Exhibit 10.45
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 1st day of April, 2000 by and
between Xxx Xxxx a resident of Nebraska, (the "Employee"), and ImageMax, Inc., a
corporation organized and existing under the laws of the Commonwealth of
Pennsylvania (the "Company").
WHEREAS, the Company and Employee previously entered into an Employment
Agreement dated as of December 9, 1997; and
WHEREAS, the Company desires to continue to employ Employee and Employee
desires to continue to be employed by the Company for a period of time in the
future upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and intending to be legally bound, the parties, subject to the
terms and conditions set forth herein, agree as follows:
1. Employment and Term. The Company hereby employs and continues to employ
Employee and Employee hereby accepts employment with the Company, as Executive
Vice President and Chief Technology Officer (the "Position") for a period
commencing on the date hereof and continuing until December 31, 2002, subject to
early termination pursuant to the provisions of Section 9 hereof (the "Initial
Term") and as may be extended from time to time by mutual consent of Employer
and Employee. The Initial Term of employment and any renewal periods hereunder,
subject to the provisions of Section 9 hereof, are hereinafter referred to as
the "Term."
2. Duties. During the Term, Employee shall serve the Company faithfully and
to the best of his ability and shall devote his full time, attention, skill and
efforts to the performance of the duties required by or appropriate for his
Position. Employee agrees to assume such duties and responsibilities as may be
customarily incident to such position, and as may be reasonably assigned to
Employee from time to time by the Chief Operating Officer of the Company, if
any, and otherwise by the Chief Executive Officer. Employee shall report,
throughout the Term, to the Chief Operating Officer of the Company, if any, and
otherwise to the Chief Executive Officer. Employee shall perform his duties from
the Company's office in Lincoln, Nebraska, but shall travel to the extent
reasonably necessary to perform the duties hereunder. If the employee is
required to travel internationally (excluding North America), it shall be in
business class.
3. Other Business Activities. During the Term, Employee will not, without
the prior written consent of the Company, directly or indirectly engage in any
other business activities or pursuits whatsoever, except such activities in
connection with any charitable or civic activities, personal investments and
serving as an executor, trustee or in other similar fiduciary
capacity as do not interfere with his performance of his responsibilities and
obligations pursuant to this Agreement.
4. Compensation.
4.1 The Company shall pay Employee, and Employee hereby agrees to
accept, as compensation for all services rendered hereunder and for Employee's
covenant not to compete as provided for in Section 8 hereof, a base salary at
the annual rate of One Hundred Fifty Thousand Dollars ($150,000) (as the same
may hereafter be increased, the "Base Salary"), which shall continue as such for
the remainder of the Term unless otherwise increased pursuant to this Section 4
of this Agreement. The Base Salary shall be inclusive of all applicable income,
social security and other taxes and charges which are required by law to be
withheld by the Company or which are requested to be withheld by Employee, and
which shall be withheld and paid in accordance with the Company's normal payroll
practice for its similarly situated employees from time to time in effect.
Increases in the Base Salary may be granted from time to time at the sole
discretion of the Company. In addition to the Base Salary, the Company shall pay
Employee, within thirty (30) days after receipt of the final audit for each
fiscal year, a bonus (the "Bonus") in the same manner as for similarly situated
employees. Such Bonus shall be based on the guidelines established by the
Company in advance of each fiscal year under the Company's formal incentive
compensation plan, including, but not limited to, the results of the Company's
operations, achievement of business unit targets, if applicable, and individual
performance as compared to specific management objectives set prior to each
fiscal year. Payment of any Bonus upon termination of Employee shall be paid in
accordance with Section 9 hereof.
4.2 In addition to the foregoing Section 4.1, the Company shall grant
to the Employee an incentive stock option (the "Option") to purchase seventy
five thousand (75,000) shares of Common Stock, no par value, of the Company
("Common Stock"). The Option shall be an incentive stock option. The Option
shall be subject to and in accordance with the provisions of the 1997 Incentive
Plan of the Company, as amended (the "Plan") and shall vest in accordance with
the terms set forth in the Incentive Stock Option Agreement between the Company
and the Employee dated as of February 15, 2000. In addition to the Option, the
Company may grant to the Employee additional stock options under the Plan as
determined by the Compensation Committee of the Board from time to time in its
sole discretion.
