EMPLOYMENT AGREEMENT
AGREEMENT made this 12th day of March, 1997, effective as of January 1,
1997, by and between NSC CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware, with a principal place of business at
00 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as
"Employer") and XXXXXX X. XXXXXXXX, an individual residing at 00 Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Employee").
WHEREAS, Employer wishes to retain Employee's skill, knowledge and
experience for the management of its business and operations and Employee wishes
to make such skills, knowledge and experience available to Employer;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Employer and Employee hereby agree
as follows:
Section 1. Employment.
1.1 Term. Employer shall employ Employee, and Employee shall serve Employer
as Chairman and Chief Executive Officer for a term of three (3) years beginning
on January 1, 1997 and ending on December 31, 1999 (the "Initial Period of
Employment"), which employment shall thereafter continue on an at-will basis
(collectively the "Term of Employment"), unless earlier terminated pursuant to
the provisions of Section 5 of this Agreement.
1.2 Duties. (a) Capacity. During the Term of Employment, Employee shall
assume and perform such managerial and executive duties and responsibilities
commensurate with his positions, including responsibility for sales, operations
staffing, budgets, pricing, personnel, training, advertising, market expansion,
business development, acquisitions, and profits and losses and Employee shall
further assume and perform such other reasonable executive and managerial
responsibilities and duties as may be assigned to him hereafter from time to
time by the Board of Directors of Employer. Employee will report directly to the
Board of Directors of Employer.
(b) Schedule. During the Term of Employment, Employee shall be employed on
a full-time basis. Employee's working schedule during the Term of Employment
shall correspond with the requirements of his position.
(c) Exclusivity. Without limiting the generality of the foregoing, during
the Term of Employment, Employee shall not, without the prior written approval
of Employer, render services of a business, professional or commercial nature
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for compensation to any other entity or person; provided, however, this clause
shall not prohibit Employee from making investments of a passive nature (other
than investments of more than one (1%) percent of the outstanding shares of
companies engaged in any business which is directly or indirectly competitive
with or similar to the business now or hereafter conducted by the Employer)
which do not detract from the full-time nature of Employee's employment
hereunder.
1.3 Compensation and Benefits. During the Term of Employment, as
compensation for the services to be rendered during such period and the other
obligations undertaken by Employee hereunder, Employee shall be entitled to the
following compensation:
(a) Salary. Employer shall pay to Employee weekly in equal installments an
annual minimum Base Salary of Two Hundred Fifty Thousand ($250,000.00) Dollars,
or such greater amount as may be determined by Employer, in its sole discretion,
upon a review of Employee's performance.
(b) Expenses. During the Term of Employment, Employer shall reimburse
Employee for reasonable and necessary travel and entertainment expenses in
connection with his employment hereunder in accordance with the policies of
Employer in effect from time to time and upon Employee timely submitting such
expenses for reimbursement and providing the Employer with such documentation
substantiating such expenses as Employer may reasonably require. Employer shall
provide to Employee an annual allowance for reimbursement of private club dues
and financial/tax planning expenses in an amount equal to two (2%) percent of
Employee's then annual Base Salary, such expenses to be reimbursed by Employer
to Employee through Employee's expense reports.
(c) Car Allowance. During the Term of Employment, Employer shall pay a
monthly car allowance to Employee in the amount of Eight Hundred ($800.00)
Dollars per month. It is acknowledged and understood by the parties that said
car allowance shall be in lieu of any reimbursement for Employee's expenses for
local auto travel, including, but not limited to, any mileage reimbursement.
(d) Benefits. During the Term of Employment, Employee shall be entitled to
such other fringe benefits, including vacation, paid holidays, health, life and
disability insurances, etc. in accordance with such plans and policies as may be
maintained by Employer from time to time. In addition to the foregoing benefits,
Employer shall provide to Employee, or reimburse Employee for the cost of, a
term life insurance policy upon the Employee's life providing for a death
benefit of two (2) times Employee's then base salary.
