EMPLOYMENT AGREEMENT
This Employment Agreement is made by and between The JPM Company, a
Pennsylvania corporation (EMPLOYER), and Xxxxx X. Xxxxxxx, the undersigned
individual (EMPLOYEE).
RECITALS
EMPLOYER is engaged in the business of manufacturing wire and cable
assemblies, being referred to as the "Business."
The parties wish to provide for an employment arrangement under the terms
and conditions herein set forth.
I. Term of Employment. EMPLOYER hereby employs EMPLOYEE, and EMPLOYEE
agrees to be employed by EMPLOYER, under the terms and conditions set forth.
EMPLOYEE's employment continue until terminated as set forth in Section IX.
II. Compensation. As full payment for all services rendered by EMPLOYEE
under this Agreement, EMPLOYEE agrees to accept, and shall, subject to the terms
and conditions set forth herein, receive compensation, as follows:
A. Direct Compensation. During the term of this Agreement, EMPLOYEE shall,
subject to the terms and conditions set forth herein, receive a base salary in
the amount of $125,000.00, payable in accordance with EMPLOYER's normal payroll
practice.
B. Fringe Benefits. EMPLOYEE will be entitled to participate in such fringe
benefit plans and financial incentive plans, in accordance with their terms, as
shall be made available from time to time by EMPLOYER in its discretion to its
EMPLOYEEs in EMPLOYEE's position.
C. Compensation Adjustment. The base salary, fringe benefits and any other
compensation are subject to review by EMPLOYER at any time in its discretion, at
which time EMPLOYER, in its sole discretion, may elect to adjust or modify same.
III. Deductions. EMPLOYER is authorized to deduct from the compensation of
the EMPLOYEE such sums as may be required to be deducted or withheld under the
provisions of any law now in effect or hereafter put into effect during the term
of this Agreement, or which are authorized by EMPLOYEE, including, but not
limited to, social security and income tax withholding.
IV. Duties. It is understood and agreed that EMPLOYEE will faithfully and
diligently serve EMPLOYER to the best of EMPLOYEE's ability in the position set
forth in Section XV, and EMPLOYEE further agrees to perform such duties and to
assume such additional responsibilities as may be assigned from time to time by
EMPLOYER. EMPLOYEE will devote full time, attention, loyalty and energies to the
performance of the duties as an EMPLOYEE of EMPLOYER.
V. Leave. EMPLOYEE shall be entitled to time off, with or without pay, in
accordance with the standard practices of EMPLOYER for individuals in EMPLOYEE's
position, which are subject to change. Such absences shall not be deemed to be a
termination of this Agreement.
VI. Proprietary Information. EMPLOYEE understands and acknowledges that in
the course of EMPLOYEE's employment with EMPLOYER, EMPLOYER will incur
substantial expenditures of time and money in providing EMPLOYEE with
specialized instruction and training, and will impart to EMPLOYEE, or EMPLOYEE
will have access to, certain proprietary and confidential information and
knowledge concerning EMPLOYER and its business (collectively called "Proprietary
Information"). As used herein, "Proprietary Information" shall be deemed to
include, without limitation, EMPLOYER's sales and marketing information and
techniques, business plans, financial data, Trade Secrets, pricing lists,
supplier lists and other confidential supplier data, customer lists and other
confidential customer data, and any other information or knowledge concerning
EMPLOYER and its business, whether or not in tangible form, that is of a
proprietary or confidential nature, or has been heretofore or is hereafter
treated as secret by EMPLOYER. As used herein, "Trade Secret(s)" shall mean the
whole or any portion or phase of any technical information, hardware, software,
designs or specifications, drawings, sketches, processes, procedures, formulae,
data, reports, computer programs, charts, improvements and any other technical
information or knowledge relating to the development, design and implementation
of EMPLOYER's projects, products and services.
The parties agree that it is of great importance to the success of EMPLOYER
that Proprietary Information be treated with great care and that improper
disclosure or use be prevented. EMPLOYEE, during the course of employment with
EMPLOYER and after the termination of such employment, shall maintain secrecy
with regard to such information and shall not, directly or indirectly, disclose,
use or permit the disclosure or use of any Proprietary Information received,
acquired or obtained during the course of employment, whether or not EMPLOYEE
was the creator or originator thereof, unless such disclosure or use is
consented to in advance in writing by EMPLOYER.
VII. Non-Competition. During the term of EMPLOYEE's employment with the
EMPLOYER and for a period of two (2) from the voluntary or involuntary
termination of EMPLOYEE's agreement with the EMPLOYER for any reason whatsoever,
EMPLOYEE will not directly or indirectly, own, manage, operate, control, be
employed by, perform services for, consult with, solicit business for,
participate in, or be connected with the ownership, management, operation, or
control of any business which performs the services materially similar to or
competitive with those provided by the EMPLOYER in any location where the
EMPLOYER has had an office or has sold products or provided services to
customers during the period EMPLOYEE is employed by the EMPLOYER..