5. Benefits and Expenses. Except as otherwise provided in this Agreement or
in Schedule A attached hereto, the Employee shall be entitled to (i) all
standard benefits for executive level vice-presidents of the Company and (ii)
those benefits set forth on Schedule A hereto (collectively, "Benefits").
6. Confidentiality. Employee recognizes and acknowledges that the
Proprietary Information (as hereinafter defined) is a valuable, special and
unique asset of the Business of the Company. As a result, both during the Term
and thereafter, Employee shall not, without the prior written consent of the
Company, for any reason, either directly or indirectly, divulge to any
third-party or use for his own benefit, or for any purpose other than the
exclusive
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benefit of the Company, any confidential, proprietary, business and technical
information or trade secrets of the Company or of any subsidiary or affiliate of
the Company ("Proprietary Information") revealed, obtained or developed in the
course of his employment with the Company. Nothing herein contained shall
restrict Employee's ability to make such disclosures as may be necessary or
appropriate to the effective and efficient discharge of the duties required by
or appropriate for his Position or as such disclosures may be required by law;
and further provided, that nothing herein contained shall restrict Employee from
divulging or using for his own benefit or for any other purpose any Proprietary
Information that is readily available to the general public so long as such
information did not become available to the general public as a direct or
indirect result of Employee's breach of this Section 6. Failure by the Company
to xxxx any of the Proprietary Information as confidential or proprietary shall
not affect its status as Proprietary Information under the terms of this
Agreement.
7. Property.
(a) All right, title and interest in and to Proprietary
Information shall be and remain the sole and exclusive property of the Company.
During the Term, Employee shall not remove from the Company's offices or
premises any documents, records, notebooks, files, correspondence, reports,
memoranda or similar materials of or containing Proprietary Information, or
other materials or property of any kind belonging to the Company unless
necessary or appropriate in accordance with the duties and responsibilities
required by or appropriate for his Position and, in the event that such
materials or property are removed, all of the foregoing shall be returned to
their proper files or places of safekeeping as promptly as possible after the
removal shall serve its specific purpose. Employee shall not make, retain,
remove and/or distribute any copies of any of the foregoing for any reason
whatsoever except as may be necessary in the discharge of his assigned duties
and shall not divulge to any third person the nature of and/or contents of any
of the foregoing or of any other oral or written information to which he may
have access or with which for any reason he may become familiar, except as
disclosure shall be necessary in the performance of his duties or as otherwise
permitted pursuant to Section 6 hereof; and upon the termination of his
employment with the Company, he shall leave with or return to the Company all
originals and copies of the foregoing then in his possession, whether prepared
by Employee or by others.
(b) (i) Employee agrees that all right, title and interest in and
to any innovations, designs, systems, analyses, ideas for marketing programs,
and all copyrights, patents, trademarks and trade names, or similar intangible
personal property which have been or are developed or created in whole or in
part by Employee (1) at any time and at any place while the Employee is employed
by Company and which, in the case of any or all of the foregoing, are related to
and used in connection with the Business of the Company, (2) as a result of
tasks assigned to Employee by the Company, or (3) from the use of premises or
personal property (whether tangible or intangible) owned, leased or contracted
for by the Company (collectively, the "Intellectual Property"), shall be and
remain forever the sole and exclusive property of the Company. The Employee
shall promptly disclose to the Company all Intellectual Property, and the
Employee shall have no claim for additional compensation for the Intellectual
Property.
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(ii) The Employee acknowledges that all the Intellectual
Property that is copyrightable shall be considered a work made for hire under
United States Copyright Law. To the extent that any copyrightable Intellectual
Property may not be considered a work made for hire under the applicable
provisions of the United States Copyright Law, or to the extent that,
notwithstanding the foregoing provisions, the Employee may retain an interest in
any Intellectual Property that is not copyrightable, the Employee hereby
irrevocably assigns and transfers to the Company any and all right, title, or
interest that the Employee may have in the Intellectual Property under
copyright, patent, trade secret and trademark law, in perpetuity or for the
longest period otherwise permitted by law, without the necessity of further
consideration. The Company shall be entitled to obtain and hold in its own name
all copyrights, patents, trade secrets, and trademarks with respect thereto.
