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EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AGREEMENT, originally dated as of June 16, 1986, and amended
and restated as of March 15, 1996, between Xxxx Group, Inc., a Delaware
corporation (the "Company"), and D. Xxxxxx Xxxxxxxxxx (the "Employee").
1. Employment. The Company hereby employs the Employee and the
Employee hereby accepts employment upon the terms and conditions hereinafter set
forth.
2. Term. a) The Agreement shall commence and take effect on
the date hereof, and end on the date this Agreement is terminated by either the
Company or the Employee as hereinafter provided in this paragraph 2.
(b) The Company may at its election terminate the obligations
of the Company under this Agreement as follows:
(1) If the Employee becomes ill or is injured so that
he is unable to perform the services required of him hereunder and such
inability to perform continues for a period in excess of 180 consecutive days
and such inability is continuing at the time of such notice, then the Company
may terminate its obligations hereunder on 30 days notice provided that the
Employee shall receive disability payments under the Company's group disability
benefits during the period commencing on the date of such termination and ending
on the date such disability ends or age 65, whichever first occurs.
(2) For just cause upon notice of such termination to
the Employee. Termination of the Employee's
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employment by the Company shall constitute a termination "for just cause" only
if such termination is for one or more of the following reasons: (i) the failure
of the Employee to render services to the Company in accordance with his
obligations under this Agreement, which failure amounts to an extended and gross
neglect of his duties to the Company; (ii) the continued use of non-prescription
drugs and alcohol by the Employee to an extent that he is unable to fulfill his
duties under this Agreement; and (iii) the commission by the Employee of an act
of fraud or embezzlement against the Company or the Employee's having been
convicted of a felony involving moral turpitude.
(3) Without cause upon notice to the Employee provided that,
for a period of two years after such termination, the Company shall (i) pay to
Employee an amount each month equal to the Salary which Employee is being paid
each month at the date of the notice of termination and (ii) provide for
Employee the same fringe benefits, consisting of medical, dental, life and
disability insurance, which were provided to Employee at the date of the notice
of termination. If the Company may elect, in accordance with paragraph 2(b)(1)
hereof, to terminate this Agreement then such election shall be deemed to have
been made under paragraph 2(b)(1) and not in accordance with this paragraph
2(b)(3). The Company shall be deemed to have elected to terminate this Agreement
in accordance with this paragraph 2(b)(3) if the title or duties of the Employee
are, without the written approval of the Employee, changed from that of Chief
Executive Officer or the Employee is, without the written
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approval of the Employee, required to reside other than in the area of
Lancaster, Pennsylvania in order to perform his duties for the Company; provided
that the Employee, within 30 days after the occurrence of such an event, shall
notify the Company that the Company is so deemed to have elected to terminate
this Agreement. The Employee shall have no further obligation under this
Agreement from and after such termination except as provided in paragraphs 6, 7
and 8 hereof.
(c) Employee may terminate his obligations under Paragraphs 4
and 5 hereof upon 90 days prior notice thereof to the Company and, from and
after the delivery of such notice, the Company shall have no further obligations
under this Agreement unless it shall elect by notice to the Employee, to
continue to pay the Employee as herein provided for the 90-day period commencing
with the date of delivery of the notice and in such event the Employee shall
continue to perform his obligations under paragraphs 4 and 5 during such period.
(d) The obligations of the Company under this Employment
Agreement shall terminate simultaneously with the occurrence of any of the
following events and upon such termination the Company shall pay to Employee, by
delivery of a certified or bank check, in an amount determined by multiplying by
twenty four the Salary then being paid to Employee in accordance with paragraph
3(a) and provide to Employee for 24 months the fringe benefits described in
paragraph 2(b)(3):
(i) 50% or more of the shares of the Company's Common
Stock is acquired, directly or indirectly, by an
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individual, partnership, corporation, trust or unincorporated
organization (collectively "Person") or by Persons acting with a common
design, either formally or informally;
(ii) The Company merges with or into another Person
and is not the survivor of such merger or because of such merger the
Company becomes a wholly-owned subsidiary or the Company sells all of
its fixed assets to another Person or Persons; or
(iii) The majority of the Board of Directors of the
Company consists of directors who were not selected by or nominated
with the approval of a majority of the directors of the Company in
office on the date hereof (the "Present Directors") or who were not
selected by or nominated with the approval of a majority of directors
selected or nominated by a majority of the Present Directors.
The Employee shall have no further obligation under this Employment Agreement
from and after such termination except as provided in paragraphs 6, 7 and 8
hereof.
3. Compensation. The Company shall:
(a) pay the Employee a salary ("Salary") at the rate of
$25,000.00 per month during each month of the term hereof, payable in equal
semi-monthly installments;
(b) pay the Employee a bonus each fiscal year during the term
hereof in an amount, if any, determined by the Compensation and Stock Option
Committee of the Board of Directors
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or in accordance with any incentive compensation plan approved by such
Committee;
(c) pay to the Employee the sum of $448,000, which consists of
(i) $230,000, which is the loss to be sustained by the Employee upon the sale of
his residence in Los Angeles and which sale is required because of the
relocation of the Principal Executive Office of the Company to Lancaster,
Pennsylvania, and (ii) $218,000, which is the gross up for federal and state
income taxes required to be paid to the Employee as a result of the payment of
$230,000;
(d) pay to the Employee the amount, if any, by which the
purchase price for his residence in Lancaster, Pennsylvania exceeds the sale
price, with such amount grossed up for federal and state income taxes, if such
sale occurs before September 30, 1997 and after this Agreement is terminated in
accordance with paragraphs 2(b)(1) or (3) or 2(d);
(e) provide the Employee with a car allowance of $870 each
month; and
(f) reimburse the Employee not in excess of $3,580 annually to
pay the premium on a life insurance policy in the amount of $1 million on the
life of the Employee, which policy is owned by the Employee.