(e) Relocation Expenses. In the event that Employer shall require Employee
to relocate from Oak Brook, Illinois to the Company's headquarters in Methuen,
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Massachusetts during the Term of Employment, Employer shall reimburse Employee
for Employee's cost of relocating in accordance with the Employer's Relocation
Policy, Policy No. 602, a copy of which is attached hereto as Exhibit A.
(f) Incentive Compensation. During the Term of Employment, Employee shall
be entitled to participate in Employer's Management Incentive Compensation Plan
and such other incentive compensation plans as may be made available by Employer
to similarly situated executives from time to time during the Term of
Employment. For the calendar year of 1997, Employee's target bonus under the
Employer's Management Incentive Compensation Plan (the "Plan") shall be fifty
(50%) percent of Employee's annual Base Salary to be earned and paid in
accordance with the terms of said Plan; and thereafter, Employee's target bonus
under said Plan shall be determined by the Employer's Compensation Committee, in
said committee's discretion.
Section 2. Development of Inventions, Improvements or Know-How.
2.1 Information. During the Term of Employment, Employee shall keep
Employer informed of any and all promotional and advertising materials,
catalogs, brochures, plans, customer lists, supplier lists, manuals,
handbooks, inventions, discoveries, improvements, trade secrets, secret
processes, and any technology, know-how or intellectual property made or
developed by him, in whole or in part, or conceived of by him, alone or
with others, which results from any work he may do for, or at the request
of Employer, or which relates in any way to the business operations,
activities, research, investigations or obligations of Employer
(collectively the "Information").
2.2 Assignment of Rights. Employee, and his heirs, assigns and
representatives shall assign, transfer and set over, and do hereby assign,
transfer and set over, to Employer, and its successors and assigns, all of his
and their right, title and interest in and to any and all Information, and any
patents, patent applications, copyrights, trademarks, tradenames or other
intellectual property rights relating thereto, provided or conceived by Employee
during the Term of Employment. For purposes of this Section 2, any Information
developed, conceived or provided by the Employee within six (6) months after the
date of the termination of Employee's employment with Employer hereunder shall
be conclusively presumed to have been developed, conceived or provided during
the Employee's Term of Employment with the Employer.
2.3 Further Assurances. To the extent Employer deems necessary
or desirable to affect the intent of the assignments, transfers and set-overs
provided for in Sections 2.1 and 2.2 hereinabove, Employee, and his heirs,
assigns or representatives, shall, at the expense of Employer, assist Employer
or its nominees to obtain patents, copyrights, trademarks and tradename or
similar rights of protection (including any renewals or continuations thereof)
for any and all Information in any country or countries throughout the world.
Employee, and his heirs, assigns and representatives shall execute and deliver
any and all applications, assignments or other instruments necessary or
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desirable to secure United States or foreign patents, copyrights, trademarks and
tradenames or similar rights of protection (including any renewals or
continuations thereof), and to transfer to Employer, upon request, any and all
right, title or interest in and to any and all such Information. Employee, and
his heirs, assigns and representatives shall give Employer, upon request, any
and all facts known to him or them reflecting such Information with respect to
any of the foregoing, including, without limitation, any and all formulae,
processes, sketches, drawings, models and figures.
Section 3. Non-Disclosure.
Employee hereby acknowledges that Employer possesses certain
confidential and proprietary information, including, but not limited to client
and customer lists, supplier lists, data, figures, sales figures, projections,
estimates, tax records, personnel history, accounting procedures, bids, and
other information relating to the Employer's employees, clients, customers,
client and customer requirements, methods of client development, suppliers,
contractors, bidding techniques, pricing, research, and development and other
activities, services and business of the Employer (the foregoing being
hereinafter referred to collectively as "Confidential Information") and that
maintaining the confidential and proprietary nature of said Confidential
Information is essential to the continued commercial success of the Employer's
business and that said Confidential Information constitutes valuable and unique
assets which provide the Employer with a distinct competitive advantage over
competing businesses. Therefore, Employee hereby agrees that Employee shall not
disclose, divulge, or use in any manner any such Confidential Information except
as is specifically required in the performance of Employee's duties pursuant to
this Employment Agreement, and that Employee will not, under any circumstances,
communicate any such Confidential Information to any one not employed by the
Employer and/or specifically authorized in writing by the Employer to receive
such Confidential Information. It is expressly agreed that the foregoing
restrictions upon use, disclosure or communication of the aforementioned
Confidential Information shall be in full force and effect forever and shall
survive any termination of this Agreement, whether voluntary or involuntary, and
regardless of the reason for or manner of termination. Upon the termination of
this Agreement and Employee's employment hereunder, regardless of the reason for
or manner of termination, Employee agrees that Employee will deliver to the
Company all originals and all copies in the Employee's possession of any and all
documents of any nature containing, evidencing, or in any manner relating to any
Confidential Information as defined herein and shall not take any such
documentation with Employee upon said termination.