(iii) Employee further agrees to reveal promptly all
information relating to the same to an appropriate officer of the Company and to
cooperate with the Company and execute such documents as may be necessary or
appropriate (1) in the event that the Company desires to seek copyright, patent
or trademark protection, or other analogous protection, thereafter relating to
the Intellectual Property, and when such protection is obtained, to renew and
restore the same, or (2) to defend any opposition proceedings in respect of
obtaining and maintaining such copyright, patent or trademark protection, or
other analogous protection.
(iv) In the event the Company is unable after reasonable
effort to secure Employee's signature on any of the documents referenced in
Section 7(b)(iii) hereof, whether because of Employee's physical or mental
incapacity or for any other reason whatsoever, Employee hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents
as Employee's agent and attorney-in-fact, to act for and in his behalf and stead
to execute and file any such documents and to do all other lawfully permitted
acts to further the prosecution and issuance of any such copyright, patent or
trademark protection, or other analogous protection, with the same legal force
and effect as if executed by Employee.
8. Noncompetition.
8.1 Covenant Not to Compete. The Employee shall not, during the Term,
including any extensions of the Term, and during the Restricted Period, as
hereinafter defined, do any of the following directly or indirectly without the
prior written consent of the Company:
(a) compete with the Company or any of its respective affiliates
or subsidiaries, or any of their respective successors or assigns, whether now
existing or hereafter created or acquired (collectively, the "Related
Companies"), in any document management business conducted during the Term or,
as of the date of this Agreement, contemplated to be conducted during the Term
of this Agreement (as has been determined by the Board) or in any other business
conducted by the Company in which the Employee is or has been actively engaged
(the "Restricted Business") within any geographic area located within the United
States of America, its possessions or territories (the "Restricted Area");
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(b) become interested (whether as owner, stockholder, lender,
partner, co-venturer, director, officer, employee, agent, consultant or
otherwise) in any person, firm, corporation, association or other entity that
competes with the Related Companies in the Restricted Business within the
Restricted Area; provided, however, that nothing contained in this Section 8(b)
shall prohibit Employee from owning, as a passive investor, not more than five
percent (5%) of the outstanding securities of any class of any publicly-traded
securities of any publicly held company listed on a well-recognized national
securities exchange or on an interdealer quotation system of the National
Association of Securities Dealers, Inc;
(c) influence or attempt to influence any supplier, customer or
prospective customer of the Company or any of the Related Companies to terminate
or modify any written or oral agreement or course of dealing with the Company or
the Related Companies; or
(d) influence or attempt to influence any person (other than a
family member) to either (i) terminate or modify his employment, consulting,
agency, distributorship or other arrangement with the Company or any of the
Related Companies, or (ii) employ or retain, or arrange to have any other person
or entity employ or retain, any person who has been employed or retained by the
Company or any of the Related Companies as an employee, consultant, agent or
distributor of the Company or the Related Companies at any time during the
one-year period immediately preceding the termination of Employee's employment
hereunder.
8.2 Restricted Period. Other than as specifically provided in this
Section 8.2, the Restricted Period shall begin on the date of the termination of
this Agreement and shall continue for a period of twelve (12) months thereafter,
provided, however, that if this Agreement is not renewed upon the expiration of
the Initial Term, the Restricted Period shall begin on the date of such
expiration and shall continue for a period of six (6) months thereafter.
8.3 Forfeiture of Options. Notwithstanding any other provision of this
Agreement, any unexercised stock options or unvested stock award shall become
nonexercisable and shall be forfeited if the Employee is terminated pursuant to
Section 8.1 hereof.
9. Termination. Employee's employment hereunder may be terminated during
the Term upon the occurrence of any one of the events described in this Section
9. Upon termination, Employee shall be entitled only to such compensation and
benefits as described in this Section 9.
9.1 Termination for Disability.
(a) In the event of the disability of the Employee such that
Employee is unable to perform his duties and responsibilities hereunder to the
full extent required by this Agreement by reasons of illness, injury or
incapacity for a period of more than one hundred twenty (120) consecutive days
or more than one hundred eighty (180) days, in the aggregate, during any seven
hundred thirty (730) day period ("Disability"), Employee's employment hereunder
may be terminated by the Company by notice to Employee pursuant to a
determination by the Chief Executive Officer.
