Exhibit 10.1
SEVERANCE AND NON-COMPETITION AGREEMENT
THIS Agreement made as of the 3rd day of May, 2004, between Maritrans
Inc., a Delaware corporation (the "Company"), and Xxxxxxxx Xxxxxxxxx (the
"Employee").
WHEREAS, the Employee is to become employed by the Company as its Chief
Executive Officer and as the President of Maritrans General Partner Inc., a
subsidiary of the Company; and
WHEREAS, the Employee and the Company now wish to enter into an
Agreement that will set forth certain of the terms and conditions related to
that employment;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. For all purposes of this Agreement, the following terms
shall have the meanings specified in this Section unless the context clearly
otherwise requires:
(a) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b) "Base Compensation" shall mean the sum of the Employee's
base salary, at the rate in effect on the Termination Date or at the time of a
Change of Control, if higher and, if applicable, any payment received under the
Company's Cash Long Term Incentive Plan in the fiscal year prior to the year in
which the Termination Date occurs, together with any and all salary reduction
authorized amounts under any of the Company's benefit plans or programs, but
excluding any amounts attributable to the exercise of stock options by the
Employee or the vesting of restricted stock, under any equity compensation plan
of the Company.
(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 i) misappropriation of funds, ii)
habitual insobriety or substance abuse, iii) conviction of a crime involving
moral turpitude, iv) 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, or v) for purposes of Section 3(a), a judgment by the Board
that the Employee is not satisfactorily performing his duties after Employee has
received written notification of specific performance deficiencies and has had a
minimum of six months' opportunity to correct such noted deficiencies. In such
case, the ultimate ruling by the Board shall be considered final.
(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 the Company 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 the
Company cease for any reason to constitute a majority thereof, unless the
election, or the nomination for election by the Company's 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,
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(iii) consummation by the Company 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 the Company 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 of the Company, or
(iv) consummation of a complete liquidation or
dissolution of the Company or sale or other disposition of all or substantially
all of the assets of the Company 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 the Company 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, provided, however, that no "Change of Control" shall be deemed to
occur if a management buy-out occurs I.E., the acquirement by then current
officers and directors of the Company of more than fifty percent of its
outstanding common stock. If the Employee is not a member of the group of
officers acquiring such stock, then a Change of Control shall be deemed to have
occurred.
(g) "Normal Retirement Date" shall mean the first day of the
calendar month coincident with or next following the date the Employee is first
eligible for an unreduced Social Security benefit.
(h) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(i) "Subsidiary" shall have the meaning ascribed to such term
in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
(j) "Termination Date" shall mean the date of receipt of the
Notice of Termination described in Section 2 hereof or any later date specified
therein, as the case may be.
(k) "Termination of Employment" shall mean the termination of
the Employee's actual employment relationship with the Company.
(l) "Termination following a Change of Control" shall mean a
Termination of Employment within six months prior to or 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
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(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; provided, however,
in the case of a "management buy-out" any alteration in the Employee's position
that results from the fact that the Company is no longer a publicly traded
company shall be ignored;
(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.
(E) a transfer of the Employee, without his
express written consent, to a location that is outside the metropolitan Tampa,
FL area (fifty miles surrounding the Company's principal location as of the date
hereof), or the general area in which his principal place of business
immediately preceding the Change of Control may be located at such time if other
than metropolitan Tampa, FL.
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 16 hereof. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific reasons for
the termination, (ii) briefly summarizes the facts and circumstances deemed to
provide a basis for termination of the Employee's employment, and (iii) if the
Termination Date is other than the date of receipt of such notice, specifies the
Termination Date (which date shall not be more than 15 days after the giving of
such notice).
3. Severance Compensation upon Termination.
(a) In the event of the Employee's involuntary Termination of
Employment for reason other than Cause, the Company shall continue to pay to the
Employee, upon the execution of a release (substantially in the form being used
by the Company prior to a Change of Control), an amount equal to his Base
Compensation, payable in biweekly installments for twelve months following the
Termination Date. All other benefit coverages (except as specified by law or
regulation), retirement benefits and fringe benefit eligibility shall cease upon
the Termination Date.
(b) In lieu of any payment under subsection (a) above, and
subject to the provisions of Section 10 hereof, in the event of the Employee's
Termination following a Change of Control, 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 10(b) hereof
cannot be completed within 30 days), a single sum in cash equal to 1.99 times
the Employee's Base Compensation payable over twelve months.
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(c) As additional consideration for the non-competition and
non-solicitation covenants contained in Sections 12 and 13, the Employee will
receive a single cash payment, within 30 days after the effective date of the
Termination of Employment, equal to his Base Compensation.
(d) 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) 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.
3. 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.
4. 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.
