EXHIBIT 10.4.3
EMPLOYMENT AGREEMENT
The Agreement (Agreement), dated October 14, 1997, is between The JPM
Company (Company), a Pennsylvania corporation and Xxxxx X. Xxxxxxxxx (Employee).
The Parties, intending to be legally bound, agree as follows:
1. Employment. The Company hereby employs Employee and the Employee hereby
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accepts employment upon the terms and conditions contained in this Agreement.
2. Term. The term of this Agreement is indefinite.
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3. Duties. During the employment period, the Employee will devote his full
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working time and best efforts to the Company in fulfilling the duties of his
position. His initial title shall be Executive Vice President, General Counsel,
and Corporate Secretary. The principle duties of the position shall include
3.1. Coordination and control of all Company legal activities;
3.2. Oversight of merger and acquisition agreements and integration
planning;
3.3. Administrative oversight of global human resources functions.
3.4. Such additional duties as are assigned from time to time by the
Company through Xxxx X. Xxxxxxx, CEO or Xxxxx X. Xxxxxxx, COO, to both or either
of whom he shall solely report.
4. Compensation.
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4.1. Salary. The Employees base salary shall be One Hundred Seventy
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Five Thousand Dollars ($175,000) per year payable in monthly installments,
subject to increase by the Board of Directors, which shall review the salary
periodically. The salary shall not be decreased without the consent of Employee.
4.2. Signing Bonus. The Employee shall receive an additional twenty
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five thousand ($25,000) upon commencement of work, which shall be payable on or
before September 30, 1997.
4.3. Incentive Compensation. For each year of employment, Employee
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shall be eligible to receive a cash bonus in an amount equal to twenty percent
(20%) of his base salary, provided that the Company satisfies its
financial objectives for which the bonus is paid.
4.4. Benefits. Employee will be eligible to participate, to the
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extent it is legal and permitted by the benefits contracts, in all benefit
programs of the Company which are in effect for its executive personnel from
time to time. Employee shall be entitled each year to vacation for a period of
time consistent with the normal policy of the Company, during which period
Employees compensation shall be paid in full. If any modifications of the
benefit package result in a net reduction in compensation to the Employee, the
Company will pay Employee a cash equivalent.
4.5. Special Benefits.
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4.5.1. Car. Employee shall receive a car allowance which shall
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permit use of a automobile with a purchase price no greater than thirty thousand
dollars ($30,000), or an allowance of up to $7,500 per year, at the option of
Company.
4.5.2. Deferred Compensation. For each year of employment,
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Employee shall receive as deferred compensation an amount equal to ten percent
of his annual base salary. Company shall permit Employee to enroll in any
further deferred compensation plan which would permit Employee to defer up to
twenty five percent (25%) of his total income.
4.5.3. Stock Options. Company shall issue 20,000 stock options to
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Employee, the date of Agreement signing, which options shall be issued at market
value as of the date of employment.
4.5.4. Dues and Fees. Company recognizes that Employee will
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require professional, technical and technological support for performance of the
functions assigned to him. Company agrees to reimburse Employee, or to directly
pay, for professional dues, fees, insurances, and resources appropriate and
necessary to the performance of his duties, including membership in professional
organizations of assistance in such performance.
4.5.5. Support Staff. An administrative support person shall
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be assigned to Employee which person may be assigned additional duties from time
to time by Company. That person shall be employed at an initial salary range of
$33 35,000, together with standard Company benefits customarily available to
such personnel.
4.5.6. Index. All references within this agreement to dollar
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amounts are calculated on the basis of September 1, 1997 valuations and shall be
subject to adjustment from time to time for inflation.
