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Exhibit (d)(9)
March 9, 0000
Xxxxxxxxx X. Xxxxxx
A. Xxxxxxxxx Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxx
c/o Xxx X. Xxxxxx, Inc.
0000 Xxxxxx Xxx
Xxxx Xxxxxxx, XX 00000-0000
Re: Xxx X. Xxxxxx, Inc. Merger Agreement: Provision of Essential Terms
Agreements with Certain Signatories to Stock Pooling Agreement
Ladies and Gentlemen:
This will confirm that, in connection with the consummation of the
transactions contemplated by that certain Agreement and Plan of Merger (the
"Merger Agreement") dated as of March 9, 2001 by and among ACAS Acquisitions
(Weston), Inc. ("Holding Company"), Weston Acquisition Corporation and Xxx X.
Xxxxxx, Inc. ("Company"), and at the effective time of the merger contemplated
by the Merger Agreement or as soon thereafter as is practicable, Holding Company
shall cause the Surviving Corporation (as defined in the Merger Agreement) to
execute each of the agreements attached to this letter agreement (the "Essential
Terms Agreements") and to deliver each Essential Terms Agreement so executed to
the respective party named in each such agreement.
By signing this letter you acknowledge that, if Holding Company provides
the Essential Terms Agreements in accordance with the above paragraph, the
business combination proposal described in the Merger Agreement, if and when
effected, will include the Essential Terms (as defined in your Voting
Instructions dated October 23, 2000, as amended on March 9, 2001, that were
delivered to the Company). Holding Company shall have no obligations under this
letter agreement unless and until consummation of the transactions contemplated
by the Merger Agreement. This letter agreement may be executed in counterpart
copies. To the extent that you hold non-publicly traded Common Stock in the
Company in more than one capacity (e.g.,
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individually, as trustee, as a partner in a partnership or as custodian),
execution of this letter by you shall be deemed to be execution in all
capacities in which you hold such Common Stock.
Very truly yours,
ACAS ACQUISITIONS (WESTON), Inc.
By: /s/ Xxxxx Xxxxxxxxx Xxxxxxxxxx
_______________________________
Name:
Title:
ACKNOWLEDGED AND
AGREED TO THIS 9th
DAY OF MARCH, 2001
/s/ Xxxxxxxxx X. Xxxxxx /s/ A. Xxxxxxxxx Xxxxxxxx
________________________ __________________________
Xxxxxxxxx X. Xxxxxx A. Xxxxxxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxx, Xx.
________________________ __________________________
Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxxx X. Xxxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxxx
________________________ __________________________
Xxxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxxxx
________________________ __________________________
Xxxxxxxx X. Xxxxxxx Xxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxx
________________________
Xxxxxxx Xxxxxx
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CONSULTING AND NON-COMPETE AGREEMENT
THIS AGREEMENT is made and entered into as of the____ day of ___________, by and
between Xxx X. Xxxxxx, Inc. ("Weston" or "Company" ), a Pennsylvania corporation
having its principal offices at 0000 Xxxxxx Xxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx
00000 and ____________ "Consultant"), whose address is _________________.
WHEREAS, Consultant previously served as ___________ and a Director of Weston,
and possesses knowledge concerning Weston that would be helpful to Weston in the
future;
NOW THEREFORE, in consideration of the premises and the mutual promises
contained herein, and other good and valuable consideration, the parties agree
as follows:
1. CONSULTING SERVICES. Consultant shall, at reasonable times and places, be
available to provide consulting services to Weston, upon the specific written
request of the Chief Executive Officer of Weston.
2. TIME COMMITMENT. In rendering the services set forth in this Agreement,
Consultant shall be required to commit no more than 15 hours per month.
3. TERM. The term of this Agreement shall be for the period commencing
__________, and ending on the date which is three years thereafter.
4. NON-COMPETITION. Consultant shall not, without Company's prior written
approval, either directly or indirectly, for Consultant's own account or for the
account of any other person or entity, during the term of this agreement and for
one year thereafter directly or indirectly compete with Company, or assist any
other person or entity to compete with Company, at any location within the
continental United States.
Consultant agrees that the above restrictions on competition, including the
geographic scope and time period of the restriction, are reasonably necessary to
protect the Company, and are fair and reasonable in light of the consideration
paid by Company under this Agreement. Upon entry of an Order by a court of
competent jurisdiction finding Consultant has committed a breach of Consultant's
obligations under this paragraph 4, in addition to Company's right to obtain
appropriate injunctive relief, Company's obligation to pay any amount to
Consultant under paragraph 5 of this Agreement shall terminate immediately. In
the event such finding is reversed or overruled as a result of further legal
proceedings, Company shall, within ten days thereafter, pay all past due amounts
to Consultant, plus interest at the rate of 6%. The Court shall have discretion
to award reasonable legal fees and expenses to the prevailing party in any legal
proceedings brought with respect to this paragraph.
5. PAYMENT BY WESTON. In consideration of Consultant's agreements and
undertakings set forth in this Agreement, Weston shall pay Consultant a total of
$360,000. Weston shall pay this amount in [quarterly $30,000 installments on the
first day of _________, _______, ________
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and ______, 200_, and on the next succeeding two anniversaries of each such
date, until the final installment shall have been paid on the first day of
_________, 200_. OPEN, PENDING REVIEW OF AUGUST DISCUSSIONS BETWEEN AGREENBERG &
SDAVIS] In the event any payment under this Section 5 is past due, Company shall
promptly pay any past due amount to Consultant plus interest thereon from the
due date to the date of payment, calculated at an annual rate of 6%. In the
event of the death of Consultant prior to the end of the term of this Agreement,
the balance of the amounts payable hereunder will be paid to Consultant's
estate.
6. OWNERSHIP OF WORK PRODUCT. All information, including, but not limited to,
all designs, processes, manuals, reports, computer data and related information,
first produced by Consultant for Weston in performing services hereunder shall
be the sole property of Weston. All such information shall be considered
proprietary information and shall be retained and used solely in accordance with
the provisions of this Agreement. To the extent any such information comprises
work susceptible to protection under applicable copyright laws, Consultant
agrees that such work shall be deemed "work made for hire" hereunder. In the
event that such work is determined not to be "work made for hire", this
Agreement shall operate as an irrevocable assignment by Consultant to Weston of
the copyright in the work, including all right, title and interest therein, in
perpetuity.
7. INVENTIONS AND PATENTS. All inventions, improvements and discoveries,
whether patentable or not, first conceived, developed or reduced to practice by
Consultant, either alone or with others, in the course of the performance of the
services hereunder, or as a consequence of Consultant's receipt of information
hereunder, shall be the sole property of Weston. All such inventions,
improvements and discoveries shall be promptly disclosed to Weston in writing.
At Weston's request and expense, Consultant agrees to (i) assist Weston in
making application for patents on such inventions, improvement and discoveries
in the United States and any foreign countries (ii) assign all such applications
to Weston or its designee without further charges, (iii) assist Weston in the
prosecution of any patent applications and the enforcement of any resulting
patents and (iv) execute any and all documents necessary for the accomplishment
of the foregoing.
8. PROPRIETARY INFORMATION. All information received by Consultant in the
course of performing services hereunder, other than information publicly
available or publicly disclosed shall be deemed "Proprietary Information."
Consultant shall receive and retain all Proprietary Information in confidence
and shall not disclose such information to any person without the express
written authorization of Weston. Consultant shall use Proprietary Information
solely for the purpose of performing Consultant's obligations hereunder and for
no other purpose. Upon termination of this Agreement, Consultant shall promptly
return all Proprietary Information to Weston, and will, if requested by Weston,
execute a certificate warranting that all Proprietary Information has been
returned to Weston in accordance with this Agreement. Consultant shall cause all
persons requiring access to the Proprietary Information in the course of
Consultant's performance hereunder, to agree to the confidentiality requirements
of this paragraph 8.
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9. RELATIONSHIP WITH WESTON. Consultant may not represent that Consultant is
associated with Weston for any marketing, commercial or promotional purposes
without the prior written permission of Weston.
10. REPRESENTATION CONCERNING CONFLICTS. Consultant hereby warrants and
represents that to the best of Consultant's knowledge and belief there are no
relevant facts or circumstances which could give rise to an actual or potential
conflict of interest under this Agreement, and that Consultant has disclosed to
Weston all information having any relevance to an actual or potential conflict
of interest.
11. DISCLOSURE. Consultant agrees that if an actual or potential conflict of
interest is discovered after execution of this Agreement, Consultant will make
full disclosure to Weston in writing. This disclosure shall include a
description of actions which Consultant has taken or proposes to take to avoid,
mitigate or neutralize the actual or potential conflict, and all actions taken
for such purposes shall be in consultation with Weston.
12. COMMUNICATIONS WITH GOVERNMENTAL OFFICIALS. In performing services under
this Agreement, Consultant shall not communicate with any officer,
representative, employee, elected official or agency of the government of any
country or any subdivision thereof on behalf of Weston without having first
obtained Weston's written consent thereto.
13. GOVERNMENT EMPLOYMENT. If Consultant is a former United States government
employee, Consultant agrees to furnish Weston all relevant information regarding
any potential conflict of interest.
14. RECORDS. Consultant shall retain all records related to this Agreement in
legible form for a period of three (3) years from date of final payment
hereunder. Consultant authorizes Weston to inspect and audit these records
during business hours upon prior notice to Consultant.
15. TAXES. Consultant shall have sole responsibility for payment of all
Federal, state (unless Consultant provides Weston with a Non-taxable Transaction
Certificate), local and other sales, use, income and all employment and other
taxes applicable to the fees paid to Consultant hereunder. Consultant agrees to
indemnify and hold Weston harmless from and against any and all claims and
liability relating to such taxes.
16. INDEPENDENT CONTRACTOR. For all purposes in performing its services,
Consultant shall be deemed to be an independent contractor and as such, shall
not be entitled to any benefits applicable to the employees of Weston.
Consultant shall in no manner be deemed to be an agent or representative of
Weston. Consultant shall have no authority to bind or speak for Weston except as
Weston may grant specific written authority to Consultant to do so from time to
time.
17. ASSIGNMENT. This Agreement may not be assigned by Consultant, either in
whole or in part, without the prior written consent of Weston. Any attempted
assignment shall be null and void and without force and effect.
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18. SEVERABILITY. Any provision or part of this Agreement held to be void or
unenforceable under any law or by any court shall be deemed stricken, and all
remaining provisions shall continue to be valid and binding upon the parties.
The parties may reform or replace such stricken provision or part thereof with a
valid and enforceable provision which expresses the intent of the stricken
provision.
19. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Pennsylvania, exclusive of the
choice of law rules thereof, as if wholly to be performed therein.
20. ENTIRE AGREEMENT. This Agreement constitutes the sole and exclusive
agreement of the parties hereto concerning the subject of this Agreement and
supersedes any prior understandings or written or oral agreements on said
subject between the parties. This Agreement does not supersede, amend or replace
the provisions of any of the following agreements: {LIST RELEVANT AGREEMENTS
HERE}. This Agreement does not supersede, amend or replace any obligation of
Weston to Consultant now existing or hereafter arising under any retirement plan
or deferred compensation plan. This Agreement may be amended only by a writing
signed by the Authorized Representative of each party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
XXX X. XXXXXX, INC.
BY:
---------------------- ------------------------------
CONSULTANT
NAME:
----------------------------
DATE:
TITLE:
----------------------------
DATE:
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is dated as of , 2000 (the "Effective
Date") between Xxx X. Xxxxxx, Inc., a Pennsylvania corporation ("Company"), and
Xxxxx X. Xxxxxxx ("Xxxxxxx").
WHEREAS, Xxxxxxx is presently employed by Company as its Government
Affairs Director; and
WHEREAS, the parties desire to set forth in this Agreement the terms and
conditions of Xxxxxxx'x employment by the Company as its Government Affairs
Director;
THEREFORE, in consideration of the mutual obligations contained in this
Agreement and the mutual benefits to be derived from those obligations, and
intending to be legally bound by this Agreement, Xxxxxxx and the Company agree
as follows:
SECTION 1. CAPACITY AND DUTIES
1.1. EMPLOYMENT; ACCEPTANCE OF EMPLOYMENT. Company hereby employs
Xxxxxxx and Xxxxxxx hereby accepts employment by the Company, as Government
Affairs Director upon the terms and conditions set forth below in this
Agreement.
1.2. CAPACITY AND DUTIES.
(a) Xxxxxxx shall be employed by Company as its Government
Affairs Director, subject to the supervision of the Chief Operating Officer (the
"COO") or the designee(s) of the COO, and shall perform such duties and shall
have such authority as may from time to time be specified by the COO or the
designees(s) of the COO. Xxxxxxx shall report directly to the Company's COO or
the designees(s) of the COO and shall perform his duties for Company principally
from Company's office located in Washington, DC, except for periodic travel that
may be necessary or appropriate in connection with the performance of Xxxxxxx'x
duties under this Agreement.
(b) Xxxxxxx shall be a full-time employee of the Company and
shall devote his best efforts to the performance of his duties under this
Agreement in a manner which will faithfully and diligently further the business
and interests of the Company and its affiliates (as defined below), and shall
not be employed by or participate or engage in or be a part of the management or
operation of any business enterprise other than the Company and its affiliates,
which materially conflicts with the performance of his duties to Company. For
purposes of this Agreement, "affiliate" means any entity in which at least 50%
of the voting power is controlled by the Company. Nothing in this paragraph
shall preclude Xxxxxxx from serving as the Company's appointed member of the
board of directors of companies in which the Company has an interest.
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SECTION 2. TERM OF EMPLOYMENT
2.1. TERM. Xxxxxxx'x employment under this Agreement shall continue at
will until terminated in accordance with the provisions of this Agreement.
SECTION 3. COMPENSATION
3.1. BASIC COMPENSATION. As compensation for Xxxxxxx'x services under
this Agreement, Company shall pay to Xxxxxxx a salary at the annual rate of
$106,000 (the "Base Salary"), payable in periodic installments in accordance
with the Company's regular payroll practices in effect from time to time. The
Base Salary shall be reviewed from time to in accordance with standard Company
practices.
3.2. INCENTIVE COMPENSATION.
(a) ANNUAL INCENTIVE PAY/BONUS. In addition to the Base Salary
provided for in Section 3.1, Xxxxxxx will participate in the Company's Pay for
Performance Incentive Compensation Program ("PFP") with a PFP guideline
incentive that would provide quarterly incentive payments to Xxxxxxx that, on an
annual basis, total 12.5% of Xxxxxxx'x Base Salary, if the Company and Xxxxxxx
meet their PFP performance targets in accordance with the terms of the PFP
Program. Xxxxxxx understands that the Company's PFP program may be reviewed and
revised and Xxxxxxx shall only be entitled to participate in the current PFP
program if, and to the extent that, the program is maintained by the Company for
its management personnel generally. While the PFP program is maintained by the
Company, Xxxxxxx'x performance rating under that program shall be determined by
the COO or the designee(s) of the COO. If the PFP program is not maintained by
the Company, Xxxxxxx will be entitled to participate in any revised incentive
program for persons of comparable rank and responsibility as Xxxxxxx, under the
terms of that revised program.
(b) RETENTION BONUS. Company will pay Xxxxxxx a $75,000
retention bonus. This retention bonus will be paid to Xxxxxxx in three annual
installments of $25,000 each, on the Effective Date, and on each of the two
succeeding anniversaries of the Effective Date. In the event any installment
payment under this Section 3.2(b) is past due, Company shall promptly pay such
past due amount to Xxxxxxx plus interest thereon from the due date of such late
installment payment to the date of payment of such installment payment,
calculated at an annual rate of 6%.
3.3. BENEFITS. In addition to the compensation provided for in Section
3.1 hereof, Xxxxxxx shall be entitled during the term of his employment under
this Agreement to participate in all benefit plans maintained by the Company and
available to Company employees of comparable rank and responsibility as Xxxxxxx;
provided, however, that, if Xxxxxxx receives any severance benefits under
Section 4 below, Xxxxxxx shall not be eligible for any severance or termination
benefits under any Company plans, policies or procedures providing for such
benefits, including but not limited to the Xxx X. Xxxxxx, Inc. Employee
Severance Plan and any predecessor or successor severance plan.
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3.4. VACATION. Xxxxxxx shall be entitled to paid vacation in accordance
with the Company's vacation policy for employees of comparable rank and years of
service.
3.5. EXPENSE REIMBURSEMENT. Company shall reimburse Xxxxxxx for all
reasonable expenses incurred by him in connection with the performance of his
duties under this Agreement, in accordance with Company's regular reimbursement
policies and upon receipt of itemized vouchers for such expenses and such other
supporting information as Company may reasonably require.
3.6. AUTOMOBILE. During his employment by Company, Company shall pay
Xxxxxxx an automobile allowance and shall also reimburse Xxxxxxx for his
gasoline and insurance costs for his automobile, all in accordance with the
Company's automobile allowance policies, which are subject to change from time
to time. Xxxxxxx shall, in accordance with the Company's policies, notify
Company as to the business and personal use of his automobile, so that Company
may withhold taxes, as appropriate in connection with the automobile allowance
and reimbursements.
SECTION 4. TERMINATION OF EMPLOYMENT
4.1. DEFINITIONS.
(a) FOR CAUSE. As used in this Agreement "For Cause" shall mean
that Xxxxxxx committed or engaged in an intentional act of (i) fraud,
embezzlement, dishonesty or theft in connection with his duties under this
Agreement or in the course of his employment with Company, (ii) wrongful damage
to Company's property, (iii) wrongful disclosure of Company's secret processes
or confidential information, (iv) a material breach of Xxxxxxx'x obligations
under this Agreement, that materially impairs Xxxxxxx'x performance of his
obligations under this Agreement, (v) criminal misconduct, including illegal
drug use, that materially impairs Xxxxxxx'x performance of his obligations under
this Agreement, (vi) a material breach of the Company's written rules or
policies that materially impairs Xxxxxxx'x performance of his obligations under
this Agreement, or (vii) any kind, whether or not specifically referenced in the
foregoing clauses (i)-(vi), which is materially harmful to Company. No act, or
failure to act, shall be deemed "intentional" if it was due primarily to an
error in judgment or to negligence, but shall be deemed "intentional" only if
done, or omitted to be done, by Xxxxxxx not in good faith and without reasonable
belief that his act or omission was in Company's best interest.
(b) GOOD REASON RESIGNATION. As used in this Agreement, Xxxxxxx
shall be deemed to have resigned his employment by Company for "Good Reason" if
Xxxxxxx elects in good faith, to discontinue his employment with Company because
(A) his responsibilities, duties or authority have changed materially from their
level on the effective date of this Agreement, which change substantially
reduces the rank or level, responsibility or scope of Xxxxxxx'x position with
Company (or its successor in the case of a merger, consolidation, acquisition or
transfer of substantially all of its business assets) below that which he has on
the effective date of this Agreement as Company's Government Affairs Director or
(B) his salary (as adjusted from
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the effective date of this Agreement) has been decreased; or (C) the Company has
changed the principal location for the performance of Xxxxxxx'x duties to a
place that is more than 10 miles from the United States Capitol.
If Xxxxxxx elects to end his employment by Company for a reason which Xxxxxxx
believes is a Good Reason as defined by this Section 4.1(b), he shall provide
the Company with written notice of such resignation and shall state in that
notice the specific matter or matters which he asserts constitute the Good
Reason for his resignation. Notwithstanding anything else in this Agreement,
Xxxxxxx shall not be deemed to have resigned his employment by Company for "Good
Reason" unless he delivers such written notice to Company within sixty (60) days
from the date on which he first learns of the specific matter or matters which
he asserts constitute Good Reason for his resignation.
(c) DISABILITY. As used in this Agreement, "Disability" or
"Disabled" shall mean a physical or mental disability which is either (i) a
total and permanent disability as defined in the principal disability benefit
plan offered by the Company to its employees of comparable rank and
responsibility as Xxxxxxx and in effect at the time Xxxxxxx becomes disabled
(whether or not Xxxxxxx has elected to purchase such disability insurance), or
(ii) determined to be a total and permanent disability by a physician who is
selected by the Company and is acceptable to Xxxxxxx or his legal representative
(which acceptance shall not be unreasonably withheld).
(d) As used in this Agreement, "First Anniversary Date" shall
mean the date that is one year after the Effective Date; and "Third Anniversary
Date" shall mean the date that is three years after the Effective Date.