Section 4. Covenant Not To Compete.
4.1 Acknowledgment. Employee acknowledges that he is being
employed by the Employer in a position in which he will be expected to
independently develop and maintain close relationships with customers and
clients of the Employer and in which he will be provided with access to
confidential information of Employer, and that such customer relationships and
confidential information constitute a significant part of the goodwill of the
Employer, the preservation of which are essential to the success of the
Employer, and that the Employer has a legitimate interest in restricting
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Employee's ability to take advantage of such relationships and confidential
information. Employee further acknowledges that, in conjunction with this
Employment Agreement, and in further consideration of the covenants of Employee
set forth hereinbelow, Employee has been granted certain stock options by
Employer.
4.2 Non-Competition Agreement. In light of the foregoing, and
in consideration of the employment of Employee hereunder, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by Employee, Employee hereby covenants and agrees that, during the
Term of Employment and, upon termination, for a period equal to the then
remaining balance of the Term of Employment or one (1) year, whichever is
greater immediately following any termination of this Employment Agreement
and/or Employee's employment hereunder, whether voluntary or involuntary, and
regardless of the reason for or manner of termination, Employee shall not, alone
or with others, directly or indirectly (as owner, stockholder, partner, lender,
other investor, director, officer, employee, consultant, or otherwise):
(i) Solicit, perform or engage in any business of the same or similar
nature to the business of Employer anywhere within the Employer's territories as
hereinafter defined;
(ii) Solicit, engage in, perform, divert or accept any business of the same
or similar nature to the business of Employer with or from any customer or
potential customer of Employer; or
(iii) Induce or attempt to induce any customer of Employer to reduce such
customer's business with Employer or divert such customer's business from the
Employer, by direct advertising, solicitation or otherwise;
(iv) Disclose the names of any customers or potential customers of Employer
to any other person, firm, corporation or other entity; or
(v) Employ, hire, cause to be employed or hired, entice away, solicit, or
establish a business with any then current officer, employee, servant or agent
of Employer, or any other person who was employed by Employer within the twelve
(12) months immediately prior to such employment or establishment, or in any
manner persuade or attempt to persuade any officer, employee, servant or agent
of Employer to leave the employ of the Employer; or
(vi) Assist any person, firm, entity, employer, business associate or
member of Employee's family to commit any of the foregoing acts.
4.3 Definitions. For purposes of this Section 4, the following terms shall
have the meanings hereinafter set forth:
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(i) The term "customer" shall mean any person, firm, corporation or other
entity or any parent, subsidiary or affiliate thereof with which Employer has
had a contract, engaged in any business with or for which Employer has performed
any work or services during the twelve (12) months immediately preceding
Employee's termination and up to and including the date of Employee's
termination;
(ii) The term "potential customer" shall mean any person, firm, corporation
or other entity or any parent, subsidiary or affiliate thereof from which
Employer has solicited or attempted to solicit any business or to which Employer
has submitted any written or oral proposal within the twelve (12) months
immediately preceding Employee's termination and up to and including the date of
Employee's termination.
(iii) The term "Employer's territories" shall mean the United States of
America, including without limitation, each and every state or territory in
which Employer has conducted or solicited any business within the twelve (12)
months immediately preceding the date of Employee's termination and up to and
including the date of Employee's termination.