In addition to the foregoing, the Employee shall be eligible
for and participate in such fringe benefits as are generally available to
executives of the Company and shall be entitled to receive such increases in
Salary as the Company may from time to time deem appropriate.
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4. Duties. The Employee shall be the Chief Executive Officer
of the Company, and hereby promises to perform and discharge well and faithfully
the duties which may be assigned to him from time to time by the Company in
connection with the conduct of its business. Election or appointment as a
director or officer of the Company or any subsidiary thereof during the term of
this Agreement will not be a basis for the Employee to receive additional
compensation.
5. Extent of Services. The Employee shall devote his entire
time, attention and energies to the business of the Company and shall not during
the term of this Agreement be engaged in any other business activity whether or
not such business activity is pursued for gain, profit or other pecuniary
advantage; but this shall not be construed as preventing the Employee from
investing his personal assets in businesses which do not compete with the
Company in such form or manner as will not require any services on the part of
the Employee in the operation of the affairs of the companies in which such
investments are made and in which his participation is solely that of an
investor, and except that the Employee may purchase securities in any
corporation whose securities are regularly traded provided that such purchase
shall not result in his owning beneficially at any time equity securities of any
corporation engaged in a business competitive with that of the Company.
6. Disclosure of Information. The Employee recognizes and
acknowledges that the Company's trade secrets, know-how and proprietary
processes as they may exist from time to
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time are valuable, special and unique assets of the Company's business, access
to and knowledge of which are essential to the performance of the Employee's
duties hereunder. Except when duly authorized by the Company, the Employee will
not, during or after the term of his employment by the Company, in whole or in
part, disclose such secrets, know-how or processes to any person, firm,
corporation, association or other entity, nor shall the Employee make use of any
such property for his own purposes or for the benefit of any person, firm,
corporation or other entity (except the Company) under any circumstances during
or after the term of his employment, provided that after the term of his
employment these restrictions shall not apply to such secrets, know-how and
processes which are then in the public domain (provided that the Employee was
not responsible, directly or indirectly, for such secrets, know-how or processes
entering the public domain without the Company's consent).
7. Inventions. The Employee hereby sells, transfers and
assigns to the Company or to any person or entity designated by the Company all
of the entire right, title and interest of the Employee in and to all
inventions, ideas, disclosures and improvements, whether patented or unpatented,
and copyrightable material, made or conceived by the Employee, solely or
jointly, during the term hereof which relate to methods, apparatus, designs,
products, processes or devices, sold, leased, used or under construction or
development by the Company or any subsidiary, or which otherwise relate to or
pertain to the business, functions or operations of the Company or any
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subsidiary, or which arise from the efforts of the Employee during the course of
his employment for the Company. The Employee shall communicate promptly and
disclose to the Company, in such form as the Company requests, all information,
details and data pertaining to the aforementioned inventions, ideas, disclosures
and improvements; and the Employee shall execute and deliver to the Company such
formal transfers and assignments as may be required of the Employee to permit
the Company or any person or entity designated by the Company to file and
prosecute the patent applications and, as to copyrightable material, to obtain
copyright thereof. Any invention relating to the business of the Company or any
subsidiary and disclosed by the Employee within one (1) year following the
termination of this Agreement shall be deemed to fall within the provisions of
this paragraph unless proved to have been first conceived and made following
such termination.
8. Injunctive Relief. If there is a breach or threatened
breach of the provisions of paragraphs 6 or 7 of this Agreement, the Company
shall be entitled to an injunction restraining the Employee from such breach.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies for such breach or threatened breach.
9. Insurance. The Company may, at its election and for its
benefit, insure the Employee against accidental loss or death and the Employee
shall submit to such physical examinations and supply such information as may be
required in connection therewith.
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10. Notices. Any notice required or permitted to be given
under this Agreement shall be sufficient if in writing and if sent by registered
mail to his residence in the case of the Employee or to the Company at 000 Xxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Secretary, or to such
officer or address as the Company shall notify Employee.
11. Waiver of Breach. A waiver by the Company or Employee of a
breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by the other party.
12. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware.
13. Entire Agreement. This instrument contains the entire
agreement of the parties. It may be changed only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day first hereinabove written.
XXXX GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President, Employee Relations
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/s/ D. Xxxxxx Xxxxxxxxxx
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D. XXXXXX XXXXXXXXXX
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AMENDMENT TO
EMPLOYMENT AGREEMENT
WHEREAS, Xxxx Group, Inc. (the "Company") and D. Xxxxxx
Xxxxxxxxxx (the "Employee") have entered into an Employment Agreement, dated as
of June 16, 1986 (the "Employment Agreement"); and
WHEREAS, pursuant to Paragraph 13 of the Employment Agreement,
the Company and the Employee have agreed to amend the Employment Agreement.
NOW, THEREFORE, as of the date written below, the Employment
Agreement is amended as follows:
1. The third sentence of Paragraph 2(b)(3) shall be deleted and replaced with:
Notwithstanding anything in this Paragraph 2(b)(3) to the
contrary, the Salary to be paid to Employee upon termination of
employment pursuant hereto shall not be reduced by any amounts paid to
Employee on account of any compensation received by Employee from other
employment. Furthermore, the Company shall not be obligated to provide
any such fringe benefit after Employee shall receive such fringe
benefit at least as favorable to Employee from another employer.
IN WITNESS WHEREOF, the parties have executed this Amendment
on the 2nd day of January, 1996.
XXXX GROUP, INC.
By: /s/ D. Xxxxxx Xxxxxxxxxx
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President
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