4.2. TIME AND MANNER OF TERMINATION OR RESIGNATION. Xxxxxxx'x employment
by Company shall be at will. Xxxxxxx'x employment shall cease immediately upon
Xxxxxxx'x death or Disability, or upon written notice to Xxxxxxx that the
Company is terminating Xxxxxxx'x employment For Cause. Otherwise, Xxxxxxx'x
employment shall cease on the date selected by the party initiating termination
or resignation, which date shall be specified in a written notice to the other
party, and which (i) in the event of termination of Xxxxxxx by the Company for
any reason other than For Cause, shall be thirty (30) days after delivery of
such notice, and (ii) in the event of resignation by Xxxxxxx, shall be thirty
(30) days after delivery of such notice unless a longer or shorter period is
approved in writing by both the Company and Xxxxxxx. The date on which Xxxxxxx'x
employment by Company ceases is referred to in this Agreement as the "Employment
Ending Date".
As of the Employment Ending Date, if Xxxxxxx is a member of the Company's Board
or of the Board of Directors of any affiliate, or if Xxxxxxx is an officer of
Company or of any affiliate, he shall provide the Company with his written
resignation from each such Board and from each such position as an officer.
4.3. BENEFITS PAYABLE.
(a) SEVERANCE AMOUNT. If, on or before the First Anniversary
Date, either (1)
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Company terminates Xxxxxxx'x employment for any reason other than For Cause,
death or Disability or (2) Xxxxxxx resigns his employment by Company for Good
Reason, Xxxxxxx shall be paid his monthly salary on the Employment Ending Date
for the period from the Employment Ending Date until the Third Anniversary Date.
If, at any time after First Anniversary Date but on or before the Third
Anniversary Date, either (1) Company terminates Xxxxxxx'x employment for any
reason other than For Cause, death or Disability or (2) Xxxxxxx resigns his
employment by Company for Good Reason, Xxxxxxx shall be paid his monthly salary
on the Employment Ending Date for 24 months. For purposes of this Section
4.3(a), Xxxxxxx'x "monthly salary" shall be one-twelfth of the sum of (A)
Xxxxxxx'x highest annual base salary rate during his employment by the Company,
plus (B) all other amounts, including incentive payments (but not including any
retention bonus payments made to Xxxxxxx under Section 3.2(b) above), that would
be deemed compensation for purposes of IRS form W-2 and that were paid to
Xxxxxxx during the twelve full calendar months preceding the calendar month in
which the Employment Ending Date occurs. The Company shall make any payments due
to Xxxxxxx under this Section 4.3(a), beginning with the first calendar month
after the Employment Ending Date, in accordance with the Company's regular
salary payment policies for employees. The time period during which the
severance amount under this Section 4.3(a) is payable to Xxxxxxx is referred to
below as the "Severance Period".
(b) ADDITIONAL SEVERANCE BENEFITS. If severance payments are
payable to Xxxxxxx under Section 4.3(a) above, the following additional
severance benefits shall be provided to Xxxxxxx by Company:
(i) Company shall pay Xxxxxxx the amount earned under
its PFP program (or any applicable replacement incentive program in effect at
the time of the Employment Ending Date) for the portion of the calendar quarter
to and including the Employment Ending Date. Company shall make such payment on
or about the date Company makes such payments to other participating employees;
(ii) Company shall pay Xxxxxxx on the Employment Ending
Date any balance of the retention bonus described in paragraph 3.2(b) above that
has not been paid as of the Employment Ending Date;
(iii) Company shall provide medical, dental and
prescription plan benefits for Xxxxxxx, on the same cost-sharing and other basis
as is then in effect for active employees, during the Severance Period or until
Xxxxxxx elects that such coverages sooner cease. After such coverages cease in
accordance with the previous sentence, Xxxxxxx may elect continuation coverage
completely at his own expense as provided by law;
(iv) Company shall provide Xxxxxxx with outplacement
services of the type typically provided by the Company at Company's expense on
the Employment Ending Date;
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(v) Company shall pay Xxxxxxx his automobile allowance
and reimbursement, at the level in effect on the Employment Ending Date, for 12
months immediately following the Employment Ending Date; and
(vi) If, within the Severance Period, Xxxxxxx relocates
to a location that is more than 100 miles from his principal residence on the
Employment Ending Date, Company shall pay Xxxxxxx an amount equal to the
aggregate costs reasonably incurred by Xxxxxxx in connection with Xxxxxxx'x
relocation (including all moving and transportation costs associated with such
relocation and the closing costs incurred by Xxxxxxx in connection with both the
sale of Xxxxxxx'x principal residence in the District of Columbia on the
Employment Ending Date and the purchase of Xxxxxxx'x subsequent principal
residence to which he relocates); provided, however, that in no event shall the
amount paid to Xxxxxxx under this Section 4.3(b)(vi) exceed $25,000.
(c) WHEN BENEFITS/PAYMENTS NOT PAYABLE. With the exception of
the retention bonus described in Section 4.3(b)(ii) above, none of the severance
benefits or payments otherwise described in this Section 4.3 shall be payable to
Xxxxxxx if (i) Xxxxxxx'x employment with Company is terminated For Cause or as a
result of Xxxxxxx'x death or Disability or (ii) Xxxxxxx voluntarily ends his
employment with Company other than by resigning for Good Reason. The
compensation and benefits which the Company is required to pay Xxxxxxx pursuant
to this Section 4.3 are the only payments, compensation or benefits to which the
Xxxxxxx is entitled upon a termination or resignation of employment.
(d) RELEASE. As a condition to receipt of the severance benefits
described in Sections 4.3(b) (i) (iii) and (iv) above, Xxxxxxx shall deliver an
effective, executed release to Company in the form attached to this Agreement as
Exhibit "A" on or before the Employment Ending Date.
(e) COOPERATION. As a condition to receipt of the severance
benefits described in Sections 4.3(b)(i) (iii) and (iv) above, Xxxxxxx shall
provide Company with such information pertaining to his employment with Company
as he may have and shall assist Company to transfer his duties to such successor
or successors as Company may designate. Company shall reimburse Xxxxxxx for all
reasonable out of pocket expenses he incurs in fulfilling his obligation under
the preceding sentence.
(f) ACCELERATION ELECTION. Company may, at its sole option and
in its sole discretion, at any time or from time to time, accelerate the time
and manner of making any one or more payments required under this Section 4.3.
The benefits provided to Xxxxxxx under this Section 4.3 shall be fully "grossed
up" to take into account any additional federal, state and local income tax and
any applicable federal and state payroll taxes that Xxxxxxx will be required to
pay as a result of the payment of such benefits being accelerated. The amount of
the "gross-up" payments shall be determined based on the highest marginal income
tax rates applicable to Xxxxxxx during the year in question (including the
effects of any sur-tax). The "gross-up" calculation shall be made in a manner
that results in Xxxxxxx receiving, after all applicable
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income and payroll taxes have been paid, the gross amount of the benefit in
question less any taxes Xxxxxxx would have paid absent the acceleration.
(g) TAXES. Company shall withhold from payments to Xxxxxxx and
remit to the appropriate government agencies such payroll taxes and income
withholding as Company determines is or may be necessary under applicable law
with respect to amounts paid to Xxxxxxx under this Section 4.3.
(h) ESTATE TO RECEIVE SEVERANCE BENEFITS/PAYMENTS. In the event
that Xxxxxxx becomes entitled to receive any severance benefits or payments
under Sections 4.3(a) or (b) above, and Xxxxxxx dies before all such benefits or
payments are made by Company, the unpaid balance of such benefits or payments
shall be paid to Xxxxxxx'x estate.
SECTION 5. RESTRICTIVE COVENANTS
5.1. CONFIDENTIALITY. Xxxxxxx acknowledges a duty of confidentiality
owed to Company and shall not, at any time during or after his employment by
Company, retain in writing, use, divulge, furnish, or make accessible to anyone,
without the express authorization of the Company's Chief Operating Officer, any
trade secret, private or confidential information or knowledge of Company or any
of its affiliates obtained or acquired by him while so employed. All computer
software, address books, rolodexes, business cards, telephone lists, customer
lists, price lists, contract forms, catalogs, books, records, and files and
know-how acquired while an employee of Company, are acknowledged to be the
property of Company and shall not be duplicated, removed from Company's
possession or made use of other than in pursuit of Company's business. Upon the
Employment Ending Date, Xxxxxxx shall deliver to Company, without further
demand, all copies thereof which are then in his possession or under his
control.
5.2. INVENTIONS AND IMPROVEMENTS. During the term of his employment,
Xxxxxxx shall promptly communicate to Company all ideas, discoveries and
inventions which are or may be useful to Company or its business. Xxxxxxx
acknowledges that all ideas, discoveries, inventions, and improvements which are
made, conceived, or reduced to practice by him and every item of knowledge
relating to Company's business interests (including potential business
interests) gained by him during his employment hereunder are the property of
Company, and Xxxxxxx hereby irrevocably assigns all such ideas, discoveries,
inventions, improvements, and knowledge to Company for its sole use and benefit,
without additional compensation. The provisions of this Section shall apply
whether such ideas, discoveries, inventions, improvements or knowledge are
conceived, made or gained by him alone or with others; whether during or after
usual working hours, whether on or off the job, whether applicable to matters
directly or indirectly related to Company's business interests (including
potential business interests), and whether or not within the specific realm of
his duties. Xxxxxxx shall, upon request of Company, but at no expense to
Xxxxxxx, at any time during or after his employment with Company, sign all
instruments and documents requested by Company and otherwise cooperate with
Company to protect its right to such ideas, discoveries, inventions,
improvements, and knowledge, including applying for, obtaining, and enforcing
patents and copyrights thereon in any and all countries.
7
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5.3. NONCOMPETITION; NONSOLICITATION. If, within three years after the
Effective Date, Xxxxxxx'x employment by Company is terminated for any reason,
whether by Xxxxxxx or by Company, Xxxxxxx shall not, without Company's prior
written approval, either directly or indirectly, for his own account or for the
account of another person or entity, during the six months after the Employment
Ending Date:
(a) acquire or hold more than a 5% ownership interest in any of
Company's or an affiliate's competitors in the hazardous waste cleanup business;
(b) compete with Company or any affiliate in the hazardous waste
cleanup business by soliciting any business from any person or entity that was
at any time during the six months immediately preceding the Employment Ending
Date a client or potential client of Company or any affiliate in the area of
hazardous waste cleanup, as to which client or potential client Company or an
affiliate had rendered a significant volume of service or had a significant
amount of direct business contact for the purpose of soliciting future business;
or
(c) render services within the continental United States,
directly or indirectly, to any of Company's or an affiliate's competitors in the
hazardous waste cleanup business, if such services are similar in nature (in
whole or in part) to services Xxxxxxx rendered to Company or any affiliate at
any time during the six months immediately preceding the Employment Ending Date.
