EXHIBIT 10.13 - EMPLOYMENT AGREEMENT
January 22, 1996
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxx, XX 00000
Re: Employment Agreement
Dear Xx. Xxxxxx:
This letter sets forth the understanding between you and Xxxx Industries,
Inc. ("Xxxx") concerning your employment by Xxxx as its Chief Executive
Officer ("CEO").
1. Base Salary. Effective as of November 1, 1995, your base annual
salary shall be $350,000.
2. Retirement Benefits. You shall participate in the Xxxx Industries
Retirement Plan ("ZIRP"), the Xxxx Retirement Savings Plan, and the
Supplemental Executive Retirement Plan of Xxxx Industries, Inc. dated
October 1, 1981, as the same may be amended from time to time (the
latter plan being referred to herein as the "SERP") in accordance
with the provisions of such plans; provided, however, that
notwithstanding any term of the SERP to the contrary,
(a) Your SERP rights shall vest if you are employed as Xxxx"s CEO
through October 17, 1998,
(b) SERP benefits shall begin on the later of your attaining age 65
and the date of your retirement,
(c) Cash and/or securities equal in value to the present value of
your accrued SERP benefit as determined by an independent
actuary selected by Xxxx shall from time to time, but at least
annually, be deposited in a trust (provided, however, the trust
funds shall at all times be subject to claims of general
creditors of Xxxx),
(d) Your aggregate benefit shall total 2 1/4% of the average of the
last three years of Compensation (as defined in the SERP) for
each year of service as CEO, consisting of the sum of your ZIRP
benefits, SERP benefits otherwise payable in accordance with
the terms of the SERP, and such additional amount as is
required to cause the total to equal the 2 1/4% benefit as
defined in this paragraph, and
-11-
Xx. Xxxxxx X. Xxxxxx
January 22, 1996
-2-
(e) In the event of your death within five years following the
commencement of the payment of your SERP benefits, the benefit
otherwise payable to your surviving spouse in accordance with
the terms of the SERP shall not apply, and instead she shall be
paid 60% of your benefit for her life.
3. Death During Employment. In the event that you die while you are
employed as CEO, then in addition to such other benefits as may be
payable in accordance with the terms of Xxxx"s benefit plans in which
you are a participant at the date of death, your salary shall be paid
to your surviving spouse for as long as she survives you, up to one
year.
4. Termination By Xxxx Without Cause.
(a) In the event that you are terminated by Xxxx without cause:
(i) Except as provided in subparagraph (c) below, you shall
receive one year"s salary, to be paid in twelve monthly
installments commencing with the month immediately
following the month in which notice of termination is
issued;
(ii) Your moving expenses to Princeton, New Jersey, or another
location of your choosing within the United States shall
be paid by Xxxx; and
(iii) If said termination occurs prior to October 17, 1998, the
Stock Option Agreement Under 1991 Plan dated October 17,
1994 ("Initial Option Agreement"), by which you were
granted options for 75,000 shares of Xxxx common stock,
shall be deemed to be modified to provide that the
options thereunder shall become exercisable on the date
of the notice of termination.
(b) As used herein, "cause" means dishonest, illegal, unethical, or
immoral action.
(c) The provision for payment of one year"s salary as provided in
subparagraph (a)(i) shall not apply in the event that a lump-
sum severance payment becomes payable under paragraph 4(iv)(B)
of the Agreement Relating to Employment dated October 17, 1994,
between you and Xxxx ("Xxxxxxxxx Agreement"), due to the
occurrence of a "change in control" as defined therein.
5. Surviving Agreements. Except as modified by the foregoing terms, the
following agreements are in force and effect in accordance with their
terms and survive the execution of this Agreement:
-12-
Xx. Xxxxxx X. Xxxxxx
January 22, 1996
-3-
(a) Initial Option Agreement;
(b) Stock Option Agreement Under 1991 Plan dated December 5, 1995,
between you and Xxxx; and
(c) Severance Agreement.
6. Entire Agreement. This Agreement supersedes all agreements, either
oral or written, existing prior to this date between you and Xxxx.
You agree that you have not relied on any representation, warranty,
or promise not explicitly stated in this Agreement, that no oral
statement has been made to you that in any way tends to modify or
waive any of the terms and conditions of this Agreement, and that
this Agreement constitutes the final, complete, and exclusive written
expression of all of those terms. This Agreement may be amended,
waived, or modified only in a writing signed by the parties.
7. Notices. Every notice hereunder shall be in writing to the address
set forth in this section and shall be effective upon receipt.
If to Xxxx: Xxx Xxxx Xxxxx
Xxxx, Xx. 00000
Att'n: Chairman, Management Development & Compensation
Committee, with copy to General Counsel & Secretary
If to you: 0000 Xxxxx Xxxxx Xxxxx
Xxxx, XX 00000
8. Governing Law. This Agreement shall be construed by and governed in
accordance with the internal laws of the Commonwealth of Pennsylvania
(it being agreed by the parties that Pennsylvania choice-of-law rules
shall be deemed to have selected Pennsylvania law as governing).
9. Disputes. Any dispute hereunder, or otherwise arising between the
parties, shall be resolved first by non-binding mediation, then by
binding arbitration, both to be in accordance with the rules of the
CPR Institute for Dispute Resolution, and to be held in New York
City. In no event may an arbitrator award consequential, incidental,
or punitive damages.
10. Signatures. This Agreement may be executed in counterparts. A
party executing and FAXing a copy of the Agreement to the other party
shall be deemed to have delivered a legally binding instrument to the
other party.
-13-
Xx. Xxxxxx X. Xxxxxx
January 22, 1996
-4-
11. Unenforceability. In the event that a provision of this Agreement is
held to be unenforceable or invalid by a court of competent
jurisdiction, the validity and enforceability of the remaining
provisions shall not be affected thereby, and the parties shall
negotiate an equitable adjustment to this Agreement with a view
toward effecting the purposes hereof.
12. Assignment. You acknowledge that your services are unique and
personal. Accordingly, you may not assign your rights or delegate
your duties under this Agreement. Xxxx"s rights and obligations
under this Agreement shall inure to the benefit of, and shall be
binding upon, Xxxx"s successors and assigns.
13. Headings. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe its provisions.
If you are in agreement with the foregoing, please return a signed copy
of this letter to the Office of General Counsel & Secretary of Xxxx.
Very truly yours,
XXXX INDUSTRIES, INC.
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Chairman,
Management Development &
Compensation Committee
ACCEPTED AND AGREED:
__________________________________
Xxxxxx X. Xxxxxx
Date:_____________________________
-14-