(iv) The phrase "business of the same or similar nature to the business of
Employer" shall mean the supplying of products, work or services which have the
same or similar characteristics as, or is competitive with, any products, work
or services engaged in, performed by or rendered by Employer at the time of the
termination of this Agreement and/or within the twelve (12) months immediately
preceding such termination and/or any products, work or services which have been
the subject of any solicitation or proposal by Employer within the twelve (12)
months immediately preceding such termination.
4.4 Enforcement. The covenants and obligations of Employee
pursuant to this Section 4 shall be specifically enforceable in addition to and
not in limitation of any other legal or equitable remedies, including monetary
damages, which Employer may have. Employee recognizes and acknowledges that
irreparable injury may result to Employer in its business in the event of any
breach by Employee of any covenant or agreement contained herein, and, by reason
of the foregoing, Employee consents and agrees that in the event of any such
breach, Employer shall be entitled, in addition to any other remedies that it
may have, including monetary damages, to an injunction to restrain Employee from
committing or continuing any violation of any covenant or agreement set forth in
this Section 4. It is the intent of the parties hereto that this Agreement
contains covenants which are valid and enforceable, which are reasonable and
necessary to safeguard the interests of Employer and which will be binding upon
Employee. Therefore, in the event that any of the obligations of Employee are
determined to be unreasonable or unenforceable because of the duration of such
provision, the area covered thereby or the scope thereof so as to render any of
the foregoing covenants unenforceable, then such a covenant shall be interpreted
as to require only a reasonable duration, area or scope, and any Court making
any such determination shall have the power to reduce the duration, area or
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scope of such provision and/or to delete or revise specific words and phrases,
and, in its reduced or revised form, such provisions shall be enforceable and
shall be enforced. In the event that Employer alleges that Employee has violated
any of the covenants contained herein and Employer seeks enforcement of such
covenants in any Court having jurisdiction thereof, Employer shall be entitled
to recover from Employee all reasonable attorney's fees and costs incurred by
Employer in prosecuting such litigation.
Section 5. Termination of Agreement.
5.1. Right to Terminate.
(a) Death. This Agreement shall terminate immediately upon Employee's
death.
(b) Disability. In the event that Employee, because of accident, disability
or physical or mental illness, is incapable of performing his duties hereunder,
unless otherwise prohibited by applicable law, Employer shall have the right to
terminate Employee's employment hereunder upon thirty (30) days prior written
notice to Employee. For purposes of this Section 5.1 (b), Employee shall be
deemed to have become incapable of performing his duties hereunder if he shall
have been incapable of so doing for (i) a continuous period of one hundred
eighty (180) days and remains so incapable at the end of such one hundred eighty
(180) day period; or (ii) periods amounting in the aggregate to one hundred
eighty (180) days within any one period of three hundred sixty-five (365) days
and remains so incapable at the end of such aggregate period of one hundred
eighty (180) days.
(c) Breach of Agreement. In the event that Employee breaches in any
material respect, or fails to comply in any material respect with, any of the
provisions of this Agreement, Employer shall, upon thirty (30) days prior
written notice to Employee specifying the nature of such breach or failure to
comply, have the right to terminate this Agreement and Employee's employment
hereunder, (i) if Employee fails to cure such breach or failure to comply, if
curable, within thirty (30) days after the giving of such notice; and (ii) upon
the expiration of such thirty (30) day period if such breach or failure to
comply cannot be cured.
(d) Cause. Employer shall have the right to terminate Employee's employment
hereunder for cause immediately without prior notice to Employee. The term
"cause" shall mean (i) Employee's willful failure or refusal to comply with
explicit directives of the Employer or to render the services required herein;
or (ii) misappropriation of any business opportunities; or (iii) dishonesty,
fraud, embezzlement, or misappropriation of funds, involving assets of the
Employer, its customers, suppliers, or any of their affiliates; or (iv)
indictment or charge of Employee by applicable governmental authorities with, or
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being convicted of, any criminal offense which adversely affects Employee's
ability to perform his duties hereunder or the reputation of Employer; or (v)
the willful and repeated breach or habitual neglect by Employee of his duties
under this Agreement or his duties as an Employee of Employer; or (vi) Employee
engaging in any acts or making statements which reflect adversely upon Employer,
its affiliates or subsidiaries or their business.