(d) solicit or otherwise induce any employee of Company or an
affiliate to leave the employment of Company or the affiliate, or induce any
such employee to become an employee of, or otherwise become associated with, any
company or business other than Company or the affiliate. This paragraph shall
apply to inducement, hiring or solicitation of any employee of Company or an
affiliate, regardless of position.
Upon the breach by Xxxxxxx of his obligations under this Section 5.3, in
addition to Company's right to seek injunctive relief as set forth in Section
5.4 of this Agreement, Company's obligation to make severance payments or
provide severance benefits to Xxxxxxx under Section 4 of this Agreement shall
terminate immediately and Xxxxxxx shall, within 10 days after written demand by
Company, repay to Company all severance payments previously made to Xxxxxxx as
well as an amount equal to the cost of severance benefits previously provided to
Xxxxxxx.
5.4. INJUNCTIVE AND OTHER RELIEF.
(a) Xxxxxxx acknowledges and agrees that his obligations
contained in this Section 5 (including but not limited to the geographic scope
and time period of the limitations on competition in Section 5.3) are fair and
reasonable in light of the consideration paid under this Agreement, and are
reasonably necessary to protect the Company; and that damages alone shall not be
an adequate remedy for any breach by Xxxxxxx of those obligations. Accordingly,
Xxxxxxx expressly agrees that, in addition to any other remedies that Company
may have, Company shall be entitled to seek injunctive relief in any court of
competent jurisdiction for any breach or threatened breach of any of those
obligations by Xxxxxxx. Nothing contained in this
8
15
Agreement shall prevent or delay Company from seeking, in any court of competent
jurisdiction, specific performance or other equitable remedies in the event of
any breach or intended breach by Xxxxxxx of any of his obligations under this
Agreement.
(b) Notwithstanding the equitable relief available to Company, Xxxxxxx,
in the event of a breach of his obligations contained in Section 5 of this
Agreement, understands and agrees that the uncertainties and delay inherent in
the legal process would result in a continuing breach for some period of time,
and therefore, continuing injury to Company until and unless Company can obtain
appropriate equitable relief. Therefore, in addition to such equitable relief,
Company shall be entitled to seek monetary damages for any such period of breach
until the termination of such breach, in an amount deemed reasonable to cover
all actual and consequential losses, plus all moneys received by Xxxxxxx as a
result of said breach, and all costs and reasonable attorneys' fees incurred by
Company in enforcing this Agreement. If Xxxxxxx should use or reveal to any
other person or entity any confidential information in violation of this
Agreement, this will be considered a continuing violation on a daily basis for
so long a period of time as such confidential information is made use of by
Xxxxxxx or any such other person or entity.
SECTION 6. MISCELLANEOUS
6.1. PRIOR EMPLOYMENT. Xxxxxxx represents and warrants that he is not a
party to any other employment, non-competition or other agreement or restriction
which could interfere with his employment with Company or with his or Company's
rights and obligations under this Agreement, and the Company represents and
warrants that it has no knowledge of any such agreement to which Xxxxxxx is a
party. Xxxxxxx further represents and warrants that his acceptance of employment
with Company and the performance of his duties under this Agreement will not
breach the provisions of any contract, agreement, or understanding to which he
is party or any duty owed by him to any other person.
6.2. SEVERABILITY. The invalidity or unenforceability of any particular
provision or part of any provision of this Agreement shall not affect the other
provisions or parts of this Agreement, except that in the event that (a) Xxxxxxx
seeks to have the Release described in Section 4.3(d) above held invalid or
unenforceable and (b) that Release is held invalid or unenforceable and (c)
Xxxxxxx is permitted to maintain against Company any claim that was purported to
be released under that Release, then Company's obligation to provide severance
payments and benefits under Section 4.3 of this Agreement (except for benefits
payable under Section 4.3(b)(ii) above) shall be deemed null and void and
Xxxxxxx shall repay to Company any of those severance payments and benefits
(except for any benefits paid to Xxxxxxx under Section 4.3(b)(ii)) already paid
by Company. In the event that any provision of this Agreement is determined to
be invalid or unenforceable by a court of competent jurisdiction, Xxxxxxx and
Company shall negotiate in good faith to provide Company and Xxxxxxx with
protection as nearly equivalent to that found to be invalid or unenforceable and
if any such provision shall be so determined to be invalid or unenforceable by
reason of the duration or geographical scope of the covenants contained therein,
such duration or geographical scope, or both, shall be
9
16
considered to be reduced to a duration or geographical scope to the extent
necessary to cure such invalidity.
6.3. ASSIGNMENT. This Agreement shall not be assignable by Xxxxxxx, and
shall be assignable by Company only to any person or entity which may become a
successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to Company in the business or a portion of the business presently
operated by it. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors, assigns,
heirs, executors and administrators.
6.4. NOTICES. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service, or by registered or certified mail, postage prepaid, return receipt
requested, (confirmed by U.S. mail), addressed as set forth below or to such
other person and/or at such other address as may be furnished in writing by any
party hereto to the other. Any such notice shall be deemed to have been given as
of the date received, in the case of personal delivery, or on the date shown on
the receipt or confirmation therefore, in all other cases. Any and all service
of process and any other notice in any such action, suit or proceeding shall be
effective against any party if given as provided in this Agreement; provided
that nothing herein shall be deemed to affect the right of any party to serve
process in any other manner permitted by law.
If to Company:
0000 Xxxxxx Xxx
Xxxx Xxxxxxx, XX 00000
Attention: Chief Executive Officer
With a copy to:
F. Xxxxxxx Xxxxxxx, Esq.
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
If to Xxxxxxx:
Xxxxx X. Xxxxxxx
0000 Xxxxxxx Xx.
Xxxxxx, XX 00000
6.5. ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes the
entire agreement between the Company and the Xxxxxxx with respect to the matters
contemplated herein and, unless otherwise stated in this Agreement, supersedes
all prior agreements and understandings with respect thereto. Any amendment,
modification, or waiver of this Agreement shall not be effective unless in
writing and signed by the party against whom enforcement is
10
17
sought. The failure by any party to insist upon strict compliance with any of
the terms, covenants or conditions hereof shall not be deemed a waiver of such
term, covenant or condition, nor shall a party's waiver or relinquishment of any
right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
6.6. GOVERNING LAW. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the internal laws of the Commonwealth
of Pennsylvania (and United States federal law, to the extent applicable),
without giving effect to otherwise applicable principles of conflicts of law.
6.7. HEADINGS; COUNTERPARTS. The headings of paragraphs in this
Agreement are for convenience only and shall not affect its interpretation. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which, when taken together, shall be deemed
to constitute but one and the same Agreement.
6.8. FURTHER ASSURANCES. Each of the parties hereto shall execute such
further instruments and take such other actions as any other party shall
reasonably request in order to effectuate the purposes of this Agreement.
6.9. NON-ALIENATION. None of the rights or payments contemplated under
this Agreement may be sold, given away, assigned, transferred, pledged,
mortgaged, alienated, hypothecated or in any way encumbered or disposed of by
Xxxxxxx, or any executor, administrator, heir, legatee, distributee, relative or
any other person or entity, whether or not in being, claiming under Xxxxxxx by
virtue of this Agreement, and none of the rights or benefits contemplated by
this Agreement shall be subject to execution, attachment or similar process. Any
sale, gift, assignment, transfer, pledge, mortgage, alienation, hypothecation or
encumbrance, or other disposition of this Agreement or of such rights or
benefits contrary to the foregoing provisions, or the levy or any attachment or
similar process thereon, shall be null and void and without effect.
6.10. CONSULTATION WITH COUNSEL. Xxxxxxx acknowledges that he has had
the opportunity to consult separately with counsel of his choice concerning this
Agreement and the meaning of the terms of this Agreement; that he has been
advised by Company to do so; and that he has entered into this Agreement
knowingly and of his own free will and volition.
6.11. RIGHT TO USE LIKENESS. Xxxxxxx hereby grants to Company the
absolute right and permission to copyright and use, re-use and/or publish for
lawful business purposes, any photographic portraits or pictures of Xxxxxxx (and
printed matter in conjunction therewith) in which Xxxxxxx may be included in
whole or in part or composite, for art, advertising, or trade.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: XXX X. XXXXXX, INC.
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18
By:
-------------------------------------
Chief Executive Officer
------------------------------ ------------------------------------
Witness Xxxxx X. Xxxxxxx
12
19
EXHIBIT "A"
CROSS RELEASE
Xxx X. Xxxxxx, Inc. ("Weston") and Xxxxx X. Xxxxxxx ("Employee") entered
into an Amended Employment Agreement as of Date, Year (the "Employment
Agreement"). To satisfy the requirement of Section 4.3(d) of the Employment
Agreement, Employee and Weston hereby grant the other the Releases set forth
below:
-------------------------
1. Release by Weston. Weston, on behalf of itself and its subsidiaries,
irrevocably and unconditionally releases and forever discharges Employee, his
heirs, administrators and legal representatives from any and all manner of
actions, causes, matters, suits, debts, dues, accounts, bonds, covenants,
agreements, judgments, claims, controversies, guarantees, warranties, damages,
liabilities, or demands of any nature whatsoever in law or equity, whether or
not known to it, which it has ever had, now has, or hereafter can, shall or may
have, for, upon, or by reason of any matter, action, omission to act,
transaction, practice, conduct, thing or cause of any kind whatsoever from the
beginning of the world to the date it executes this Release. Such remise,
release and discharge of Employee includes, without limitation, any and all
claims under any and all federal or state statutes or the common law and extends
without limitation to any and all acts, practices or conduct by Employee whether
or not it has knowledge of such acts, omissions, practices, conduct or the
effects thereof, or if any such effects exist or may in the future exist as a
result of any acts, omissions, practices, or conduct that occurred prior to the
date it executes this Release.
2. Limitation on Weston's Release. Notwithstanding the foregoing, this
Release shall not prevent Weston from enforcing its rights under the Employment
Agreement.
