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EXHIBIT 10.11
THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
XXX X. XXXXXX, INC.
Severance Agreement
Severamce Agreement ("Agreement") made effective as of August 19, 1996
between Xxx X. Xxxxxx Inc., a Pennsylvania corporation, ("Weston") and Xxxxxx
X. Xxxxxxxx ("Xxxxxxxx").
Backgroud
Xxxxxxxx is currently Weston's Executive Vice President.
Weston and Xxxxxxxx have a written agreement with respect to Xxxxxxxx'x
employment ("Full-Time Employment Agreement") dated as of March 13, 1989, which
is attached herto as Exhibit X.
Xxxxxx and xxxxxxxx have entered into (i) six separate Non-Qualified
Stock Option Agreements covering grants made on each of May 2, 1990, March 31,
1992, February 8, 1993, February 14, 1994, February 13, 1995 and February 26,
1996, respectively, attached herto as Exhibits B-1 through B-6 and (ii) a
Supplemental Retirement Agreement dated as of July 1, 1995, attached herto as
Exhibit C. The agreements referred to in the preceding sentence are
collectively referred to as the "Benefit Agreements".
Weston and Xxxxxxxx agree that it would serve the best interests of
each to provide Xxxxxxxx with certain additional benefits in consideration of
Xxxxxxxx'x agreement to terminate his employment with Weston.
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
Agreement
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Resignation Date. Effective as of August 19, 1996, Xxxxxxxx has
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resigned from his position as Weston's Executive Vice President, his position
as an officer and director with any "Weston affiliate" (as defined in Section
3(b)) and from his employment with Weston.
2. Severance Benefits and Payment Conditions. In consideration of
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Xxxxxxxx'x resignation and Xxxxxxxx'x agreements and undertakings under Section
3 hereof, Xxxxxxxx shall receive the severance benefits set forth herein
provided Xxxxxxxx satisfies each of the requirements of Section 3
hereof. Xxxxxxxx'x entitlements under the Benefit Agreements and any employee
benefit plan, including Weston's vacation plan, applicable to a class of Weston
employees which includes Xxxxxxxx shall be as provided for therein without
regard to this Agreement, except as expressly provided under Section 2 or 3
hereof. The severance benefits under this Agreement are as set forth below:
(a) Salary Continuation. Weston shall pay Xxxxxxxx $16,667 per
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month for a period fo nine months, commencing September 1, 1996 and ending May
31, 1997. Weston shall make the payments under this subsection on its reqular
payroll payment dates for
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
employees. If Xxxxxxxx dies before the last payment, the remaining payments
shall be paid to his estate.
(b) Automobile. Weston shall permit Xxxxxxxx to use the
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automobile which it currently has under lease for his use and shall pay
Xxxxxxxx'x expenses associated therewith that it currently pays until February
19, 1997.
(c) Salary-At-Risk. Weston shall pay Xxxxxxxx the amount he
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earned under its Salary-At-Risk Program for the calendar quarter ended
September 30, 1996. Weston shall make the payment on or about the date Weston
makes Salary-At-Risk payments to participating employees.
(d) Supplemental Retirement Agreement. The annual amount
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payable under the Supplemental Retirement Agreement commencing at age 65 shall
be $10,000 per year. For purposes of the supplemental Retirement Agreement,
Xxxxxxxx'x termination shall be treated as an involuntary termination of
employment under Section 6 of the Supplemental Retirement Agreement for a
reason which is not a forfeiture condition under Section 9 of the Supplemental
Retirement Agreement; provided, however, that Xxxxxxxx'x right to receive
payments under the Supplemental Retirement Agreement shall remain conditioned
on
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
Xxxxxxxx'x compliance with the provisions of Section 9 of the Supplemental
Retirement Agreement.
(e) Medical Benefits. Weston shall provide medical, dental
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and prescription plan benefits for Xxxxxxxx on the same basis with respect
to cost sharing and benefits as in effect for active employees for a period of
six months commencing August 20, 1996 and ending February 19, 1997, or until he
sooner elects that such coverages cease. After such six-month period, Xxxxxxxx
may elect continuation coverage completely at his own expense as provided by
law.
