Exhibit 10.17
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of this 27th day of February, 1998
("Agreements), by and among Pacer Infotec, Inc., a Massachusetts corporation
("Pacer"), IP Holding Co., a Delaware corporation ("Company") and Xxxx X.
Xxxxxx, an individual (the "Executive").
WITNESSETH:
WHEREAS, Pacer and Apollo Holding, Inc., a Delaware corporation ("Apollo")
have entered into the Agreement and Plan of Merger dated as of January __,1998
(the "Merger Agreement"), pursuant to which, among other things, the business of
Pacer will be combined with the business of Intermetrics, Inc., a Delaware
corporation and wholly-owned subsidiary of Apollo, and the holders of the then
outstanding shares of the common stock of Pacer will receive stock of the
Company or cash consideration.
WHEREAS, Pacer and the Company wish to retain the services of the Executive
as Vice Chairman of the Board of the Company and the Executive is willing, upon
the terms and conditions herein set forth, to serve as Vice Chairman of the
Board of the Company.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants contained in this Agreement, the Company, Pacer and the Executive,
intending to be legally bound hereby, agree as follows:
1. Employment. Subject to the terms and conditions hereinafter set forth,
the Company hereby employs the Executive as Vice Chairman of the Board of the
Company, and the Executive hereby accepts such employment.
2. Term.
(a) Original Term. The term of employment of the Executive by the Company
pursuant to this Agreement (the "Employment Term") shall commence with the
Closing Date (as defined in the Merger Agreement) ("Commencement Date"), and
shall terminate upon the earlier of(a) the third anniversary of the Commencement
Date or (b) the date on which the employment of the Executive hereunder is
terminated pursuant to Section 7 hereof.
(b) Option to Extend. The Employment Term may be extended for not more than
two (2) successive one-year periods by the Company upon at least 90 days written
notice prior to the end of the initial term or the successive one-year term, as
the case may be. The Executive acknowledges that the right to extend is solely
in the discretion of the Company, and there is no obligation on the Company to
exercise such right.
3. Duties and Authority. During the Employment Term, the Executive shall
render his services to the Company as Vice Chairman of the Board of the Company.
In addition to the foregoing, the Executive shall hold, without additional
compensation therefor, a seat on the Company's Board of Directors, and such
other offices, directorships or memberships on committees of the Company and/or
any direct or indirect subsidiary of the Company to which, from time to time
during the Employment Term, the Executive may be elected or appointed. During
the Employment Term, the Executive shall devote his full business time,
efforts, energy and skill solely to the business of the Company in accordance
with the reasonable directions and policies of the
Board of Directors of the Company and in accordance with Executive's talent,
skill and experience in a prudent manner and will use his best efforts to
promote the interests thereof.
4. Compensation
(a) Base Salary. In consideration of the services to be rendered by the
Executive pursuant to this Agreement, including, without limitation, any
services which may be rendered by the Executive as an officer, director or
member of any committee of the Company or any direct or indirect subsidiary of
the Company, the Company shall pay or cause to be paid to the Executive during
the Employment Term, and the Executive shall accept, compensation at the rate of
Two Hundred Seventy-Five Thousand Dollars ($275,000.00) per annum (Three Hundred
Thousand Dollars ($300,000) per annum during any extension) (the "Base Salary")
or such greater amount as may be approved from time to time by the Board of
Directors of the Company, in its sole discretion. The Company's obligation to
pay Base Salary shall begin to accrue on the Commencement Date and shall be
payable in accordance with the standard payroll practices of the Company which
are in effect from time to time during the Employment Term. The Executive's Base
Salary shall be subject to all applicable withholding and other taxes.
(b) Bonuses. The Executive shall be entitled to receive such cash bonuses,
if any, as may be payable at the sole discretion of the Board of Directors of
the Company. Any and all cash bonuses payable hereunder shall be subject to all
applicable withholding and other taxes. Within ten (10) business days after the
Commencement Date, the Company or Pacer shall pay to the Executive a bonus
sufficient (after deduction of all normal payroll deductions) to repay $69,000
owed by the Executive to Pacer under an outstanding promissory note. The Company
or Pacer may pay such bonus by direct cancellation of said $69,000 debt or by
check to the Executive which he immediately endorses to the Company to repay
such debt. In addition, the Company or Pacer shall pay to the Executive on or
before April 1, 1998 a bonus of $70,000 with respect to the Executive's
performance in fiscal year 1997. Nothing herein shall be deemed to imply that
said $70,000 bonus reflects a standard, minimum or guarantee for any future
bonuses, which shall be solely in the discretion of the Board of Directors of
the Company.