3. Release by Employee. Employee, for himself, his heirs, and personal
and legal representatives, except as provided in Section 4 hereof, does hereby
irrevocably and unconditionally release, remise and forever discharge Weston,
its subsidiaries, affiliates, divisions, officers, directors and employees (the
"Releasees"), and each of them, however denominated, past, present and future,
and their predecessors, successors and assigns, of and from any and all manner
of actions, causes, matters, suits, dues, bonds, judgments, debts, accounts,
covenants, agreements, claims, controversies, guarantees, warranties, damages,
liabilities, or demands of any nature whatsoever in law or equity, whether or
not now known to him which he ever had, now has or hereafter can, shall or may
have, for, upon, or by reason of any matter, action, omission to act,
transaction, practice, conduct, cause or thing of any kind whatsoever from the
beginning of the world to the date hereof. Such release, remise and discharge of
the Releasees includes without limitation any and all claims under any and all
federal and state statutes or common law and extends without limitation, to any
and all acts, practices or conduct by the Releasees, or the effects thereof,
whether or not Employee now has
20
knowledge of such acts, omissions, practices, conduct or the effects thereof, if
any such effects exist or may in the future exist as a result of any act,
omission, practice or conduct that occurred prior to the date hereof. Except as
provided in Section 4, this release shall specifically include, but not be
limited to, the following:
(a) any and all claims and matters of any kind which arise or
might arise, or which otherwise relate to Employee's employment with Weston or
Employee's termination of employment pursuant to the Employment Agreement;
(b) any and all claims for wages and benefits (including without
limitation salary, stock, stock options, commissions, bonuses, severance pay,
health and welfare benefits, vacation pay and any other fringe-type benefit);
(c) any and all claims for wrongful discharge, breach of
contract (whether written or oral, express or implied), and implied covenants of
good faith and fair dealing;
(d) any and all claims for alleged employment discrimination on
the basis of age, race, color, religion, sex, national origin, veteran status,
disability and/or handicap, in violation of any federal, state or local statute,
ordinance, judicial precedent or executive order, including but not limited to
claims for discrimination under the following statutes: Title VII of the Civil
Rights Act of 1964, 42 U.S.C. section 2000e et seq., the Civil Rights Act of
1866, 42 U.S.C. section 1981, the Age Discrimination in Employment Act, 29
U.S.C. section 621 et seq., the Older Workers Benefit Protection Act, the
Rehabilitation Act of 1972, 29 U.S.C. section 701 et seq., the Americans with
Disabilities Act, 42 U.S.C. section 1201 et seq., and the Pennsylvania Human
Relations Act, 43 P.S. section 951 et seq.;
(e) any and all claims under any federal or state statute
relating to employee benefits;
(f) any and all claims in tort, including but not limited to any
claims for fraud, misrepresentation, defamation, interference with contract or
prospective economic advantage, intentional infliction of emotional distress
and/or negligence;
(g) any and all claims for additional commissions, compensation
or damages of any kind; and
(h) any and all claims for attorneys' fees and costs.
4. Limitation on Employee's Release. This Release (a) shall not prevent
Employee from enforcing his rights to receive severance payments and severance
benefits under Section 4 of the Employment Agreement in accordance with the
terms thereof, (b) shall have no applicability to Weston's obligations to
provide severance payments and severance benefits Section 4 of the Employment
Agreement, and (c) shall not release Weston from (i) any obligation it might
otherwise have to indemnify Employee and hold him harmless from any claims made
against him arising out of his activities as an officer or director of Weston or
its
21
affiliates, to the same extent as Weston is or may be obligated to indemnify
and hold harmless any other officer or director, and (ii) any vested retirement
benefit which by its express terms survives termination of Employee's
employment.
5. Review and Revocation. Employee acknowledges that he has had the
opportunity to review this Release and to consider its terms with his attorneys
and advisors. Employee has forty-five (45) days from the date of distribution of
this Release to him to review it and seven (7) days after the execution date of
this Release to revoke it. This Release shall not be effective unless and until
Employee executes it and the seven-day period has expired.
UNDERSTOOD AND AGREED:
------------------------------ ------------------------------------
Witness Xxxxx X. Xxxxxxx
Attest: XXX X. XXXXXX, INC.
By: By:
-------------------------------- --------------------------------
Secretary
(Corporate Seal)
STATE OF :
---------------------------
: SS:
COUNTY OF :
--------------------------
Before me, __________________, on this day personally appeared
_______________, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed such instrument
for the purposes and consideration therein expressed.
Given under my hand and seal of office this ____ day of _________, ____.
-------------------------------
NOTARY PUBLIC in and for
-------------------------------
22
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is dated as of __________________ , 2000 (the
"Effective Date") between Xxx X. Xxxxxx, Inc., a Pennsylvania corporation
("Company"), and Xxxxxx X Xxxxxx, Xx. ("Xxxxxx")
WHEREAS, Xxxxxx is presently employed by Company as Branch Office Manager
I - San Antonio ; and
WHEREAS, the parties desire to set forth in this Agreement the terms and
conditions of Xxxxxx'x employment by the Company as Branch Office Manager I -
San Antonio ;
THEREFORE, in consideration of the mutual obligations contained in this
Agreement and the mutual benefits to be derived from those obligations, and
intending to be legally bound by this Agreement, Xxxxxx and the Company agree as
follows:
SECTION 1. CAPACITY AND DUTIES
1.1. EMPLOYMENT; ACCEPTANCE OF EMPLOYMENT. Company hereby employs Xxxxxx
and Xxxxxx hereby accepts employment by the Company, as Branch Office Manager I
- San Antonio upon the terms and conditions set forth below in this Agreement.
1.2. CAPACITY AND DUTIES.
(a) Xxxxxx shall be employed by Company as its Branch Office
Manager I - San Antonio, subject to the supervision of the Chief Operating
Officer (the "COO") or the designee(s) of the COO, and shall perform such duties
and shall have such authority as may from time to time be specified by the COO
or the designees(s) of the COO. Xxxxxx shall report directly to the Company's
COO or the designees(s) of the COO and shall perform his duties for Company
principally from Company's office located in San Antonio, Texas, except for
periodic travel that may be necessary or appropriate in connection with the
performance of Xxxxxx'x duties under this Agreement.
(b) Xxxxxx shall be a full-time employee of the Company and shall
devote his best efforts to the performance of his duties under this Agreement in
a manner which will faithfully and diligently further the business and interests
of the Company and its affiliates (as defined below), and shall not be employed
by or participate or engage in or be a part of the management or operation of
any business enterprise other than the Company and its affiliates, which
materially conflicts with the performance of his duties to Company. For purposes
of this Agreement, "affiliate" means any entity in which at least 50% of the
voting power is controlled
23
by the Company. Nothing in this paragraph shall preclude Xxxxxx from serving as
the Company's appointed member of the board of directors of companies in which
the Company has an interest.
SECTION 2. TERM OF EMPLOYMENT
2.1. TERM. Xxxxxx'x employment under this Agreement shall continue at
will until terminated in accordance with the provisions of this Agreement.
SECTION 3. COMPENSATION
3.1. BASIC COMPENSATION. As compensation for Xxxxxx'x services under this
Agreement, Company shall pay to Xxxxxx a cash salary at the annual rate of
$88,000 (the "Base Salary"), payable by Company check in periodic installments
in accordance with the Company's regular payroll practices in effect from time
to time. The Base Salary shall be reviewed from time to in accordance with
standard Company practices.
3.2. INCENTIVE COMPENSATION.
(a) ANNUAL INCENTIVE PAY/BONUS. In addition to the Base Salary
provided for in Section 3.1, Xxxxxx will participate in the Company's Pay for
Performance Incentive Compensation Program ("PFP") with a PFP guideline
incentive that would provide quarterly incentive payments to Xxxxxx, if the
Company and Xxxxxx meet their PFP performance targets in accordance with the
terms of the PFP Program, that, on an annual basis, total a percentage of
Xxxxxx'x Base Salary at least equal to the Base Salary percentage applicable to
Xxxxxx under his PFP guideline incentive existing as of the Effective Date,..
Xxxxxx understands that the Company's PFP program may be reviewed and revised
and Xxxxxx shall only be entitled to participate in the current PFP program if,
and to the extent that, the program is maintained by the Company for its
management personnel generally. While the PFP program is maintained by the
Company, Xxxxxx'x performance rating under that program shall be determined by
the COO or the designee(s) of the COO. If the PFP program is not maintained by
the Company, Xxxxxx will be entitled to participate in any revised incentive
program for persons of comparable rank and responsibility as Xxxxxx, under the
terms of that revised program.
(b) RETENTION BONUS. Company will pay Xxxxxx a $75,000 retention
bonus. This retention bonus will be paid, by Company check, to Xxxxxx in three
annual cash installments of $25,000 each, on the Effective Date, and on each of
the two succeeding anniversaries of the Effective Date. In the event any
installment payment under this Section 3.2(b) is past due, Company shall
promptly pay such past due amount to Xxxxxx plus interest thereon from the due
date of such late installment payment to the date of payment of such installment
payment, calculated at an annual rate of 6%.
3.3. BENEFITS. In addition to the compensation provided for in Section
3.1 hereof, Xxxxxx shall be entitled during the term of his employment under
this Agreement to participate
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24
in all benefit plans maintained by the Company and available to Company
employees of comparable rank and responsibility as Xxxxxx; provided, however,
that, if Xxxxxx receives any severance benefits under Section 4 below, Xxxxxx
shall not be eligible for any severance or termination benefits under any
Company plans, policies or procedures providing for such benefits, including but
not limited to the Xxx X. Xxxxxx, Inc. Employee Severance Plan and any
predecessor or successor severance plan.
3.4. VACATION. Xxxxxx shall be entitled to paid vacation in accordance
with the Company's vacation policy for employees of comparable rank and years of
service.
3.5. EXPENSE REIMBURSEMENT. Company shall reimburse Xxxxxx for all
reasonable expenses incurred by him in connection with the performance of his
duties under this Agreement, in accordance with Company's regular reimbursement
policies and upon receipt of itemized vouchers for such expenses and such other
supporting information as Company may reasonably require.
3.6. AUTOMOBILE. During his employment by Company, Company shall pay
Xxxxxx an automobile allowance and shall also reimburse Xxxxxx for his gasoline
and insurance costs for his automobile, all in accordance with the Company's
automobile allowance policies, which are subject to change from time to time.
Xxxxxx shall, in accordance with the Company's policies, notify Company as to
the business and personal use of his automobile, so that Company may withhold
taxes, as appropriate in connection with the automobile allowance and
reimbursements.
SECTION 4. TERMINATION OF EMPLOYMENT
4.1. DEFINITIONS.
(a) FOR CAUSE. As used in this Agreement "For Cause" shall mean
that Xxxxxx committed or engaged in an intentional act of (i) fraud,
embezzlement, dishonesty or theft in connection with his duties under this
Agreement or in the course of his employment with Company, (ii) wrongful damage
to Company's property, (iii) wrongful disclosure of Company's secret processes
or confidential information, (iv) a material breach of Xxxxxx'x obligations
under this Agreement, that materially impairs Xxxxxx'x performance of his
obligations under this Agreement, (v) criminal misconduct, including illegal
drug use, that materially impairs Xxxxxx'x performance of his obligations under
this Agreement, (vi) a material breach of the Company's written rules or
policies that materially impairs Xxxxxx'x performance of his obligations under
this Agreement, or (vii) any kind, whether or not specifically referenced in the
foregoing clauses (i)-(vi), which is materially harmful to Company. No act, or
failure to act, shall be deemed "intentional" if it was due primarily to an
error in judgment or to negligence, but shall be deemed "intentional" only if
done, or omitted to be done, by Xxxxxx not in good faith and without reasonable
belief that his act or omission was in Company's best interest.