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(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 9.1(a), Employee will be entitled to receive all
accrued and unpaid (as of the date of such termination) Base Salary, Benefits,
Earned Bonus (as defined in the Plan) and other forms of compensation and
benefits payable or provided in accordance with the terms of any then existing
compensation or benefit plan or arrangement ("Other Compensation"), including
payment prescribed under any disability or life insurance plan or arrangement in
which he is a participant or to which he is a party as an employee of the
Company. Except as specifically set forth in this Section 9.1(b), the Company
shall have no liability or obligation to Employee for compensation or benefits
hereunder by reason of such termination.
(c) For purposes of this Section 9.1, except as hereinafter
provided, the determination as to whether Employee is Disabled shall be made by
a licensed physician selected by Employee and shall be based upon a full
physical examination and good faith opinion by such physician. In the event that
the Chief Executive Officer disagrees with such physician's conclusion, the
Chief Executive Officer may require that Employee submit to a full physical
examination by another licensed physician selected by Employee and approved by
the Company. If the two opinions shall be inconsistent, a third opinion shall be
obtained after full physical examination by a third licensed physician selected
by Employee and approved by the Company. The majority of the three opinions
shall be conclusive.
9.2 Termination by Death. In the event that Employee dies during the
Term, Employee's employment hereunder shall be terminated thereby and the
Company shall pay to Employee's executors, legal representatives or
administrators an amount equal to the accrued and unpaid portion of his Base
Salary, Benefits, Earned Bonus and Other Compensation through the end of the
month in which he dies. Except as specifically set forth in this Section 9.2,
the Company shall have no liability or obligation hereunder to Employee's
executors, legal representatives, administrators, heirs or assigns or any other
person claiming under or through him by reason of Employee's death, except that
Employee's executors, legal representatives or administrators will be entitled
to receive the payment prescribed under any death or disability benefits plan in
which he is a participant as an employee of the Company, and to exercise any
rights afforded under any compensation or benefit plan then in effect.
9.3 Termination By Company for Cause.
(a) The Company may terminate Employee's employment hereunder at
any time for "cause" upon written notice to Employee based upon a good faith
determination by the Chief Executive Officer. The good-faith nature of the
determination shall not in and of itself mean that "cause" exists. For purposes
of this Agreement, "cause" shall mean: (i) any material breach by Employee of
any of his obligations under Section 6, 7, or 8 of this Agreement, if not cured
within 30 days notice from the company, (ii) gross incompetence in the
performance by Employee of the duties required by or appropriate for his
Position, if not cured within thirty (30) days notice from the Company, (iii) a
material violation, that is not cured within 30 days notice from the company, of
the Company's employee policies, as may be
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amended from time to time, or (iv) other conduct of Employee involving any type
of willful misconduct with respect to the Company, including without limitation
fraud, embezzlement, theft or proven dishonesty in the course of his employment
or conviction of a felony.
(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 9.3(a), Employee shall be entitled to receive all
accrued but unpaid (as of the effective date of such termination) Base Salary,
Benefits and Other Compensation. All Base Salary and Benefits shall cease at the
time of such termination, subject to the terms of any benefit or compensation
plan then in force and applicable to Employee. Except as specifically set forth
in this Section 9.3, the Company shall have no liability or obligation hereunder
by reason of such termination.
9.4 Termination By Company Without Cause.
(a) The Company may terminate Employee's employment hereunder at
any time, for any reason, without cause, effective upon the date designated by
the Company upon fifteen (15) days notice to Employee.
(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 9.4(a), Employee shall be entitled to receive all
accrued but unpaid (as of the effective date of such termination) Base Salary,
Benefits, Earned Bonus and Other Compensation, plus continuation of the then
current Base Salary and Benefits (including vesting of options and other
Benefits) for a period of twelve (12) months thereafter. Except as specifically
set forth in this Section 9.4, the Company shall have no liability or obligation
hereunder by reason of such termination.