5. Employment Benefits and Loans. (a) Benefits. During the Employment
Term, the Executive shall be entitled to the following employment benefits
(collectively, the "Benefits"):
(i) four (4) weeks paid vacation in each year of the Employment Term
and sick leave in accordance with the Company's policies from time to time
in effect for executive officers of the Company;
(ii) participation, subject to qualification requirements and provided
Executive meets eligibility requirements, in medical or hospitalization
plans, life insurance policies, including the Executive Life Insurance
policy, dental plans and long-term and short-term disability policies which
are presently in effect or hereinafter instituted by the Company and
applicable to its executive officers generally ("Company-Sponsored
Benefits"); the Company agrees to pay in full for Executive's coverage
under such policies;
(iii) participation, subject to continued maintenance thereof by the
Company and provided Executive meets eligibility and classification
requirements, in other employee benefit plans which are from time to time
applicable to the Company's executive officers generally; and
(iv) the Company or Pacer shall provide Executive a car in accordance
with the Company's policies with respect to cars.
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(v) Nothing herein shall be deemed to affect the Executive's rights
under Pacer's existing Special Executive Supplemental Income Plan.
6. Expenses. During the Employment Term, the Company will reimburse the
Executive, upon presentation of proper vouchers, for all reasonable travel,
entertainment and other out-of-pocket expenses reasonably and appropriately
incurred by the Executive in the performance of his duties hereunder.
7. Termination.
(a) Cause. The Company or Pacer may, at any time, and in its sole
discretion, terminate the employment of the Executive hereunder for Cause,
effective as of the date (the "Termination Date") of written notice (the
"Termination Notice") to the Executive specifying the nature of such Cause (or,
if the termination is pursuant to Section 7(a)(i), the Termination Date shall be
the last day of the applicable cure period if Executive has not cured the action
or actions set forth in the Termination Notice). For purposes of this Agreement,
"Cause" shall mean if the Executive (i) fails or refuses to act in any material
respect in accordance with the reasonable directions of the Board of Directors
or Chief Executive Officer of Pacer or the Company in a manner that would
constitute an act of insubordination or is in continuing, willful, material
breach of this Agreement; provided, however, that in such case the Company or
Pacer shall give Executive a Termination Notice specifying the directions the
Executive failed to follow or the material breach of this Agreement, and the
Executive shall have a reasonable period of time after the date of the notice to
cure such action; (ii) has been convicted of a felony; or (iii) has committed
any act of fraud, misappropriation of funds or embezzlement in connection with
his employment. During the cure period referred to in subsection (i), the Board
of Directors of Pacer or the Company may cause the Company and Pacer to suspend
the employment of the Executive hereunder if the Executive's continued presence
at the Company or Pacer is deemed to have a potential negative affect on the
Company or Pacer as determined in good faith by the Board of Directors of Pacer
or the Company in its sole determination. If the Executive has not cured such
action within the specified cure period, the employment of the Executive shall
be terminated by the Company for Cause. If the employment of the Executive
hereunder is terminated pursuant to this Section 7(a), the Company and Pacer
shall have no further obligations to the Executive hereunder after the
Termination Date other than the payment of accrued Base Salary, vacation and
bonuses granted but unpaid under Sections 4 and 5(a)(i) hereof through the
Termination Date, or except as otherwise provided by law.