3
25
(b) GOOD REASON RESIGNATION. As used in this Agreement, Xxxxxx
shall be deemed to have resigned his employment by Company for "Good Reason" if
Xxxxxx elects in good faith, to discontinue his employment with Company because
(A) his responsibilities, duties or authority have changed materially from their
level on the effective date of this Agreement, which change substantially
reduces the rank or level, responsibility or scope of Xxxxxx'x position with
Company (or its successor in the case of a merger, consolidation, acquisition or
transfer of substantially all of its business assets) below that which he has on
the effective date of this Agreement as Company's Branch Office Manager I - San
Antonio or (B) his salary (as adjusted from the effective date of this
Agreement) has been decreased; or (C) the Company has changed the principal
location for the performance of Xxxxxx'x duties to a place that is more than 25
miles from the current location of the Company's San Antonio Office.
If Xxxxxx elects to end his employment by Company for a reason which Xxxxxx
believes is a Good Reason as defined by this Section 4.1(b), he shall provide
the Company with written notice of such resignation and shall state in that
notice the specific matter or matters which he asserts constitute the Good
Reason for his resignation. Notwithstanding anything else in this Agreement,
Xxxxxx shall not be deemed to have resigned his employment by Company for "Good
Reason" unless he delivers such written notice to Company within sixty (60) days
from the date on which he first learns of the specific matter or matters which
he asserts constitute Good Reason for his resignation.
(c) DISABILITY. As used in this Agreement, "Disability" or
"Disabled" shall mean a physical or mental disability which is either (i) a
total and permanent disability as defined in the principal disability benefit
plan offered by the Company to its employees of comparable rank and
responsibility as Xxxxxx and in effect at the time Xxxxxx becomes disabled
(whether or not Xxxxxx has elected to purchase such disability insurance), or
(ii) determined to be a total and permanent disability by a physician who is
selected by the Company and is acceptable to Xxxxxx or his legal representative
(which acceptance shall not be unreasonably withheld).
(d) Anniversary Date. As used in this Agreement, "First
Anniversary Date" shall mean the date that is one year after the Effective Date;
and "Third Anniversary Date" shall mean the date that is three years after the
Effective Date.
4.2. TIME AND MANNER OF TERMINATION OR RESIGNATION. Xxxxxx'x employment
by Company shall be at will. Xxxxxx'x employment shall cease immediately upon
Xxxxxx'x death or Disability, or upon written notice to Xxxxxx that the Company
is terminating Xxxxxx'x employment For Cause. Otherwise, Xxxxxx'x employment
shall cease on the date selected by the party initiating termination or
resignation, which date shall be specified in a written notice to the other
party, and which (i) in the event of termination of Xxxxxx by the Company for
any reason other than For Cause, shall be thirty (30) days after delivery of
such notice, and (ii) in the event of resignation by Xxxxxx, shall be thirty
(30) days after delivery of such notice unless a longer or shorter period is
approved in writing by both the Company and Xxxxxx. The date on which Xxxxxx'x
employment by Company ceases is referred to in this Agreement as the "Employment
Ending Date".
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26
As of the Employment Ending Date, if Xxxxxx is a member of the Company's Board
or of the Board of Directors of any affiliate, or if Xxxxxx is an officer of
Company or of any affiliate, he shall provide the Company with his written
resignation from each such Board and from each such position as an officer.
4.3. BENEFITS PAYABLE.
(a) SEVERANCE AMOUNT. If, on or before the First Anniversary Date,
either (1) Company terminates Xxxxxx'x employment for any reason other than For
Cause, death or Disability or (2) Xxxxxx resigns his employment by Company for
Good Reason, Xxxxxx shall be paid his monthly salary on the Employment Ending
Date for the period from the Employment Ending Date until the Third Anniversary
Date. If, at any time after the First Anniversary Date but on or before the
Third Anniversary Date, either (1) Company terminates Xxxxxx'x employment for
any reason other than For Cause, death or Disability or (2) Xxxxxx resigns his
employment by Company for Good Reason, Xxxxxx shall be paid his monthly salary
on the Employment Ending Date for 24 months. . For purposes of this Section
4.3(a), Xxxxxx'x "monthly salary" shall be one-twelfth of the sum of (A)
Xxxxxx'x highest annual base salary rate during his employment by the Company,
plus (B) all other amounts, including incentive payments (but not including any
retention bonus payments made to Xxxxxx under Section 3.2(b) above), that would
be deemed compensation for purposes of IRS form W-2 and that were paid to Xxxxxx
during the twelve full calendar months preceding the calendar month in which the
Employment Ending Date occurs. The Company shall make any payments due to Xxxxxx
under this Section 4.3(a), beginning with the first calendar month after the
Employment Ending Date, in accordance with the Company's regular salary payment
policies for employees. The time period during which the severance amount under
this Section 4.3(a) is payable to Xxxxxx is referred to below as the "Severance
Period".
(b) ADDITIONAL SEVERANCE BENEFITS. If severance payments are
payable to Xxxxxx under Section 4.3(a) above, the following additional severance
benefits shall be provided to Xxxxxx by Company:
(i) Company shall pay Xxxxxx the amount earned under its
PFP program (or any applicable replacement incentive program in effect at the
time of the Employment Ending Date) for the portion of the calendar quarter to
and including the Employment Ending Date. Company shall make such payment on or
about the date Company makes such payments to other participating employees;
(ii) Company shall pay Xxxxxx on the Employment Ending Date
any balance of the retention bonus described in paragraph 3.2(b) above that has
not been paid as of the Employment Ending Date;
(iii) Company shall provide medical, dental and
prescription plan benefits for Xxxxxx, on the same cost-sharing and other basis
as is then in effect for active employees, during the Severance Period or until
Xxxxxx elects that such coverages sooner cease.
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27
After such coverages cease in accordance with the previous sentence, Xxxxxx may
elect continuation coverage completely at his own expense as provided by law;
(iv) Company shall provide Xxxxxx with outplacement
services of the type typically provided by the Company at Company's expense on
the Employment Ending Date;
(v) Company shall pay Xxxxxx his automobile allowance and
reimbursement, at the level in effect on the Employment Ending Date, for 12
months immediately following the Employment Ending Date; and
(vi) If, within the Severance Period, Xxxxxx relocates to a
location that is more than 100 miles from his principal residence on the
Employment Ending Date, Company shall pay Xxxxxx an amount equal to the
aggregate costs reasonably incurred by Xxxxxx in connection with Xxxxxx'x
relocation (including all moving and transportation costs associated with such
relocation and the closing costs incurred by Xxxxxx in connection with both the
sale of Xxxxxx'x principal residence in San Antonio, Texas, on the Employment
Ending Date and the purchase of Xxxxxx'x subsequent principal residence to which
he relocates); provided, however, that in no event shall the amount paid to
Xxxxxx under this Section 4.3(b)(vi) exceed $25,000.
(c) WHEN BENEFITS/PAYMENTS NOT PAYABLE. With the exception of the
retention bonus described in Section 4.3(b)(ii) above, none of the severance
benefits or payments otherwise described in this Section 4.3 shall be payable to
Xxxxxx if (i) Xxxxxx'x employment with Company is terminated For Cause or as a
result of Xxxxxx'x death or Disability or (ii) Xxxxxx voluntarily ends his
employment with Company other than by resigning for Good Reason. The
compensation and benefits which the Company is required to pay Xxxxxx pursuant
to this Section 4.3 are the only payments, compensation or benefits to which the
Xxxxxx is entitled upon a termination or resignation of employment.
(d) RELEASE. As a condition to receipt of the severance benefits
described in Sections 4.3(b) (i) (iii) and (iv) above, Xxxxxx shall deliver an
effective, executed release to Company in the form attached to this Agreement as
Exhibit "A" on or before the Employment Ending Date.
(e) COOPERATION. As a condition to receipt of the severance
benefits described in Sections 4.3(b)(i) (iii) and (iv) above, Xxxxxx shall
provide Company with such information pertaining to his employment with Company
as he may have and shall assist Company to transfer his duties to such successor
or successors as Company may designate. Company shall reimburse Xxxxxx for all
reasonable out of pocket expenses he incurs in fulfilling his obligation under
the preceding sentence.
(f) ACCELERATION ELECTION. Company may, at its sole option and in
its sole discretion, at any time or from time to time, accelerate the time and
manner of making any one or more payments required under this Section 4.3. The
benefits provided to Xxxxxx under this Section 4.3 shall be fully "grossed up"
to take into account any additional federal, state and local
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28
income tax and any applicable federal and state payroll taxes that Xxxxxx will
be required to pay as a result of the payment of such benefits being
accelerated. The amount of the "gross-up" payments shall be determined based on
the highest marginal income tax rates applicable to Xxxxxx during the year in
question (including the effects of any sur-tax). The "gross-up" calculation
shall be made in a manner that results in Xxxxxx receiving, after all applicable
income and payroll taxes have been paid, the gross amount of the benefit in
question less any taxes Xxxxxx would have paid absent the acceleration.
(g) TAXES. Company shall withhold from payments to Xxxxxx and
remit to the appropriate government agencies such payroll taxes and income
withholding as Company determines is or may be necessary under applicable law
with respect to amounts paid to Xxxxxx under this Section 4.3.
(h) ESTATE TO RECEIVE SEVERANCE BENEFITS/PAYMENTS. In the event
that Xxxxxx becomes entitled to receive any severance benefits or payments under
Sections 4.3(a) or (b) above, and Xxxxxx dies before all such benefits or
payments are made by Company, the unpaid balance of such benefits or payments
shall be paid to Xxxxxx'x estate.