9.5 Termination By Employee
(a) Employee may terminate Employee's employment hereunder upon
sixty (60) days notice of the termination of his employment hereunder pursuant
to this Section 9.5(a) (the date the Employee gives such notice shall be herein
referred to as the "Request Date"). Notwithstanding the foregoing, upon receipt
by the Company of such written notice of termination, the Company in its sole
discretion, may deem such termination effective immediately (the "Accelerated
Termination Date"). In the event the parties mutually agree to an alternative
date of termination, that date shall be considered the Request Date.
(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 9.5(a) hereof, Employee shall be entitled to
receive all accrued but unpaid (as of the earlier of the Request Date or the
Accelerated Termination Date), Base Salary and Benefits. If the Company does not
terminate the Employee immediately upon receipt of the termination notice and
Employee performs his duties in a satisfactory manner, as determined in the sole
discretion of the Company, until the Request Date, Employee shall also be
entitled to an amount equal to one month's Base Salary (in effect at such time).
In addition, in the event of a termination of Employee's employment pursuant to
Section 9.5(a) at the end of the Term upon sixty days (60) prior written notice
and upon the satisfactory completion, in the sole discretion of
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the Company, of Employee's duties during the 60-day period after receipt of such
termination notice, Employee shall be entitled to receive an amount equal to one
month's Base Salary (in effect at such time) multiplied by the number of the
complete 12-month periods of ImageMax service (whether or not pursuant to this
Agreement) completed prior to giving notice of termination. Except as
specifically set forth in this Section 9.5(b), all Base Salary, Benefits and
Bonuses shall cease at the time of such termination, subject to the terms of any
benefit or compensation plan then in force and applicable to Employee. Except as
specifically set forth in this Section 9.5, the Company shall have no liability
or obligation hereunder by reason of such termination.
9.6 Sale of Company/Change of Control.
(a) If there is a Sale of the Company or a Change of Control
during the Term, then the Company or the successor to all or substantially all
of the Company's assets, capital stock or business (the "Successor Entity"), as
the case may be, must offer Employee employment pursuant to a written contract
offer (the "Offer") within five (5) days of such Sale of the Company or Change
of Control. Employee shall, within fifteen (15) days after receipt of such
Offer, either (i) accept the terms of the Offer, such acceptance indicated by
return of a copy of the Offer duly executed, (ii) elect in writing, provided to
the Company or the Successor Entity, as the case may be, to remain employed
under this Agreement for the remainder of the Term, or (iii) elect to terminate
Employee's employment hereunder upon sixty (60) days prior notice, such
termination to be effective at the expiration of said sixty (60) day period, or
sooner, if desired by the Company or the Successor Entity.
(b) For purposes of this Agreement, a "Change of Control" means
either (i) the sale, transfer, assignment or other disposition by stockholders
of the Company, in one transaction or a series of related transactions, of more
than thirty percent (30%) of either the outstanding shares of common stock or
the combined voting power represented by the Company's then outstanding voting
securities entitled to vote generally or the approval by the stockholders of the
Company of a reorganization, merger or consolidation, in each case, with respect
to which persons who were stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
company's then outstanding securities, in a liquidation or dissolution of
Company or of the sale of all or substantially all of Company's assets, other
than (A) any such sales, transfers, assignments or other dispositions by such
stockholders to their respective Affiliates, (B) any such transaction effected
primarily to reincorporate the Company in another jurisdiction or (C) any
transaction in connection with the simultaneous acquisition of document
management companies and the initial public offering of the common stock of the
Company or its affiliate; or (ii) a majority of members of the Company's Board
of Directors is replaced during any 12-month period by directors whose
appointment or election is not advised by a majority of the members of the
Company's Board of Directors prior to the date of the appointment or election.
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(c) For purposes of this Agreement, "Affiliate" means, with
respect to any stockholder of the Company, (i) any Person directly or indirectly
controlling, controlled by or under common control with such stockholder, (ii)
any Person owning or controlling ten percent (10%) or more of the outstanding
voting securities of such stockholder, (iii) any officer, director or general
partner of such stockholder, or (iv) any Person who is an officer, director,
general partner, trustee or holder of ten percent (10%) or more of the
outstanding voting securities of any Person described in clauses (i) through
(iv) of this paragraph (c).
(d) For purposes of this Agreement, "Person" means an individual,
partnership, corporation, joint venture, association, trust, unincorporated
association, other entity or association.