(b) Termination by the Company for actions other than Cause. For actions
other than Cause, the Company may, at any time, and in its sole discretion,
terminate the employment of the Executive hereunder for any or no reason by
delivery to him of a Termination Notice. Such termination shall be effective on
the date of the Termination Notice; provided, however, that (i) in addition to
the benefits set forth in subparagraph (ii) below, the Company shall (x) pay to
Executive any accrued vacation and bonuses granted and unpaid under Sections 4
and 5(a)(i) hereof through the Termination Date and (y) continue to pay the
Executive the Executive's Base Salary (as in effect at the time of such
termination), in accordance with the provisions of Section 4(a) hereof, on a
monthly basis and provide the Executive with a car in accordance with the
provisions of Section 5(a)(iv) hereof, both through the end of the full three
years of the Employment Term and through any extensions thereof binding on the
Company and (ii) in addition to the benefits set forth in subparagraph (i)
above, if the Executive is terminated by the Company for reasons other than
Cause at any time, for a period of two (2) years after the expiration of the
Employment Term, the Company shall pay one-half(l/2) of the Executive's Base
Salary, on a monthly basis (or, if the Company so elects, by lump sum payment
thereof or of the remaining portion thereof); the
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Company shall continue medical benefits and the disability benefits set forth in
Section 7(c) for the greater of the remaining Employment Term or 18 months after
the Termination Date. The severance payments referred to in subparagraphs (i)
and (ii) above shall be in lieu of, and shall otherwise replace, any and all
payments which the Company may owe to Executive upon termination of employment
under the Non-Competition Agreement of even date herewith between the Company
and the Executive ("Non-Competition Agreement") and any other termination or
severance benefits otherwise provided by Pacer or the Company. The Executive
shall also be entitled to exercise any applicable "put" provision under the
Stockholders Agreement with respect to shares of the Company Common Stock owned
by the Executive set forth in the Stockholders Agreement of even date herewith
(the "Company Stockholders Agreement" or the "Stockholders Agreement"). If the
employment of the Executive hereunder is terminated pursuant to this Section
7(b), the Company and Pacer shall have no further obligations hereunder except
as expressly provided herein, or as otherwise provided by law.
(c) Disability.
(i) Temporary Disability. In the event that at any time during the
Employment Term, the Executive, due to physical or mental injury, illness,
disability or incapacity, shall fail to render satisfactorily the services
to be performed by the Executive under this Agreement either for a
consecutive period of three (3) months or for a non-consecutive period of
six (6) months within any twelve month period, the Board of Directors of
the Company may, at its option, determine that such disability is long term
or place the Executive on temporary disability leave during the subsequent
pendency of such injury, illness, disability or incapacity for a period of
up to three (3) months or until subparagraph (c)(ii) becomes applicable if
Executive is disabled for more than three months, during which period the
Company shall continue to pay (to the extent not paid pursuant to
disability insurance provided by the Company) to the Executive the Base
Salary as provided in Section 4(a) and the Company-Sponsored Benefits, but
only to the extent permitted by such policies or plans.
(ii) Long-Term Disability. If such injury, illness, disability or
incapacity persists and is long-term (any such disability shall be deemed
to be long-term in nature if the Executive's physician advises the Board of
Directors of the Company that such disability can be expected to last for a
period of at least six consecutive months or for a period of 6 months in
any 12 month period), Executive meets the definition of disability under
the Company's disability policies and the Executive cannot fulfill his
duties as determined in good faith by the Board of Directors, the Company
shall have the option at any time after the Executive is on disability
leave to terminate the employment of the Executive hereunder upon not less
than thirty (30) days' written notice to the Executive. In addition to the
Company's rights set forth in the preceding sentence, if at any time the
Company receives the written opinion of two doctors (one doctor to be
selected by each of the Company and the Executive, and if such doctors
disagree as to whether the Executive is suffering from a long-term
disability, a third doctor will be selected mutually by the Executive and
the Company, whose determination will be final) that the Executive cannot
render satisfactorily the services to be performed by him under this
Agreement because of a long-term disability, the Board of Directors of the
Company may terminate the Executive's employment hereunder within thirty
(30) days of receipt of such doctors' reports. The Company can require
Executive to have the physical examinations described in the preceding
sentence at any time for the purpose of determining whether or not
Executive has a long-term disability, and Executive agrees to submit to
such examinations upon request of the Company. If the employment of the
Executive hereunder is terminated pursuant to this Section 7(c) because of
a long-term disability, the Executive shall receive the following from the
Company for a period commencing on the Termination Date and ending on the
date specified by the Company's or Pacer's long-term disability policy or
on the Executive's sixty-fifth (65th) birthday, whichever is later, or if
earlier, death: (i) benefits under the
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Company's long term disability policy and medical benefits, (ii) for the
first 12 months following disability, his Base Salary, less amounts
received under subparagraph (i) above, and thereafter $10,000 per month
(less amounts received under subparagraph (i) above), (iii) at no greater
out-of-pocket cost to the Executive than incurred prior to termination, the
Company-Sponsored Benefits, but only to the extent permitted by such
policies or plans, (iv) continued use of a car as provided in Section
5(a)(iv) and (v) payment of any accrued vacation and bonuses granted and
unpaid, under Sections 4 and 5(a)(i) hereof, through the Termination Date.
The Executive shall also be entitled to exercise any applicable "put"
provision contained in the Stockholders Agreement with respect to shares of
the Company Common Stock owned by the Executive, subject to the limitations
set forth in the Stockholders Agreement. If the employment of the Executive
hereunder is terminated pursuant to this Section 7(c), the Company shall
have no further obligations hereunder except as expressly provided under
this Section 7(c), or as otherwise provided by law.