(e) Other. Employer shall have the right to terminate Employee's employment
hereunder for any other reason not specified in this Section 5.1, at Employer's
sole discretion, upon ten (10) days prior written notice to Employee; provided,
however, that in the event that Employer shall terminate the Employee's
employment pursuant to this Section 5.1(e), then Employee shall be entitled to
the following severance benefits:
(i) In the event that Employer shall terminate Employee's employment
pursuant to this Section 5.1(e) during the Initial Period of Employment,
Employer shall continue to pay Employee his Base Salary as set forth herein or
as then established, payable in accordance with Employer's normal payroll
procedures, and shall provide Employee with continued coverage under Employer's
medical and dental plans at the rate applicable to active employees, from the
effective date of termination until the later of (x) one (1) year following the
effective date of termination or (y) the remaining portion of the Initial Period
of Employment.. In addition to the aforementioned salary continuation, Employer
shall pay to Employee any deferred portion of any bonus awarded to Employee
under Employer's Management Incentive Compensation Plan and shall pay to
Employee a pro-rated portion of the bonus payable under said Plan for the
calendar year in which such termination occurs when, and if and only if, such
bonus is payable in accordance with the terms and conditions of the Plan.
(ii) In the event that Employer shall terminate Employee's employment
pursuant to this Section 5.1(e) at any time after the Initial Period of
Employment, Employer shall continue to pay Employee his Base Salary as set forth
herein or as then established, payable in accordance with Employer's normal
payroll procedures, and shall provide Employee with continued coverage under
Employer's medical and dental plans at the rate applicable to active employees,
for a period of one (1) year following the effective date of termination. In
addition to the aforementioned salary continuation, Employer shall pay to
Employee any deferred portion of any bonus awarded to Employee under Employer's
Management Incentive Compensation Plan and shall pay to Employee a pro-rated
portion of the bonus payable under said Plan for the calendar year in which such
termination occurs when, and if and only if, such bonus is payable in accordance
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with the terms and conditions of the Plan. Notwithstanding anything to the
contrary set forth herein, the provisions of this Section 5.1(e)(ii) shall be
void and of no further force and effect upon Employee attaining the age of sixty
(60) years.
(iii) In the event that a "Terminating Event," as defined hereinafter,
shall occur within one (1) year after a "Change in Control," as defined
hereinafter, then (i) Employer shall provide all severance benefits to Employee
in accordance with Section 5.1(e)(i) hereinabove in the event that such
Terminating Event shall occur during the Initial Period of Employment or such
severance benefits as provided for in Section 5.1(e)(ii) in the event such
Terminating Event shall occur any time after the Initial Period of Employment
and (ii) Employer shall reimburse Employee for the expenses of relocating to a
location within the State of South Carolina in accordance with the Employer's
Relocation Policy, Policy No. 602 attached hereto as Exhibit A. For purposes
hereof, a Change in Control shall be deemed to have occurred in the following
events: (i) as a direct result of any tender or exchange, merger,
reorganization, consolidation, or other business combination, any person, firm,
or entity, other than OHM Corporation or Rust International, Inc., shall hold a
majority of the then issued and outstanding shares of the Employer or (ii) the
sale or other disposition of all or substantially all of the assets of the
Employer (in one transaction or in a series of transactions). Further, for
purposes hereof, a Terminating Event shall mean (i) termination by the Employer
(or by any successor entity) of the employment of the Employee with the Employer
for any reason other than (A) death or (B) for cause, as defined in Section
5.1(d) hereinabove; or (ii) resignation of the Employee from the Employer,
within ninety (90) days after the occurrence of any of the following events: (A)
a reasonable determination by the Employee in good faith that there has been a
significant and substantial reduction in the scope of the Employee's
responsibilities, authorities, powers, functions, or duties from the
responsibilities, authorities, powers, functions, or duties exercised by the
Employee immediately prior to a Change in Control; (B) a ten (10%) percent
reduction in the Employee's total monetary compensation, including base salary,
bonuses, incentive compensation, material benefit plans, and all non-cash
personal benefits and perquisites which are susceptible of accurate and
objective measurement, as all of the same shall be in effect on the date of this
Agreement or as the same may be increased from time to time; or (C) the
relocation of the Employee from the office where the Employee is principally
employed immediately prior to the date of the Change in Control to a location
more than fifty (50) away. Notwithstanding anything to the contrary contained
herein, in the event that Employer shall become obligated to pay any severance
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benefits as specified in Sections 5.1(e)(i) or 5.1(e)(ii) due to the occurrence
of a Terminating Event after a Change in Control, Employee, at his option, may,
upon written notice to Employer, elect to accelerate the severance benefits
payable hereunder and to have said severance benefits payable in one (1) lump
sum within thirty (30) days of the date of Employee's termination, said
severance benefits to be discounted to present value utilizing such discount
rate as shall be reasonably designated by Employer.