During the term of EMPLOYEE's employment with the EMPLOYER for a period of
two (2) years from the voluntary or involuntary termination of EMPLOYEE's
employment with the EMPLOYER for any reason whatsoever, EMPLOYEE shall not
either on his own account or for any person, firm, partnership, corporation, or
other entity solicit, interfere with, or endeavor to cause any EMPLOYEE of the
EMPLOYER to leave his or her employment, or induce or attempt to induce, any
such EMPLOYEE to breach his or her employment agreement with the EMPLOYER.
VIII. Remedies. It is recognized that damages in the event of breach of
Sections VI and VII of this Agreement by EMPLOYEE would be difficult, if not
impossible, to ascertain, and it is therefore agreed that in the event of a
breach or threatened breach of Sections VI or VII, EMPLOYER shall be entitled to
an injunction against such breach, without prejudice to any other remedies
available to EMPLOYER.
The provisions set forth in the paragraphs under Section VI and VII are
intended by the parties to be separate and divisible. If any covenant or
provision in this paragraph is found by a court of competent jurisdiction to be
unreasonable in duration, geographical scope or character of restrictions, the
covenant or agreement shall not be rendered unenforceable thereby, but rather
the duration, geographical scope or character of restrictions of such covenant
or agreement shall be deemed reduced or modified with retroactive effect to
render such covenant or agreement reasonable and such covenant shall be enforced
as thus modified. If the court having jurisdiction will not review the covenant
or agreement, then the parties shall mutually agree to a revision having an
effect as close as permitted by law to the provisions declared unenforceable.
EMPLOYEE further agrees that in the event a court having jurisdiction
determines, despite the express intent of the EMPLOYEE, that any portion of the
restrictive covenants in this Section VI and VII are not enforceable, the
remaining provisions shall be valid and enforceable.
IX. Termination. This Agreement shall terminate in the event Section IX
becomes operative:
A. Death or disability. Upon the death or disability of EMPLOYEE, this
Agreement shall terminate. For purpose of this Agreement, the term "disability"
shall mean the determination by Employer that Employee is unable to perform
substantially all of the duties that were being performed for Employer prior to
such determination, and the continuation of such inability for a consecutive
period in excess of three (3) months following such determination (unbroken by
return to work for an aggregate period in excess of thirty (30) days).
B. Involuntary Termination. EMPLOYER may terminate this Agreement without
cause.
C. Compensation Payable upon Termination. In the event of termination of
this Agreement by EMPLOYER for any reason set forth hereinabove (in
subparagraphs A or B) other than death of the EMPLOYEE, EMPLOYEE shall be
entitled to receive termination pay equal to six months of the annual salary
then in effect, payable in six monthly installments, PROVIDED, however, that any
salary paid during a period of disability preceding termination shall be
credited toward the payments due hereunder.
D. Resignation as full-time EMPLOYEE. EMPLOYEE, at any time, may choose to
resign as a full-time EMPLOYEE.
E. Termination for Cause. EMPLOYER may terminate this Agreement immediately
for cause, including without limitation, fraud, misrepresentation, theft or
embezzlement of the Company's assets, intentional violations of law or company
policies, or a breach of this Agreement. In the event of termination for cause,
no severance pay shall be due EMPLOYEE.
F. Return of Documents. Upon termination of employment for any reason, all
documents, writings, or any other such material produced or received in the
course of employment shall be returned to EMPLOYER.
X. Corporate Policies. EMPLOYEE shall be subject to EMPLOYER's corporate
policies applicable to EMPLOYEE's generally, as amended from time to time,
except to the extent that any provision of this Agreement is expressly contrary
thereto. XI. Termination upon Change in Control. EMPLOYEE shall be entitled to
additional payments, as set forth herein, in the event of a Change in Control of
EMPLOYER. A. Change in Control Definition. Change in Control shall mean any of
the following events 1. The sale or other disposition by EMPLOYER of all or
substantially all of its assets to a single purchaser or to a group of
purchasers, other than to a corporation with respect to which, following such
sale or disposition, more than eighty percent (80%) of the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors is
then owned beneficially, directly or indirectly, by all or substantially all of
the individuals who were the beneficial owners of the outstanding shares of
EMPLOYER's common stock and voting securities immediately prior to such sale or
disposition; or 2. The acquisition in one or more transactions by any person or
group, directly or indirectly, of beneficial ownership of twenty-five percent
(25%) or more of the outstanding shares of the combined voting power of the then
outstanding voting securities of EMPLOYER entitled to vote generally in the
election of directors, Provided, however, that for this purpose acquisition of
such a share by an employee benefit plan of EMPLOYER or a subsidiary or
affiliate of EMPLOYER or a present significant shareholder (i.e., shareholder
whose current holdings exceed 5% of the outstanding stock) of EMPLOYER shall not
constitute a Change of Control; or 3. The reorganization, merger or
consolidation of EMPLOYER into or with another person or entity, by which
reorganization, merger or consolidation the shareholders of EMPLOYER receive
less than fifty percent (50%) of the outstanding voting shares of the new or
continuing corporation. 4. For the purpose of paragraph X and its subparts,
merger, sale or acquisition of EMPLOYER by or with any other company controlled
by EMPLOYER or any of its subsidiaries shall not constitute Change of Control.