(iii) Executive's Health. Executive hereby represents to the Company
that as of the date of execution of this Agreement, and that to the best of
his knowledge, he is in good health and is not aware of any health
condition that could lead to a temporary or long-term disability, and the
Executive specifically discloses, and the Company specifically acknowledges
receiving disclosure of, the matters set forth on Schedule 7(c)(iii)
hereof.
(d) Death. If the Executive dies during the Employment Term, the employment
of the Executive hereunder shall terminate immediately upon the death of the
Executive. If the employment of the Executive hereunder is terminated pursuant
to this Section 7(d), the Company and Pacer shall have no further obligations
hereunder after the Termination Date other than the payment to the Executive's
estate, legal representatives, heirs, successors, assigns or other beneficiaries
of accrued Base Salary and vacation and bonuses granted but unpaid (as in effect
during the year of such death) up to the date of the Executive's death. The
Executive's estate, legal representatives, heirs, successors, assigns or other
beneficiaries shall be entitled to the benefit of the exercise of any applicable
"put" provision under the Stockholders Agreement with respect to the Company's
Common Stock owned by the Executive at his death subject to the limitations set
forth in the Stockholders Agreement. If the employment of the Executive
hereunder is terminated pursuant to this Section 7(d), the Company shall have no
further obligations hereunder except as expressly provided under this Section
7(d), or as otherwise provided by law.
(e) Good Reason. Executive shall be entitled to terminate his employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean any of
the following undertaken without Executive's express written consent and not
corrected by the Company within ten (10) business days after receipt of written
notice from the Executive:
(i) the assignment to the Executive of any material duties which are
(A) inconsistent with his status as a senior executive officer of the
Company or (B) a substantial adverse alteration in the nature or status of
his responsibilities from those in effect immediately prior to the
assignment;
(ii) a reduction by the Company in his annual base salary as in effect
at the time, or the failure to grant him salary increases and bonuses
consistent with the Company's general practices for senior executives,
except for (A) non-performance of his duties as duly documented and
substantiated or (B) general reduction in salary to senior executives.
(iii) the knowing failure of the Company and Pacer to pay to Executive
any portion of his current compensation or to pay any portion of an
installment of deferred
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compensation under any deferred compensation program the Company or Pacer,
within seven (7) days of the day any such compensation is due;
(iv) the relocation of Executive's principal office to a location
outside a 35 mile radius from its location on the Commencement Date, or the
Company's requiring him to be based anywhere outside such 35 mile radius
except for required travel on the Company's or Pacer's business to an
extent substantially consistent with his present business travel patterns;
(v) (A) the failure by the Company, other than because of a change in
enabling legislation prohibiting the Executive from participating in such a
plan, to continue him as a participant in all compensation, benefit and
insurance plans maintained from time to time by the Company for its senior
executives; (B) except as may be consistent with the treatment of other
senior executives of the Company, the taking of any action by the Company
which would directly or indirectly materially reduce any of such benefits
or deprive him of any material fringe benefit enjoyed by him at the time;
or (C) the failure by the Company to provide him with the number of paid
vacation days to which he is entitled at the time; or
(vi) the failure of the Company to perform, in any material manner,
its obligations to the Executive under this Agreement.
The Executive, upon proper termination of his employment hereunder for Good
Reason, shall be entitled to the termination benefits described in Section 7(b).
(f) Notice of Termination. Any termination of the Executive's employment by
the Company pursuant to Section 7(a), (b), (c) or (d) or by the Executive
pursuant to Section 7(e), shall be communicated by a written Termination Notice
to the other in accordance with Section 11 hereof. For purposes of this
Agreement, a "Termination Notice" shall mean only a notice which is based upon,
and shall indicate, the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(g) Voluntary Termination. If the Executive voluntarily terminates his
employment hereunder, the Company and Pacer shall have no further obligations to
the Executive hereunder after the date of voluntary termination or retirement
other than the payment of accrued Base Salary and vacation, and bonus granted
and unpaid, under Sections 4 and 5(a)(i) hereof through the date of voluntary
termination or retirement, or except as otherwise provided by the Stockholders
Agreement or by law.