5. Acknowledgment. Employee acknowledges that the Companys
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business and services are highly specialized, that the identity and particular
needs of the Companys customers and suppliers are not generally known and that
the documents and information regarding the Companys customers, suppliers,
services and methods of operation, sales, pricing and costs are highly
confidential and constitute trade secrets. Employee further acknowledges that
the services rendered to the Company by Employee have been or will be of special
and unusual character which have unique value to the Company and that Employee
has had or will have access to trade secrets and confidential information
belonging to the Company, the loss of which cannot adequately be compensated by
damages in an action at law.
6. Covenant Against Competition. During the term of Employees employment
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with the company and for a period of three years from the voluntary or
involuntary termination of Employees agreement with the Company 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 Company in any location where the Company
has had an office or has sold products or provided services to customers during
the period Employee is employed by the Company. Nothing in this paragraph shall
prohibit stock ownership, directly or through a mutual fund, in such companies.
7. Covenant Against Disclosure of Confidential Information. During the
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term of Employees employment with the Company and for a period of three (3)
years after the termination of Employees employment with the Company for any
reason whatsoever, Employee shall not use for any purpose or disclose to any
person or entity any confidential information acquired during the course of
employment with the Company. The term confidential information as used in this
Agreement includes, but is not limited to, records, lists, and knowledge of the
Companys current and former customers, suppliers, methods of operation,
processes, trade secrets, methods of determination of the prices, financial
consideration, profits, sales, net income, and indebtedness.
8. Non solicitation of Employees. During the term of Employees
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employment with the Company and for a period of three (3) years from the
voluntary or involuntary termination of Employees employment with the Company
for any reason whatsoever, Employee shall not either on his own account of for
any person, firm, partnership, corporation, or other entity solicit, interfere
with, or endeavor to cause any employee of the Company to leave his or her
employment, or induce or attempt to induce, any such employee to breach his or
her employment agreement with the Company. In the event of termination, however,
nothing in this paragraph shall inhibit the Employee from maintaining his
personal administrative staff in subsequent employment.
9. Non solicitation of Customers. During the term of Employees employment
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with the Company and for a period of three (3) years from the voluntary or
involuntary termination of Employees employment with the Company for any reason
whatsoever, Employee shall not solicit, induce or attempt to induce, any past or
current customer of the Company to cease doing business in whole or in part
through the Company, or to do business with any other person, firm, partnership,
corporation, or other entity which performs services materially similar to or
competitive with those provided by the Company.
10. Reasonableness of Restriction. Employee has carefully read and
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considered the provisions hereof, and having done so, agrees that the
restrictions set forth in paragraphs 6 through 9 of this Agreement are fair and
reasonable and are reasonably required for the protection of the interests of
the Company.
11. Compensation During Disability and Upon Death.
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11.1. Compensation During Initial Disability Period. If at any time
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during the term of this agreement, Employee becomes disabled or incapacitated or
is unable for any reason to perform substantially his duties under this
agreement and he has not breached any of the provisions of this agreement, the
Company shall continue to compensate Employee as provided in Paragraph 4, but
only as to the first six months of Employees disability or incapacitation (the
Initial Disability Period).
11.2. Compensation After Initial Disability Period. Effective after
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expiration of the Initial Disability Period, the Company may, at its sole
option, elect to
11.2.1. continue payment of Employees salary until he is able
to return to work;
11.2.2. continue payment of Employees salary for such period
greater than six months as the Company elects; or
11.2.3. terminate this Agreement.
11.3. Death of Employee. If Employee should die during the term of
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this Agreement, Employees employment and the Companys obligations hereunder
shall terminate as of the date of the Employees death.
12. Termination.
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12.1. Conditions of Termination. This Agreement may be terminated
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at any time upon ninety (90) days notice to the other party.
12.2. Payment upon Termination. If this Agreement is terminated by
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the Company, Employee shall receive termination compensation equal to the
greater of one years salary or $175,000, unless such termination was for cause.
Cause shall be limited to termination for:
12.2.1. Fraud, theft or embezzlement of Companys assets; or
12.2.2. Violation of paragraph 7 of this Agreement.
12.3. Death or Disability. No additional payment shall be due if
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termination is due to the death of Employee, other than as set forth in
paragraph 12.4 below. If termination is due to disability of Employee, one half
years salary or $87,500, whichever is greater, shall be payable to Employee upon
termination.