B. Additional Payments. In the event of a Change of Control during the term of
EMPLOYEE's employment with EMPLOYER, EMPLOYEE shall be entitled to an additional
payment equal to six months base salary. Such compensation shall be payable
within 15 days of such Change of Control. C. Good Cause Termination. In the
event of a Change of Control, for a period of six months thereafter, the
EMPLOYEE may terminate this Agreement for Good Cause. 1. Good Cause. Good Cause
shall be defined as a) Geographic Reassignment. The relocation of the EMPLOYEE
to a location more than 40 miles from his/her current base or residence, except
for required travel on EMPLOYER's business to an extent substantially consistent
with the EMPLOYEE's business travel obligations immediately prior to a Change in
Control. b) Reduction in Base Salary. A reduction by EMPLOYER in the base salary
as in effect at the time of the Change in Control. 2. Effect of Good Cause
Termination. In the event of a termination by the EMPLOYEE for Good Cause,
EMPLOYEE shall be entitled to the same benefits as if the EMPLOYEE had been
involuntarily terminated without cause.
D. Non-competition Restriction. In the event of a Change of Control and
involuntary termination of EMPLOYEE within six months of such Change of Control,
the non-competition restrictions of paragraph VII shall be reduced to twelve
months. XII. Special Conditions. In addition to the conditions set forth above,
the following special conditions shall apply to EMPLOYEE:
A. Deferred Compensation. EMPLOYEE will be eligible to participate in the
EMPLOYER's Non-qualified Deferred Compensation Plan, effective the fourth fiscal
quarter of 2000, subject to modifications from time-to-time consistent with
EMPLOYER's policies for similarly situate employees. Under the plan in effect at
the date of employment, EMPLOYER deposits an amount equal to ten percent (10%)
of EMPLOYEE's salary into such plan, subject to certain vesting requirements,
timing eligibility and investment criteria. EMPLOYEE is eligible to defer up to
an additional twenty-five percent (25%) of his salary into the plan.
B. Bonus. EMPLOYEE will be eligible for participation in EMPLOYER's
Performance Sharing Plan, as in effect during the period of EMPLOYEE's
employment.
C. Life Insurance. EMPLOYEE shall be eligible for participation in
EMPLOYER's life insurance coverage, as then in effect pursuant to EMPLOYER's
policies. At the current time, that coverage provides life insurance in an
amount up to 1-1/2 times EMPLOYEE's annual salary, to a maximum of $100,000.
XIII. Miscellaneous. The waiver by either party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party. The obligations undertaken by EMPLOYEE shall
not be assigned or delegated except as may be specifically provided herein. The
rights and obligations of the EMPLOYER hereunder shall be binding upon, and
inure to the benefit of, its successors and assigns. The laws of the
Commonwealth of Pennsylvania shall apply and bind the parties in any and all
questions arising hereunder. The provisions of Sections VI and VII shall survive
any termination of this Agreement.
XIV. Final Expression of Agreement. This writing represents the entire
agreements and understandings of the EMPLOYEE and EMPLOYER with respect to
subject matter hereof and supersedes all prior agreements and understandings of
the EMPLOYEE and EMPLOYER in connection therewith; except as otherwise provided
herein, it may not be altered or amended except by mutual agreement evidenced by
a writing signed by both EMPLOYEE and EMPLOYER and specifically identified as an
amendment to this Agreement.
EMPLOYEE EXPRESSLY ACKNOWLEDGES THAT EMPLOYEE HAS BEEN GIVEN THE
OPPORTUNITY PRIOR TO ENTERING THIS AGREEMENT TO CONSULT WITH EMPLOYEE'S OWN
COUNSEL REGARDING EMPLOYEE'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THIS
AGREEMENT AND THAT EMPLOYEE EITHER HAS DONE SO OR HAS ELECTED NOT TO CONSULT
WITH SUCH COUNSEL.
XV. Specific Data.
Full name of EMPLOYEE: Xxxxx X. Xxxxxxx
Position: Acting Chief Financial Officer
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed this 24th day of July, 2000.
The JPM Company
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Exec VP and General
Counsel
Witness: Attest:
/s/ Xxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
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