8. Disclosure of Information. The Executive shall not, during or after the
Employment Term, disclose any confidential or proprietary information of the
Company, or its affiliates, to any person, firm, corporation, association,
limited liability company, or other entity (other than the Company, its
affiliates or subsidiaries or officers thereof or other than as necessary in the
performance of his duties as Executive) for any reason or purpose whatsoever,
nor shall the Executive make use of any such confidential or proprietary
information for his own purpose or for the benefit of any person, firm, limited
liability company, corporation or other entity, except the Company. As used in
this Section 8, the term "confidential or proprietary information" means all
information which is known to the Company, or its affiliates, or the Executive
or to employees, former employees, consultants or others in a confidential
relationship with the Company, or its affiliates, is specific to the Company, or
its affiliates, or is developed by the Company, or its affiliates, regarding the
industry and relates to matters such as trade secrets, research and development
activities, computer or multimedia-related software or software concepts in
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development, books and records, customer lists, vendor lists, suppliers,
distribution channels, pricing information and private processes as they may
exist from time to time which the Executive acquired or obtained by virtue of
work heretofore performed for the Company or Pacer, or their affiliates;
provided, that the term "confidential or proprietary information" shall not
include (i) information that is or becomes generally available to the public
(other than as a result of an unauthorized disclosure by the Executive), (ii)
information which must be disclosed by law but only to the extent necessary to
comply with such law, and (iii) information which must be disclosed in order for
him to carry out his duties under this Agreement but only to the extent
necessary to carry out said duties, and (iv) information which is disclosed to
the Executive by a person (but not an employee of the Company) not under a duty
of confidentiality to the Company.
9. Non-Competition. The parties mutually agree to the importance of the
provisions of the Non-Competition Agreement to this Employment Agreement and the
provisions of the Non-Competition Agreement are incorporated herein by
reference.
10. Conflicting Agreements. The Executive hereby represents and warrants to
the Company and Pacer that (a) neither the execution of this Agreement by the
Executive nor the performance by the Executive of any of his obligations or
duties hereunder will conflict with or violate or constitute a breach of the
terms of any employment or other agreement to which the Executive is a party or
by which the Executive is bound, and (b) the Executive is not required to obtain
the consent of any person, firm, corporation, limited liability company or other
entity in order to enter into this Agreement or to perform any of his
obligations or duties hereunder.
11. Notices. Any notice, request, information or other document to be given
under this Agreement to any party by any other party shall be in writing and
delivered personally, sent by registered or certified mail, postage prepaid,
delivered by a nationally recognized overnight courier service or transmitted by
facsimile machine addressed as follows:
If to the Company or Pacer:
IP Holding Co.
c/o Intermetrics, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Facsimile No.: 000-000-0000
with a copy to:
Posternak, Xxxxxxxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, P.C.
Facsimile No.: 000-000-0000
If to the Executive:
Xxxx X. Xxxxxx
c/o IP Holdings Co.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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or at his then current address included in
the employment records of the Company
with a copy to:
_________________________
_________________________
_________________________
_________________________
or to such other address as a party hereto may hereafter designate in writing to
the other party, provided that any notice of a change of address shall become
effective only upon receipt thereof.
12. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the Company, the Company and the Executive and their
respective heirs, legal representatives, successors and permitted assigns. If
the business or assets of the Company are sold, either (a) the buyer will assume
the Company's obligations under this Agreement or (b) the Company will pay to
the Executive in a lump sum at the closing date of the sale the then remaining
amounts of accrued Base Salary and vacation and bonuses granted but unpaid under
Sections 4 and 5(a)(i) hereof through the closing date of the sale plus the
total of all Base Salary remaining to be paid to Executive during the Employment
Term, including any extensions thereof binding on the Company.
13. Entire Agreement. This Agreement, the Non-competition Agreement and the
Stockholders Agreement contain the entire understanding between the Company and
the Executive with respect to the employment of the Executive and supersedes all
prior negotiations and understandings between the Company and the Executive with
respect to the employment of the Executive by the Company. This Agreement may
not be amended or modified except by a written instrument signed by the Company
and the Executive.
14. Severability. In the event any one or more provisions of this Agreement
is held to be invalid or unenforceable, such illegality or unenforceability
shall not affect the validity or enforceability of the other provisions hereof
and such other provisions shall remain in full force and effect, unaffected by
such invalidity or unenforceability.
15. Applicable Law; Submission to Arbitration.
(a) This Agreement and the rights, obligations and relations of the parties
hereto shall be governed by and construed and enforced in accordance with the
laws of the Commonwealth of Massachusetts without giving effect to the
principles of conflicts of law thereof. If there is a conflict between the laws
of Massachusetts and any other state with respect to this Agreement, the
provisions of Massachusetts law shall govern, except that with respect to
corporate matters concerning the Company, Delaware law shall govern.