(iv) It is the intention of the Employee and of the Employer that no
payments by the Employer to or for the benefit of the Employee under this
Agreement or any other agreement or plan, if any, pursuant to which Employee is
entitled to receive payments or benefits shall be non-deductible to the Employer
by reason of the operation of Section 280G of the Internal Revenue Code of 1986,
as amended ("Code") relating to parachute payments. Accordingly, and
notwithstanding any other provision of this Agreement or any other such
agreement of plan, if by reason of the operation of said Section 280G, any such
payments exceed the amount which can be deducted by the Employer, such payments
shall be reduced to the maximum amount which can be deducted by the Employer. To
the extent that payments exceeding such maximum deductible amount have been made
to or for the benefit of the Employee, such excess payment shall be refunded to
the Employer with interest thereon at the applicable federal rate determined
under Section 1274(d) of the Code, compounded annually, or at such other rate as
may be required in order that no such payment shall be non-deductible to the
Employer by reason of the operation of said Section 280G. To the extent that
there is more than one method of reducing the payments to bring them within the
limitation of said Section 280G, the Employee shall determine which method shall
be followed provided that if the Employee fails to make such a determination
within forty-five (45) days after the Employer has provided Employee written
notice of the need for such reduction, the Employer may determine the method of
such reduction in its sole discretion. If any dispute between the Employer and
the Employee as to any of the amounts to be determined under this Section
5(e)(v) or the method of calculating such amounts, cannot be resolved by the
Employer and the Employee, either the Employer or the Employee, after giving
three (3) days written notice to the other party, may refer the dispute to a
partner in the Boston office of a firm of independent certified public
accountants selected jointly by the Employer and the Employee. The determination
of such partner as to the amount to be determined under this Section 5(e)(v) and
the method of calculating such amount shall be final and binding on both the
Employer and the Employee. The Employer shall bear the costs of any such
determination.
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` f) Rights and Obligations of Employee Upon Termination.
(i) Upon the termination of Employee's employment pursuant to Sections 5.1
(a), (b), (c), (d), or (e) of this Agreement, Employer shall not have any
further obligation to Employee under this Agreement except (other than as
provided in Section 5.1 (e) above) to distribute to Employee his Base Salary due
pursuant to Section 1.3 (a) hereof (and accrued vacation pay) up to the date of
termination. Notwithstanding the foregoing, in the event that Employee's
employment pursuant to this Agreement shall be terminated pursuant to Sections
5.1(a) and 5.1(b), then Employer shall pay to Employee or the Employee's heirs
or personal representatives, as applicable, a pro-rated portion of the bonus
payable under the Employer's Management Incentive Compensation Plan for the
calendar year in which such termination occurs when, and if and only if, such
bonus is payable in accordance with the terms and conditions of the Plan.
(ii) Upon the termination of this Agreement and Employee's employment
hereunder, whether voluntary or involuntary, and regardless of the reason for or
manner of termination, all of the obligations of Employee under Sections 2.2,
2.3, 3, and 4 shall remain in full force and effect and shall survive the
termination of this Agreement to the extent set forth herein.