3. Xxxxxxxx'x Agreements and Undertakings.
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(a) Cooperation Requirement. During the severance period
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(9/1/96 through 5/31/97) at Weston's reasonable request, Xxxxxxxx shall provide
Weston such information pertaining to his employment with Weston as he may have
and assist Weston to transfer his duties to such successor or successors as
Weston may designate. Weston shall reimburse Xxxxxxxx for all reasonable
expenses he incurs in fulfilling his obligations under the preceding sentence.
(b) Non-Competition Requirement. Xxxxxxxx shall not,
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without Weston's prior written approval, either directly or indirectly, for his
own account or for the a period of two years from and after August 20, 1996:
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
(i) engage in any act or solicitation which undermines
or jeopardizes Weston in its provision of services to its clients;
(ii) engage in any act which undermines or jeopardizes
any business relationship, discussion, negotiation or proposal between Weston
and its clients or prospective clients, which relationship, discussion,
negotiation or proposal began or was made on or before August 19, 1996 and was
known to Xxxxxxxx;
(iii) use or disclose any confidential or proprietary
information or trade secrets of Weston. (Notwithstanding the two year period
described in the introductory sentence of this paragraph 3(b), the prohibition
in this paragraph 3(b)(iii) shall not be limited in time.);
(iv) solicit, recruit or otherwise induce any Weston
employee to leave the employment of Weston;
(v) solicit or otherwise induce any person or entity
which has an existing business relationship with Weston (which is known to
Xxxxxxxx) to alter the terms of the relationship adversely to Weston or to
terminate the relationship;
(vi) solicit or otherwise induce any person or entity
with which Weston has a prospective business relationship (which is known to
Xxxxxxxx) not to enter into the relationship, or to alter the terms of the
prospective business relationship adversely to Weston;
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
(vii) compete with Weston, or assist or render
services to any person or entity on matters which compete with Weston, with
respect to (A) services or goods of the type which are provided or planned to
be provided by Weston and of which Xxxxxxxx learned or learns as a result of
his employment or other affiliation with AsiaStar, or (B) services or goods of
the type which Weston provided to any client during the period of Xxxxxxxx'x
employment by Weston.
For purposes of this Section: "Weston" shall mean Weston and any Weston
affiliate; "Weston affiliate" shall mean any business in which Weston owns
directly or indirectly at least 50% of the equity interests or at least 50% of
the profit interests; and "AsiaStar" shall mean the entity known as AsiaStar
Infrastructure Development Group (Malaysia) Sdn. Bhd., its principals and
affiliates. This Section supersedes the non-competition covenant of Section 8
of the Full-Time Employment Agreement.
If Xxxxxxxx violates any provision of this paragraph 3(b), Weston's
obligation to make payments or provide benefits under Section 2, other than
payments under the Supplemental Retirement Agreement, shall terminate and
Weston shall have all of the rights and remedies provided for in Section 12(b)
hereof as well as restitution of payments made and the cost of benefits
provided under this Agreement, net of any moneys he would have been entitled to
pursuant to his employment agreement and the Supplemental Retirement Agreement.
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
Weston agrees that if Xxxxxxxx is offered a position with AsiaStar, it
shall not be a violation of any provision of this agreement for Xxxxxxxx to
accept such position and perform all duties assigned to him by AsiaStar or that
AsiaStar requires him to perform, provided that in the performance of those
duties Xxxxxxxx does not engage in any act prohibited in paragraphs 3(b)(i)
through (vii) above.
(c) Confidentially Requirements. Except as hereafter provided,
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Xxxxxxxx and Weston shall keep the circumstances of Xxxxxxxx'x employment
and employment termination and the terms of this Agreement, including,
without limitation, the salary continuation and other benefits
provided hereunder, confidential and shall not disclose them to anyone.
Xxxxxxxx may disclose (i) the terms of this Agreement to his spouse or to his
attorney or accountant to the extent necessary to determine his tax liability
or other legal obligations and (ii) the terms of Section 3(b) hereof to a
prospective employer, partner or joint venturer. Weston may disclose the terms
of this Agreement to its attorneys and accountants to the extent necessary to
determine its tax liability or other legal obligations or as may be necessary
to comply with applicable law.
