach of any other term or covenant
set forth in this Agreement.
-12-
The failure of either party to exercise any right hereunder shall not bar the
later exercise thereof.
12. Binding Nature: Assignment. This Agreement shall inure to the benefit
--------------------------
of and be binding on the parties and their respective successors in interest,
and shall not be assignable by either party without the written consent of the
other; provided that nothing in this Section shall preclude the Executive from
designating a beneficiary to receive any benefit payable hereunder upon his
death, or the executors, administrators or other legal representatives of the
Executive or his estate from assigning any rights hereunder to which they become
entitled to the person or persons entitled thereto.
13. Governing Law. This Agreement is entered into and shall be construed
-------------
in accordance with the laws of the Commonwealth of Pennsylvania, without giving
effect to conflict of laws principles thereof requiring application of the
substantive laws of another jurisdiction.
14. Invalidity or Unenforceability. If any term or provision of this
------------------------------
Agreement is held to be invalid or unenforceable for any reason, such invalidity
or unenforceability shall not affect any other term or provision hereof and this
Agreement shall continue in full force and effect as if such invalid or
unenforceable term or provision (to the extent of the invalidity or
unenforceability) had not been contained herein.
15. Entire Agreement. This Agreement constitutes the full and complete
----------------
understanding and agreement of the Executive and the Company respecting the
subject matter hereof, and supersedes all prior understandings and agreements
concerning the subject matter hereof, oral or written, express or implied. This
Agreement may not be modified or amended orally, but only by an agreement in
writing, signed by the party against whom enforcement of any modification or
amendment is sought.
-13-
16. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall be deemed one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXX X. XXXX
___________________________
SPECIALTY PRODUCTS & INSULATION, CO.
By:________________________
-14-