Section 6. Miscellaneous.
6.1 Remedies.
(a) Injunctions. Inasmuch as any breach of, or failure to comply with, this
Agreement will cause serious and substantial damage to Employer, if Employee
should in any way breach or fail to comply with the terms of this Agreement,
Employer shall be entitled to an injunction restraining Employee from such
breach or failure.
(b) Cumulative Remedies. All remedies of Employer expressly provided for
herein are cumulative of any and all other remedies now existing at law or in
equity. Employer shall, in addition to the remedies herein provided, be entitled
to avail itself of all such other remedies as may now or hereafter exist at law
or in equity for compensation, and for the specific enforcement of the covenants
contained herein. Resort to any remedy provided for hereunder or provided by law
shall not prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies, or preclude the recovery by Employer of monetary
damages.
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6.2 Amendment. This Agreement may be amended only by a writing duly
executed by the parties hereto.
6.3 Entire Agreement. This Agreement and any other agreements expressly
referred to herein set forth the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior contracts,
agreements, arrangements, communications, discussions, representations and
warranties, whether oral or written, between the parties regarding the subject
matter hereof.
6.4 Notice. For purposes of this Agreement, notices and communications
provided or permitted to be given hereunder shall be deemed to have been given
when (i) made by telex, telecopy or facsimile transmission; or (ii) sent by
overnight courier or mailed by United States registered or certified mail,
return receipt requested, postage prepaid to the parties at their addresses set
forth above, or at such other addresses as either may designate in writing as
aforesaid from time to time.
6.5 Assignment. This Agreement is personal as to Employee and shall not be
assignable by Employee. Employer may assign its rights under this Agreement to
any person, firm, corporation, or other entity which may acquire all or
substantially all of the business which is now or hereafter conducted by
Employer or which may require substantially all of the assets of Employer or
with or into which Employer may be consolidated or merged, provided, that any
such assignment shall be subject to the express terms and conditions hereof.
6.6 Governing Law. This Agreement shall in all respects be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts.
6.7 Severability. Each section and subsection of this Agreement constitutes
a separate and distinct provision hereof. It is the intent of the parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applicable in each jurisdiction
in which enforcement is sought. Accordingly, if any provision of this Agreement
shall be adjudicated to be invalid, ineffective or unenforceable, the remaining
provisions shall not be affected thereby. The invalid, ineffective or
unenforceable provisions shall, without further action by the parties, be
automatically amended to affect the original purpose and intent of the invalid,
ineffective and unenforceable provision; provided, however, that such amendment
shall apply only with respect to the operation of such provision in the
particular jurisdiction with respect to which such adjudication is made.
6.8. Waiver. The failure of Employer to insist upon strict adherence to any
term of this Agreement on any occasion shall not be construed as a waiver of or
deprive Employer of the right thereafter to insist upon strict adherence to that
term or any other term of this Agreement. Any waiver by Employer must be in
writing and signed by a duly authorized representative of Employer other than
Employee.
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6.9 Headings. The headings of this Agreement are solely for convenience of
reference and shall not be given any effect in the construction or
interpretation of this Agreement.
6.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
6.11 Third Parties. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person or entity
other than Employer and Employee any rights or remedies under, or by reason of,
this Agreement.
6.12 Income Tax Reporting. As a condition to Employee's entitlement to all
amounts to be paid hereunder, Employee shall report the Base Salary, portion of
the allowances attributable to personal use and any bonuses paid to Employee as
earned income for federal, state or local income tax purposes.
6.13 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective parties hereto and their heirs, personal
representatives, successors and permitted assigns.
IN WITNESS WHEREOF, NSC Corporation has caused this Agreement to be duly
executed and delivered by its duly authorized officer, and Employee has duly
executed and delivered this Agreement, as of the date first above written, the
parties intending this document to take effect as a sealed instrument.
Employer:
NSC CORPORATION
By: /S/ XXXXXXX X. XXXX
Name: Xxxxxxx X. Xxxx
Title: Chairman, Compensation Committee
Employee:
/s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
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