12.4. Compensation upon Termination. Upon termination of employment,
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Employee shall be entitled to receive all compensation accrued and unpaid as of
the date of termination, together with such sums as are payable under paragraph
12.2 above.
13. Rights and Remedies.
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13.1. Both parties recognize that the services to be rendered under\
this Agreement by Employee are special, unique and are of extraordinary
character. Upon breach of any provision of this Agreement, either may, at its
option, terminate this Agreement or elect to institute and prosecute proceedings
in any court of competent jurisdiction, either in law or in equity, to obtain
damages, to enforce specific performance of the Agreement, to enjoin the other
party as appropriate, and to recover reasonable attorneys fees and the costs of
prosecuting such action.
13.2. Termination for any cause shall not constitute a waiver of the
Companys rights under Paragraphs 6 through 9 of this Agreement nor a release of
Employee from his obligations hereunder. The rights and remedies of the parties
shall be cumulative and in addition to any other rights and remedies provided by
law or otherwise. A partys failure to exercise its right to terminate this
Agreement or to enforce any provision of this Agreement for default or violation
by the other party shall not prejudice such partys right of termination or
enforcement for any further or other default or violation.
14. Miscellaneous.
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14.1. Governing Law. It is understood and agreed that the
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construction and the interpretation of this Agreement shall at all times and in
all respects be governed by the laws of the Commonwealth of Pennsylvania,
without giving effect to the conflict of laws provisions thereof. Venue of any
action brought to enforce this Agreement or relating to this Agreement shall be
brought exclusively in a Pennsylvania Court of Common Pleas or the U.S.District
Court for the Middle District of Pennsylvania.
14.2. Assignment. This Agreement shall be binding upon and shall
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inure to the benefit of the Company and Employee, and their respective
successors and assigns. The Company shall have the right to assign its rights
hereunder to any successor in interest, whether by merger, consolidation, sale
of assets, or otherwise, provided, however, that the duties and reporting
obligations shall remain as set forth in paragraph 3 hereof. Employee may not
assign any of his rights or delegate any of his obligations under this Agreement
without first obtaining written consent from the Company.
14.3. Entire Agreement. This Agreement constitutes the entire
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agreement between the parties respecting the employment of Employee, and there
are no representations, warranties or commitments, except as set forth in this
Agreement. This Agreement may be amended only by a writing executed by the
parties to this Agreement. No valid waiver of any provision of this Agreement at
any time shall be deemed a waiver of any other provision of this Agreement.
14.4. Severability. The provisions of this Agreement shall be
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deemed severable and the invalidity or unenforceability of any of the provisions
hereof shall not affect the validity or enforceability of any other provision in
this Agreement.
14.4.1.1. Notices. Any notice, request, demand or other
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communication made under this Agreement shall be in writing and shall be deemed
to be duly given when personally delivered to an officer of the Company or to
Employee, as the case may be, or when delivered by mail at the following
addresses:
To the Company: To Xxxxx Xxxxxxxxx:
The JPM Company Xxxxx X. Xxxxxxxxx
Xx. 00 Xxxxx X.X. Xxx 000
Xxxxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
15. Effective Date. The effective date of this Agreement shall be
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October 1, 1997.
IN WITNESS WHEREOF, the Company and the Employee have duly executed this
Agreement as of October 14, 1997.
ATTEST: /s/Xxxxx X. Xxxxxxx THE JPM COMPANY
--------------------------- By: /s/ Xxxx X. Xxxxxxx
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Corporate Seal Its: CEO
/s/ Xxxxx Xxxxxxxx -----------------------
-------------------------- /s/ Xxxxx X. Xxxxxxxxx
Witness -----------------------
Xxxxx X. Xxxxxxxxx