SECTION 5. RESTRICTIVE COVENANTS
5.1. CONFIDENTIALITY. Xxxxxx acknowledges a duty of confidentiality owed
to Company and shall not, at any time during or after his employment by Company,
retain in writing, use, divulge, furnish, or make accessible to anyone, without
the express authorization of the Company's Chief Operating Officer, any trade
secret, private or confidential information or knowledge of Company or any of
its affiliates obtained or acquired by him while so employed. All computer
software, address books, rolodexes, business cards, telephone lists, customer
lists, price lists, contract forms, catalogs, books, records, and files and
know-how acquired while an employee of Company, are acknowledged to be the
property of Company and shall not be duplicated, removed from Company's
possession or made use of other than in pursuit of Company's business. Upon the
Employment Ending Date, Xxxxxx shall deliver to Company, without further demand,
all copies thereof which are then in his possession or under his control.
5.2. INVENTIONS AND IMPROVEMENTS. During the term of his employment,
Xxxxxx shall promptly communicate to Company all ideas, discoveries and
inventions which are or may be useful to Company or its business. Xxxxxx
acknowledges that all ideas, discoveries, inventions, and improvements which are
made, conceived, or reduced to practice by him and every item of knowledge
relating to Company's business interests (including potential business
interests) gained by him during his employment hereunder are the property of
Company, and Xxxxxx hereby irrevocably assigns all such ideas, discoveries,
inventions, improvements, and knowledge to Company for its sole use and benefit,
without additional compensation. The provisions of this Section shall apply
whether such ideas, discoveries, inventions, improvements or knowledge are
conceived, made or gained by him alone or with others; whether during or after
usual working hours, whether on or off the job, whether applicable to matters
directly or indirectly related to Company's business interests (including
potential business interests), and
7
29
whether or not within the specific realm of his duties. Xxxxxx shall, upon
request of Company, but at no expense to Xxxxxx, at any time during or after his
employment with Company, sign all instruments and documents requested by Company
and otherwise cooperate with Company to protect its right to such ideas,
discoveries, inventions, improvements, and knowledge, including applying for,
obtaining, and enforcing patents and copyrights thereon in any and all
countries.
5.3. NONCOMPETITION; NONSOLICITATION. If, within three years after the
Effective Date, Xxxxxx'x employment by Company is terminated for any reason,
whether by Xxxxxx or by Company, Xxxxxx shall not, without Company's prior
written approval, either directly or indirectly, for his own account or for the
account of another person or entity, during the six months after the Employment
Ending Date:
(a) acquire or hold more than a 5% ownership interest in any of
Company's or an affiliate's competitors in the hazardous waste cleanup business;
(b) compete with Company or any affiliate in the hazardous waste
cleanup business by soliciting any business from any person or entity that was
at any time during the six months immediately preceding the Employment Ending
Date a client or potential client of Company or any affiliate in the area of
hazardous waste cleanup, as to which client or potential client Company or an
affiliate had rendered a significant volume of service or had a significant
amount of direct business contact for the purpose of soliciting future business;
or
(c) render services within the continental United States, directly
or indirectly, to any of Company's or an affiliate's competitors in the
hazardous waste cleanup business, if such services are similar in nature (in
whole or in part) to services Xxxxxx rendered to Company or any affiliate at any
time during the six months immediately preceding the Employment Ending Date.
(d) solicit or otherwise induce any employee of Company or an
affiliate to leave the employment of Company or the affiliate, or induce any
such employee to become an employee of, or otherwise become associated with, any
company or business other than Company or the affiliate. This paragraph shall
apply to inducement, hiring or solicitation of any employee of Company or an
affiliate, regardless of position.
Upon the breach by Xxxxxx of his obligations under this Section 5.3, in addition
to Company's right to seek injunctive relief as set forth in Section 5.4 of this
Agreement, Company's obligation to make severance payments or provide severance
benefits to Xxxxxx under Section 4 of this Agreement shall terminate immediately
and Xxxxxx shall, within 10 days after written demand by Company, repay to
Company all severance payments previously made to Xxxxxx as well as an amount
equal to the cost of severance benefits previously provided to Xxxxxx.
5.4. INJUNCTIVE AND OTHER RELIEF.
(a) Xxxxxx acknowledges and agrees that his obligations contained
in this Section 5 (including but not limited to the geographic scope and time
period of the limitations on
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competition in Section 5.3) are fair and reasonable in light of the
consideration paid under this Agreement, and are reasonably necessary to protect
the Company; and that damages alone shall not be an adequate remedy for any
breach by Xxxxxx of those obligations. Accordingly, Xxxxxx expressly agrees
that, in addition to any other remedies that Company may have, Company shall be
entitled to seek injunctive relief in any court of competent jurisdiction for
any breach or threatened breach of any of those obligations by Xxxxxx. Nothing
contained in this Agreement shall prevent or delay Company from seeking, in any
court of competent jurisdiction, specific performance or other equitable
remedies in the event of any breach or intended breach by Xxxxxx of any of his
obligations under this Agreement.
(b) Notwithstanding the equitable relief available to Company,
Xxxxxx, in the event of a breach of his obligations contained in Section 5 of
this Agreement, understands and agrees that the uncertainties and delay inherent
in the legal process would result in a continuing breach for some period of
time, and therefore, continuing injury to Company until and unless Company can
obtain appropriate equitable relief. Therefore, in addition to such equitable
relief, Company shall be entitled to seek monetary damages for any such period
of breach until the termination of such breach, in an amount deemed reasonable
to cover all actual and consequential losses, plus all moneys received by Xxxxxx
as a result of said breach, and all costs and reasonable attorneys' fees
incurred by Company in enforcing this Agreement. If Xxxxxx should use or reveal
to any other person or entity any confidential information in violation of this
Agreement, this will be considered a continuing violation on a daily basis for
so long a period of time as such confidential information is made use of by
Xxxxxx or any such other person or entity.
SECTION 6. MISCELLANEOUS
6.1. PRIOR EMPLOYMENT. Xxxxxx represents and warrants that he is not a
party to any other employment, non-competition or other agreement or restriction
which could interfere with his employment with Company or with his or Company's
rights and obligations under this Agreement, and the Company represents and
warrants that it has no knowledge of any such agreement to which Xxxxxx is a
party. Xxxxxx further represents and warrants that his acceptance of employment
with Company and the performance of his duties under this Agreement will not
breach the provisions of any contract, agreement, or understanding to which he
is party or any duty owed by him to any other person.
6.2. SEVERABILITY. The invalidity or unenforceability of any particular
provision or part of any provision of this Agreement shall not affect the other
provisions or parts of this Agreement, except that in the event that (a) Xxxxxx
seeks to have the Release described in Section 4.3(d) above held invalid or
unenforceable and (b) that Release is held invalid or unenforceable and (c)
Xxxxxx is permitted to maintain against Company any claim that was purported to
be released under that Release, then Company's obligation to provide severance
payments and benefits under Section 4.3 of this Agreement (except for benefits
payable under Section 4.3(b)(ii) above) shall be deemed null and void and Xxxxxx
shall repay to Company any of those severance payments and benefits (except for
any benefits paid to Xxxxxx under Section
9
31
4.3(b)(ii)) already paid by Company. In the event that any provision of this
Agreement is determined to be invalid or unenforceable by a court of competent
jurisdiction, Xxxxxx and Company shall negotiate in good faith to provide
Company and Xxxxxx with protection as nearly equivalent to that found to be
invalid or unenforceable and if any such provision shall be so determined to be
invalid or unenforceable by reason of the duration or geographical scope of the
covenants contained therein, such duration or geographical scope, or both, shall
be considered to be reduced to a duration or geographical scope to the extent
necessary to cure such invalidity.
6.3. ASSIGNMENT. This Agreement shall not be assignable by Xxxxxx, and
shall be assignable by Company only to any person or entity which may become a
successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to Company in the business or a portion of the business presently
operated by it. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors, assigns,
heirs, executors and administrators.
6.4. NOTICES. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service, or by registered or certified mail, postage prepaid, return receipt
requested, (confirmed by U.S. mail), addressed as set forth below or to such
other person and/or at such other address as may be furnished in writing by any
party hereto to the other. Any such notice shall be deemed to have been given as
of the date received, in the case of personal delivery, or on the date shown on
the receipt or confirmation therefore, in all other cases. Any and all service
of process and any other notice in any such action, suit or proceeding shall be
effective against any party if given as provided in this Agreement; provided
that nothing herein shall be deemed to affect the right of any party to serve
process in any other manner permitted by law.
If to Company:
0000 Xxxxxx Xxx
Xxxx Xxxxxxx, XX 00000
Attention: Chief Executive Officer
With a copy to:
F. Xxxxxxx Xxxxxxx, Esq.
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
18th and Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
If to Xxxxxx:
---------------
---------------
---------------
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6.5. ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes the
entire agreement between the Company and the Xxxxxx with respect to the matters
contemplated herein and, unless otherwise stated in this Agreement, supersedes
all prior agreements and understandings with respect thereto. Any amendment,
modification, or waiver of this Agreement shall not be effective unless in
writing and signed by the party against whom enforcement is sought. The failure
by any party to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant or
condition, nor shall a party's waiver or relinquishment of any right or power
hereunder at any one or more times be deemed a waiver or relinquishment of such
right or power at any other time or times.
6.6. GOVERNING LAW. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the internal laws of the Commonwealth
of Pennsylvania (and United States federal law, to the extent applicable),
without giving effect to otherwise applicable principles of conflicts of law.
6.7. HEADINGS; COUNTERPARTS. The headings of paragraphs in this Agreement
are for convenience only and shall not affect its interpretation. This Agreement
may be executed in two or more counterparts, each of which shall be deemed to be
an original and all of which, when taken together, shall be deemed to constitute
but one and the same Agreement.
6.8. FURTHER ASSURANCES. Each of the parties hereto shall execute such
further instruments and take such other actions as any other party shall
reasonably request in order to effectuate the purposes of this Agreement.
6.9. NON-ALIENATION. None of the rights or payments contemplated under
this Agreement may be sold, given away, assigned, transferred, pledged,
mortgaged, alienated, hypothecated or in any way encumbered or disposed of by
Xxxxxx, or any executor, administrator, heir, legatee, distributee, relative or
any other person or entity, whether or not in being, claiming under Xxxxxx by
virtue of this Agreement, and none of the rights or benefits contemplated by
this Agreement shall be subject to execution, attachment or similar process. Any
sale, gift, assignment, transfer, pledge, mortgage, alienation, hypothecation or
encumbrance, or other disposition of this Agreement or of such rights or
benefits contrary to the foregoing provisions, or the levy or any attachment or
similar process thereon, shall be null and void and without effect.
6.10. CONSULTATION WITH COUNSEL. Xxxxxx acknowledges that he has had the
opportunity to consult separately with counsel of his choice concerning this
Agreement and the meaning of the terms of this Agreement; that he has been
advised by Company to do so; and that he has entered into this Agreement
knowingly and of his own free will and volition.