(b) Executive hereby acknowledges that in the event of any breach or
threatened breach by Executive of any of the provisions of this Agreement, the
Company would have no adequate remedy at law and could, suffer substantial and
irreparable damage. Accordingly, Executive hereby agrees that, in such event,
the Company shall be entitled, without the necessity of proving damages or
posting-bond and, in addition, notwithstanding any election by the Company to
claim damages, to obtain a temporary and/or permanent injunction to restrain any
such breach or threatened breach
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or to obtain specific performance of any such provisions, all without prejudice
to any and all other remedies which the Company may have at law or in equity.
(c) Except as set forth in (b) above, any disputes hereunder which cannot
be resolved by negotiation between the parties hereto shall be submitted to, and
determined by, arbitration in accordance with the Arbitration Rules of the
American Arbitration Association, and the parties hereto agree to be bound by
the final award of the arbitration panel (which shall be comprised of three
members, one to be selected by each of the Company and the Executive, and the
third to be mutually selected the Company and the Executive) in any such
proceeding. The arbitration panel shall apply the law of the Commonwealth of
Massachusetts. Arbitration may be held in Boston, Massachusetts, or such other
place as the parties hereto may mutually agree. Judgment upon the award by the
arbitration panel may be entered and enforced in any court having jurisdiction
thereof. The arbitration panel may order injunctive relief against any party.
16. Headings. The headings of sections and subsections of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement.
17. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which, when taken together, shall constitute one and the same instrument.
18. Indemnification.
(a) Unless otherwise prohibited by law, the Company shall indemnify
Executive, if Executive is a party or is threatened to be made party to any
threatened, pending or completed-action' suit or proceeding whether civil,
criminal, administrative or investigative, or by or in the right of the Company
to procure a judgment in its favor, by reason of the fact that Executive is or
was a director, officer, employee or agent of the Company or Pacer, or is or was
serving at the request of the Company as/a director, officer, employee, manager
or agent of another corporation, partnership, limited liability company,joint
venture, trust: or other enterprise, against expenses (including attorneys'
reasonable fees),judgments, fines and amounts paid in settlement actually and
reasonably incurred by Executive in connection with such action, suit or
proceeding if Executive acted in good faith and in a manner Executive reasonably
believed to be in or not opposed to the best interests of the Company and/or the
Company, as applicable. The determination of whether Executive is entitled to
indemnification hereunder shall be made by a court of competentjurisdiction in a
final non-appealable judgment. The Company shall be entitled to direct the
defense of any claim for which either of them is providing indemnification.
(b) Expenses incurred in defending any threatened or pending civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Company in advance of the final disposition of such action, suit or
proceeding, to the extent permitted by law, upon receipt of an undertaking by or
on behalf of the Executive to repay such amount if it is ultimately determined,
in a final non-appealable judgment, that Executive is not entitled to be
indemnified against such expenses. This undertaking by Executive shall be an
unqualified general undertaking, but no security for such undertaking will
required.
(c) Executive's right hereunder will be in addition to any indemnification
provided to Executive by any law, agreement, Board resolution, provision of the
Articles of Incorporation (or Certificate of Incorporation) or By-laws of the
Company or Pacer, or otherwise. All of Executive's rights hereunder will
continue even after Executive has ceased to be a director, officer, employee or
agent of the Company and/or Pacer for any reason, will inure to the benefit of
the heirs, executors
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and administrators of Executive, and will survive termination of this Agreement.
The Company and Pacer shall be jointly and severally liable to Executive with
respect to any amounts which become due to be paid to or for the benefit of
Executive hereunder.
19. Legal Fees. In the event of any disputes between the Company, on the
one hand, and the Executive, on the other hand, arising under this Agreement and
resolved by arbitration pursuant to Section 15 hereof, the prevailing party
shall be entitled to receive from the other party its reasonable attorneys' fees
and expenses incurred in connection with such dispute.
20. No Duty to Mitigate Damages. The Executive's benefits under Section
7(b) shall be considered severance pay in consideration of his past service and
his continued service from the date of this Agreement, and his entitlement
thereto shall neither be governed by any duty to mitigate his damages by seeking
further employment nor offset by any compensation which he may receive from
future employment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PACER INFOTEC, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
IP HOLDING CO.
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
/s/ Xxxx X. Xxxxxx
---------------------------------
XXXX X. XXXXXX