5. Enforcement.
(a) In the event that the Company shall fail or refuse to make
payment of any amounts due the Employee under Section 3 hereof within the
respective time periods provided therein, the Company shall pay to the Employee,
in addition to the payment of any other sums provided in this Agreement,
interest, compounded daily, on any amount remaining unpaid from the date payment
is required under Section 3(b) and 4, as appropriate, until paid to the
Employee, at the rate from time to time announced by Mellon Bank (East) as its
"prime rate" plus 2%, each change in such rate to take effect on the effective
date of the change in such prime rate.
(b) It is the intent of the parties that the Employee not be
required to incur any expenses associated with the enforcement of 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.
(c) The party or parties challenging the right of Employee to
the benefits of this Agreement shall in all circumstances have the burden of
proof.
6. 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.
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7. 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.
8. 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.
9. 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.
10. 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 10, present value
shall be determined in accordance with Section 280G(d)(4) of the Code.
(b) All determinations to be made under this Section 10 shall
be made by the Company's independent public accountant immediately prior to the
Change of Control (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 his 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.
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(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.
11. Confidential Information. The Employee recognizes and acknowledges
that, by reason of his employment by and service to the Company, he has had and
will continue to have access to confidential information of the Company and its
affiliates, including, without limitation, information and knowledge pertaining
to products and services offered, innovations, designs, ideas, plans, trade
secrets, proprietary information, distribution and sales methods and systems,
sales and profit figures, customer and client lists, and relationships between
the Company and its affiliates and other distributors, customers, clients,
suppliers and others who have business dealings with the Company and its
affiliates ("Confidential Information"). The Employee acknowledges that such
Confidential Information is a valuable and unique asset and covenants that he
will not, either during or after 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.
12. Non-Competition.
(a) During his 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
his name to be used in connection with, any business or enterprise in
competition with the Company and engaged in a geographic area in which the
Company or any of its affiliates is operating (i) on the date of reference,
during his employment by the Company or (ii) following hi Termination Date, on
the Termination Date. The Employee recognizes that the Company presently
operates on the East Coast of the United States and at all ports in the Gulf of
Mexico (whether or not such business is physically located within those areas)
(the "Geographic Area"). "Competition" includes any business that is a customer
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of, competitive to, or in a business segment from which the Company or any of
its affiliates derive at least five percent of its respective gross revenues
either during his 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, hire 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 his rights as a
shareholder, or seeks to do any of the foregoing.
13. Equitable Relief.
(a) Employee acknowledges that the restrictions contained in
Sections 11 and 12 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 his experience and capabilities are
such that the restrictions contained in Section 13 hereof will not prevent the
Employee from obtaining employment or otherwise earning a living at the same
general level of economic benefit as anticipated by this Agreement. The Employee
further represents and acknowledges that (i) he has been advised by the Company
to consult his own legal counsel in respect of this Agreement, and (ii) that he
has had full opportunity, prior to execution of this Agreement, to review
thoroughly this Agreement with his counsel.
(b) The Employee agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages or posting a bond, as well as an equitable accounting of all
earnings, profits and other benefits arising from any violation of Sections 11
or 12 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 11 or 12 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.
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(c) Except as provided in Section (b), the Employee
irrevocably and unconditionally (i) agrees that any suit, action or other legal
proceeding arising out of Section 11 or 12 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 in 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 16 hereof. In the event of a lawsuit by either party to
enforce the provisions of Sections 11 and 12 of this Agreement, the prevailing
party shall be entitled to recover reasonable costs, expenses and attorney's
fees from the other party.
(d) Employee agrees that he will provide, and that the Company
may similarly provide, a copy of Sections 11 and 12 hereof to any business or
enterprise (i) which he may directly or indirectly own, manage, operate,
finance, join, control or participate in the ownership, management, operation,
financing, control or control of, or (ii) with which he may be connected with as
an officer, director, employee, partner, principal, agent, representative,
consultant or otherwise, or in connection with which he may use or permit his
name to be used; provided, however, that this provision shall not apply in
respect of Section 12 hereof after expiration of the time period set forth
therein.
14. Term of Agreement. The term of this Agreement shall be for four
years from the date hereof and shall be automatically renewed for successive
one-year periods unless the Company notifies the Employee in writing that this
Agreement will not be renewed at least sixty days prior to the end of the
current term; provided, however, that (i) 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 (ii)
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 Section 1(l).
15. 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.
16. 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:
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If to the Company, to:
Maritrans Inc.
000 Xxxxxxx Xxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
If to the Employee, to:
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.
17. 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.
18. 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.
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19. 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.
20. 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.
21. 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.
22. Termination of Agreement. This Agreement shall supersede and
replace the Prior Agreement which, with the consent of Maritrans General Partner
Inc., previously obtained, shall hereafter be null and void and of no further
force and effect.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first above written.
Attest: Maritrans Inc.
[Seal]
Xxxxxx X. Xxxxxxxxx By Xxxxxxxx Xxxxxxxxx
------------------------ -------------------------
Secretary
Xxxxxxx Xxxxxxx May 6, 2004
------------------------ -------------------------
Witness
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