6.11. RIGHT TO USE LIKENESS. Xxxxxx hereby grants to Company the absolute
right and permission to copyright and use, re-use and/or publish for lawful
business purposes, any photographic portraits or pictures of Xxxxxx (and printed
matter in conjunction therewith) in which Xxxxxx may be included in whole or in
part or composite, for art, advertising, or trade.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: XXX X. XXXXXX, INC.
By:
-----------------------------------
Chief Executive Officer
------------------------------- ----------------------------------------
Witness Xxxxxx X. Xxxxxx, Xx.
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34
EXHIBIT "A"
CROSS RELEASE
Xxx X. Xxxxxx, Inc. ("Weston") and Xxxxxx X. Xxxxxx, Xx. ("Employee")
entered into an Amended Employment Agreement as of Date, Year (the "Employment
Agreement"). To satisfy the requirement of Section 4.3(d) of the Employment
Agreement, Employee and Weston hereby grant the other the Releases set forth
below:
---------------------------------
1. Release by Weston. Weston, on behalf of itself and its subsidiaries,
irrevocably and unconditionally releases and forever discharges Employee, his
heirs, administrators and legal representatives from any and all manner of
actions, causes, matters, suits, debts, dues, accounts, bonds, covenants,
agreements, judgments, claims, controversies, guarantees, warranties, damages,
liabilities, or demands of any nature whatsoever in law or equity, whether or
not known to it, which it has ever had, now has, or hereafter can, shall or may
have, for, upon, or by reason of any matter, action, omission to act,
transaction, practice, conduct, thing or cause of any kind whatsoever from the
beginning of the world to the date it executes this Release. Such remise,
release and discharge of Employee includes, without limitation, any and all
claims under any and all federal or state statutes or the common law and extends
without limitation to any and all acts, practices or conduct by Employee whether
or not it has knowledge of such acts, omissions, practices, conduct or the
effects thereof, or if any such effects exist or may in the future exist as a
result of any acts, omissions, practices, or conduct that occurred prior to the
date it executes this Release.
2. Limitation on Weston's Release. Notwithstanding the foregoing, this
Release shall not prevent Weston from enforcing its rights under the Employment
Agreement.
3. Release by Employee. Employee, for himself, his heirs, and personal
and legal representatives, except as provided in Section 4 hereof, does hereby
irrevocably and unconditionally release, remise and forever discharge Weston,
its subsidiaries, affiliates, divisions, officers, directors and employees (the
"Releasees"), and each of them, however denominated, past, present and future,
and their predecessors, successors and assigns, of and from any and all manner
of actions, causes, matters, suits, dues, bonds, judgments, debts, accounts,
covenants, agreements, claims, controversies, guarantees, warranties, damages,
liabilities, or demands of any nature whatsoever in law or equity, whether or
not now known to him which he ever had, now has or hereafter can, shall or may
have, for, upon, or by reason of any matter, action, omission to act,
transaction, practice, conduct, cause or thing of any kind whatsoever from the
beginning of the world to the date hereof. Such release, remise and discharge of
the Releasees includes without limitation any and all claims under any and all
federal and state statutes or common law and extends without limitation, to any
and all acts, practices or conduct by the Releasees, or the effects thereof,
whether or not Employee now has
35
knowledge of such acts, omissions, practices, conduct or the effects thereof, if
any such effects exist or may in the future exist as a result of any act,
omission, practice or conduct that occurred prior to the date hereof. Except as
provided in Section 4, this release shall specifically include, but not be
limited to, the following:
(a) any and all claims and matters of any kind which arise or
might arise, or which otherwise relate to Employee's employment with Weston or
Employee's termination of employment pursuant to the Employment Agreement;
(b) any and all claims for wages and benefits (including without
limitation salary, stock, stock options, commissions, bonuses, severance pay,
health and welfare benefits, vacation pay and any other fringe-type benefit);
(c) any and all claims for wrongful discharge, breach of contract
(whether written or oral, express or implied), and implied covenants of good
faith and fair dealing;
(d) any and all claims for alleged employment discrimination on
the basis of age, race, color, religion, sex, national origin, veteran status,
disability and/or handicap, in violation of any federal, state or local statute,
ordinance, judicial precedent or executive order, including but not limited to
claims for discrimination under the following statutes: Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000e et seq., the Civil Rights Act of
1866, 42 U.S.C. Section 1981, the Age Discrimination in Employment Act, 29
U.S.C. Section 621 et seq., the Older Workers Benefit Protection Act, the
Rehabilitation Act of 1972, 29 U.S.C. Section 701 et seq., the Americans with
Disabilities Act, 42 U.S.C. Section 1201 et seq., and the Pennsylvania Human
Relations Act, 43 P.S. Section 951 et seq.;
(e) any and all claims under any federal or state statute relating
to employee benefits;
(f) any and all claims in tort, including but not limited to any
claims for fraud, misrepresentation, defamation, interference with contract or
prospective economic advantage, intentional infliction of emotional distress
and/or negligence;
(g) any and all claims for additional commissions, compensation or
damages of any kind; and
(h) any and all claims for attorneys' fees and costs.
4. Limitation on Employee's Release. This Release (a) shall not prevent
Employee from enforcing his rights to receive severance payments and severance
benefits under Section 4 of the Employment Agreement in accordance with the
terms thereof, (b) shall have no applicability to Weston's obligations to
provide severance payments and severance benefits Section 4 of the Employment
Agreement, and (c) shall not release Weston from (i) any obligation it might
otherwise have to indemnify Employee and hold him harmless from any claims made
against him arising out of his activities as an officer or director of Weston or
its
36
affiliates, to the same extent as Weston is or may be obligated to indemnify and
hold harmless any other officer or director, and (ii) any vested retirement
benefit which by its express terms survives termination of Employee's
employment.
5. Review and Revocation. Employee acknowledges that he has had the
opportunity to review this Release and to consider its terms with his attorneys
and advisors. Employee has forty-five (45) days from the date of distribution of
this Release to him to review it and seven (7) days after the execution date of
this Release to revoke it. This Release shall not be effective unless and until
Employee executes it and the seven-day period has expired.
UNDERSTOOD AND AGREED:
--------------------------------- ----------------------------------------
Witness Xxxxxx X. Xxxxxx, Xx.
Attest: XXX X. XXXXXX, INC.
By: By:
------------------------------ -------------------------------------
Secretary
(Corporate Seal)
STATE OF __________________ :
: SS:
COUNTY OF _________________ :
Before me, __________________, on this day personally appeared
_______________, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed such instrument
for the purposes and consideration therein expressed.
Given under my hand and seal of office this _______ day of
______________, ______.
----------------------------------------
NOTARY PUBLIC in and for
----------------------------------------
37
Personal And Confidential
Dear Xxxxxx
You have asked that I confirm our intention to as to your employment and
severance arrangements in the event that the Company were to be sold or merged
as a result of the current evaluation of strategic alternatives. This letter
will confirm that, if Weston were sold or merged as part of the ongoing
evaluation of strategic alternatives (the "transaction"), and if within three
years after the closing of the transaction, Weston terminated your employment,
you would receive (as severance) salary and benefit continuation for two years
after the date your employment is terminated. (No such severance would be
payable if you were terminated for engaging in intentionally wrongful misconduct
such as acts of dishonesty, embezzlement, etc., or if you voluntarily resigned
your employment).
In addition, if at any time during such three year period you were to elect in
good faith to discontinue your employment with the Company because (i) your
responsibilities, duties or authority had been changed materially from their
level on the date of this letter, which change were to substantially reduce the
level of responsibility or scope of your position with the Company (or any
successor), (ii) your salary had been decreased or (iii) the Company had changed
the principal location for the performance of your duties without your consent
to a place more than 25 miles from your current location, you would receive the
severance benefit referred to in the preceding paragraph.
Severance payable to you under this letter is in lieu of any severance payment
under the Company's general Severance Plan, and is conditioned on your execution
of a release of all claims against the Company, in the form customarily used by
the Company.
This letter amends your existing Weston Employment Agreement, which, as so
amended, remains in effect. As set forth in that agreement, your employment is
at will, but, upon consummation of the transaction, you would be entitled to
receive severance under the conditions outlined above.
This will also confirm that if a job vacancy occurs at Weston headquarters in
West Chester, Pennsylvania, for a job either with your current responsibilities
or at a higher level for which you are qualified, you will be given an
opportunity to apply for that position. In the event your application is
accepted, your relocation expenses will be paid or reimbursed on terms and in an
amount no less favorable to you than those available under current Company
policies.
Because of your family relationship with several Weston Directors, the terms of
this letter will not be effective unless and until they are approved by the
Weston Board of Directors. I anticipate presenting this letter to the Company's
Audit Committee and Board at their next regular meeting in November 2000.
38
Xxxxxx, let me assure you that you are a valued Weston employee and we look
forward to your continued contribution to Weston's success. If the foregoing is
satisfactory, would you please sign the enclosed copy of this letter and return
it to me.
Very truly yours,
RFW
Agreed:
----------------------------------
Xxxxxxx X. Xxxxxxx
By:
-------------------------
WLR, CEO
39
Dear Xxx:
This will confirm that if (a) Weston were to be recapitalized in a change of
control transaction and, (b) after the closing of that recapitalization, Weston
formed a real estate development subsidiary whose purpose was to develop and own
multiple real estate sites for profit (a "real estate capital company") and (c)
equity participation in the real estate capital company was sold, in an offering
that was not a public offer, to investors other than the principal owners of
Weston:
(i) you will be provided the opportunity to invest in the real estate
capital company on terms and conditions no less favorable than those offered to
such other outside equity investors; and
(ii) if a job opportunity becomes available with the real estate
capital company and you are qualified for the job, you will be notified of the
opportunity and provided with an opportunity to apply for the position.
As used in this letter, "subsidiary" shall mean an entity in which Weston has a
greater than 50% ownership interest.
An entity that is formed to purchase an interest in a single real estate
development project or property ("single development entity") shall not be
considered to be a "real estate capital company", even if Weston and other
equity investors receive a direct or indirect equity interest in that single
development entity; provided, however, that if members of Weston management are
offered the opportunity to personally invest in such single development entity,
you will be provided the opportunity to invest in such single development entity
on terms and conditions no less favorable than those offered to such other
members of Weston management.
Weston's obligations set forth above will expire three years after the closing
of the recapitalization/change of control transaction.
Very truly yours,
Xxx X. Xxxxxx, Inc.
By: XX Xxxxxxxxx, CEO