(e) For purposes of this Agreement, a "Sale of the Company" means
a sale, transfer, assignment or other disposition (including by merger or
consolidation), of all of the outstanding stock of the Company, or of all or
substantially all of the assets of the Company, a liquidation or dissolution of
the Company. A "Sale of the Company" shall not include the consummation of a
public offering of Common Stock of the Company or its affiliate pursuant to a
registration statement or any transaction effected primarily to reincorporate
the Company in another jurisdiction.
(f) In the event of termination of Employee's employment
hereunder pursuant to clause (iii) in paragraph (a) above, Employee shall be
entitled to receive all accrued but unpaid (as of the effective date of such
termination) Base Salary, Benefits and Earned Bonus and Other Compensation. In
addition, in such case Employee shall be entitled to receive Base Salary and
Benefits for the twelve (12) months following the effective date of such
termination (the "Additional Amount"). At his sole option, Employee may receive
the Additional Amount paid either (i) monthly for twelve (12) months, or (ii) in
one payment on the effective date of such termination, in which case the value
of the Benefits otherwise payable will be monetized, and such payment of the
Additional Amount will be discounted at the then current Federal Short Term Rate
as defined in the Internal Revenue Code of 1986, as amended.
(g) In the event Employee chooses to continue employment
hereunder pursuant to clause (i) or (ii) in paragraph (a) above and Employee's
employment is thereafter terminated prior to the expiration of the Term for any
reason other than Death, Disability or termination pursuant to clause (iii) in
paragraph (a) above, Employee shall be entitled to receive all the benefits and
compensation referred to in paragraph (f) above. In the event Employee chooses
to continue employment hereunder pursuant to clause (ii) in paragraph (a) above,
at the expiration of the Term, Employee shall be entitled to receive an amount
equal to two months' Base Salary (in effect at such time) multiplied by the
number of complete 12-month periods of service completed prior to such
termination
(h) If this Agreement is assumed by any Successor Entity, any
payments set forth herein shall be the obligation of such Successor Entity.
Except as specifically set forth in this Agreement, (i) all Base Salary,
Benefits and Bonuses shall cease at the time of such termination, subject to the
terms of any benefit or compensation plans then in force and
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applicable to Employee, and (ii) the Company shall have no liability or
obligation hereunder by reason of such termination.
(i) If the Successor Entity fails to make the Offer, Employee
shall be entitled to receive all of the benefits and compensation referred to in
paragraph (f) above.
9.7 Severance Upon Expiration of the Initial Term. If this Agreement
is not renewed by the parties upon the expiration of the Initial Term, Employee
shall be entitled to receive all accrued but unpaid (as of the effective date of
such termination) Base Salary, Benefits, Earned Bonus and Other Compensation,
plus continuation of the then current Base Salary and Benefits (including
vesting of options and other Benefits) for a period of six (6) months
thereafter. Except as specifically set forth in this Section 9.7, the Company
shall have no liability or obligation hereunder by reason of such termination.
10. Other Agreements. Employee represents and warrants to the Company that:
(a) There are no restrictions, agreements or understandings
whatsoever to which Employee is a party which would prevent or make unlawful
Employee's execution of this Agreement or Employee's employment hereunder, or
which is or would be inconsistent or in conflict with this Agreement or
Employee's employment hereunder, or would prevent, limit or impair in any way
the performance by Employee of his obligations hereunder,
(b) That Employee's execution of this Agreement and Employee's
employment hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which Employee is a party or by which
Employee is bound, and
(c) That Employee is free to execute this Agreement and to enter
into the employ of the Company pursuant to the provisions set forth herein.
(d) In the event that they are still in effect, that Employee
shall disclose the existence and terms of the restrictive covenants set forth in
this Agreement to any employer that the Employee may work for during the term of
this Agreement (which employment is not hereby authorized) or after the
termination of the Employee's employment at the Company.
11. Survival of Provisions. The provisions of this Agreement set forth in
Sections 6, 7, 8, 9, 21 and 22 hereof shall survive the termination of
Employee's employment hereunder.
12. Indemnification. The Company shall indemnify the Employee from and
against any and all losses, costs, damages or expenses the Employee may sustain
by reason of his
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employment hereunder in the same manner and to the same extent as the executive
officers of the Company.
13. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and Employee and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided, however,
that neither Employee nor the Company may make any assignments of this Agreement
or any interest herein, by operation of law or otherwise, without the prior
written consent of the other party hereto, except that, without such consent,
the Company may assign this Agreement to an Affiliate or any successor to all or
substantially all of its assets and business by means of liquidation,
dissolution, merger, consolidation, transfer of assets, or otherwise, provided
that such successor assumes in writing all of the obligations of the Company
under this Agreement, subject, however, to Employee's rights as to termination
as provided in Section 9.6 hereof.
14. Notice. Any notice or communication required or permitted under this
Agreement shall be made in writing and sent by certified or registered mail,
return receipt requested, addressed as follows:
If to Employee:
Xxx Xxxx
[Address]
If to Company:
Xxxx Xxxxxxxx
ImageMax, Inc.
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
or to such other address as either party may from time to time duly specify by
notice given to the other party in the manner specified above.
15. Entire Agreement; Amendments. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the subject matter
hereof, and merges and supersedes all prior and contemporaneous discussions,
agreements and understandings of every nature between the parties hereto
relating to the employment of Employee with the Company. This Agreement
specifically supersedes the Employment Agreement between the Company and
Employee dated December 9, 1997. This Agreement does not supersede any provision
of the Purchase and Sale Agreement by and between Company and Employee dated as
of December 9, 1997, including any noncompetition agreement set forth therein.
This Agreement may not be changed or modified, except by an agreement in writing
signed by each of the parties hereto.
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16. Waiver. The waiver of the breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
17. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
18. Invalidity. In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
the validity of any other provision of this Agreement, and such provision(s)
shall be deemed modified to the extent necessary to make it enforceable.
19. Section Headings. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
20. Number of Days. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and legal
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or day which is a holiday in Philadelphia, Pennsylvania, then
such final day shall be deemed to be the next day which is not a Saturday,
Sunday or legal holiday.
21. Specific Enforcement; Extension of Period.
(a) Employee acknowledges that the restrictions contained in
Sections 6, 7, and 8 hereof are reasonable and necessary to protect the
legitimate interests of the Company and its affiliates and that the Company
would not have entered into this Agreement in the absence of such restrictions.
Employee also acknowledges that any breach by him of Sections 6, 7, or 8 hereof
will cause continuing and irreparable injury to the Company for which monetary
damages would not be an adequate remedy. The Employee shall not, in any action
or proceeding to enforce any of the provisions of this Agreement, assert the
claim or defense that an adequate remedy at law exists. In the event of such
breach by Employee, the Company shall have the right to enforce the provisions
of Sections 6, 7, and 8 of this Agreement by seeking injunctive or other relief
in any court, and this Agreement shall not in any way limit remedies of law or
in equity otherwise available to the Company. If an action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover, in addition to any other relief, reasonable
attorneys' fees, costs and disbursements. In the event that the provisions of
Sections 6, 7, or 8 hereof should ever be adjudicated to exceed the time,
geographic, or other limitations permitted by applicable law in any applicable
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, or other limitations permitted by applicable
law.
(b) In the event that Employee shall be in breach of any of the
restrictions contained in Section 8 hereof, then the Restricted Period shall be
extended for a period of time equal to the period of time that Employee is in
breach of such restriction.
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22. Arbitration. In the event that the parties are unable to resolve any
disputes arising hereunder, such dispute shall be submitted for a binding
determination by a neutral third party designated by the President of the
Philadelphia office of the American Arbitration Association.
23. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first written above.
IMAGEMAX, INC.
By:
-----------------------------------
Name:
-------------------------
Title:
------------------------
--------------------------------------
Xxx Xxxx
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SCHEDULE A
1. Life Insurance. Company will provide Employee, at no expense to the
Employee, life insurance coverage in an amount equal to three (3) times
Employee's initial Base Salary.
2. Vacation. The Employee shall be entitled to twenty (20) days per year of
paid vacation.
3. Business Travel Accident Insurance. Company will provide Employee, at no
expense to the Employee, business travel accident insurance coverage in an
amount equal to six (6) times Employee's base salary through either: (i) a
group policy covering similarly situated employees, or (ii) a policy
specific to Employee, depending on the cost and availability of coverage.
B-1