(d) Release. Xxxxxxxx shall deliver an effective release to Weston
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in the form attached hereto as Exhibit D.
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
4. Acceleration Election. Weston may, at its option, at any time
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or from time to time, in its absolute and sole discretion, accelerate the time
and the manner of making any one or more payments required by this Agreement.
5. Non-Alienation. None of the rights or payments contemplated
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under this Agreement may be sold, given away, assigned, transferred, pledged,
mortgaged, alienated, hypothecated or in any way encumbered or disposed of by
Xxxxxxxx, or any executor, administrator, heir, legatee, distributee, relative
or any other person or entity, whether or not in being, claiming under Xxxxxxxx
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 forgoing provisions, or the levy or any
attachment or similar process thereon, shall be null and void and
without effect.
6. Taxes. Weston shall withhold from payments to Xxxxxxxx and
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remit to the appropriate government agencies such payroll taxes and income
withholding as Weston determines is or may be necessary under applicable law
with respect to amounts paid under this Agreement.
7. General Obligation. The rights and benefits of Xxxxxxxx
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hereunder shall be solely those of an unsecured creditor of Weston.
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
8. Waiver of Breach. Weston's failure to insist upon strict
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compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such term, covenant or condition, nor shall Weston'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.
9. Modificiation. This Agreement shall not be modified or amended
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except by written instrument duly executed by Weston and Xxxxxxxx.
10. Severability. If any clause, sentence, paragraph, section, or part
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of this Agreement shall be held by any court of competent jurisdiction to be
invalid, such judgment shall not affect, impair or invalidate any of the other
parts hereof.
11. Notices. Any notice required or permitted to be given under this
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Agreement shall be sufficient if in writing and either hand-delivered to the
addressee or sent by registered or certified mail, if to Xxxxxxxx, to
Xxxxxxxx'x address as shown on Weston's books, and if to Weston, addressed to
both the Chairman of Weston's Board of Directors and Weston's Chief Executive
Officer at Weston's principal business office located at Xxx Xxxxxx Xxx, Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000-0000 or such other address as Weston or Xxxxxxxx
may designate in writing.
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
12. Arbitration.
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(a) General. Except as provided in Section 12(b) below, any
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controversy or claim arising out of or relating to this Agreement or the breach
thereof shall be settled by arbitration in the City of Philadelphia in
accordance with the rules of the American Arbitration Association then in
effect. The decision of the arbitrator shall be final and binding upon the
parties, and judgment upon the decision rendered in such arbitration may be
entered in any court having jurisdiction.
(b) Non-Competition Requirements. Weston may enforce its rights
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under Section 3(b) hereof without regard to Section 12(a), above. Weston shall
be entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief against Xxxxxxxx, in addition to damages and an
equitable accounting of all profits or benefits arising from such violation,
which rights shall be cumulative and in addition to any other rights or
remedies to which Weston may be entitled.
13. Binding Agreement. This Agreement shall inure to the benefit of
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and be binding upon Weston and its successors, whether by merger,
consolidation, stock purchase, acquisition of substantially all of Weston's
business assets, or otherwise and upon Xxxxxxxx, his heirs and legal
representatives. This Agreement shall not be assignable by Xxxxxxxx and shall
be assignable by Weston only to a person or entity which may become a successor
in interest to Weston and which is bound hereby.
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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED
PUBLICLY, EXCEPT AS MAY BE REQUIRED BY LAW [ NOTE: FOREGOING LEGEND NOT ON
ORIGINAL OF THIS DOCUMENT]
14. Captions. The captions of the various provisions shall not be
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deemed a part of this Agreement and shall not be construed in any way to limit
the contents hereof but are inserted herein only for reference and for
convenience of the parties.
15. Governing State Law. This Agreement may be executed at different
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times in different places, but all questions concerning the construction or
validity hereof, or relating to performance hereunder, shall be determined in
accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, Weston has caused this Agreement to be executed by
its duly authorized officers, and Xxxxxxxx has hereunto set his hand and seal
as of the day and year first above written.
XXX X. XXXXXX, INC.
BY: /s/ /s/
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President Xxxxxx X. Xxxxxxxx
Attest: /s/ /s/
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Witness
(Corporate Seal)
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