Exhibit 10.10
NORCROSS SAFETY PRODUCTS L.L.C.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), dated as of January 1,
2002, is entered into by and between Norcross Safety Products L.L.C., a Delaware
limited liability company (the "COMPANY"), and Xxxxxx X. Xxxxxxxx ("EXECUTIVE").
Certain capitalized terms used but not otherwise defined herein are defined in
SECTION 7.
In the course of Executive's employment with the Company, Executive
shall become familiar with the Company's near-permanent relationships with its
suppliers, customers and employees and Confidential Information (as defined in
SECTION 6 below), and Executive's services shall be of special, unique and
extraordinary value to the Company.
The Company and Executive desire to enter into an agreement (i)
relating to Executive's employment by the Company, (ii) defining the relative
rights of the Company and Executive with respect to Confidential Information
owned by the Company to which Executive may have access or may contribute as a
result of Executive's employment with the Company, and (iii) setting forth the
obligation of Executive to refrain from competing with the Company during his
employment with the Company and for a period of time thereafter as provided
herein.
The parties hereto, in exchange for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound, hereby agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) The Company shall employ Executive, and Executive hereby accepts
employment with the Company, as Chief Executive Officer and President of the
Company, pursuant to the terms and conditions of this Agreement. Executive shall
report to the Board of Managers of NSP Holdings L.L.C. (the "Board").
(b) Executive shall devote his best efforts to the interests of the
Company and, to the extent requested, its Affiliates, which interests may change
from time to time, and shall devote all of his professional time and attention
to the business and affairs of the Company and such Affiliates; PROVIDED that
nothing herein shall prevent Executive, with the prior approval of the Board,
from serving as a director or trustee of other corporations or businesses which
are not in competition with the Company or its Affiliates. Notwithstanding this
SECTION 1(b) or any other provision of this Agreement to the contrary, Executive
may commence seeking other employment if Company, at least 90 days before the
date referred to in clause (i) of the first sentence of SECTION 2(a), shall not
have offered to Executive in writing to continue to employ Executive for at
least two years, on terms no less favorable to Executive than those existing at
such time.
(c) Executive shall perform such duties and functions commensurate
with his position as may be reasonably assigned or delegated to him from time to
time by either the President or the Board. Executive acknowledges that such
duties and functions may or may not involve performance of services for or on
behalf of Affiliates of the Company.
2. TERM AND TERMINATION.
(a) TERM. The "TERM" of Executive's employment is from the date
hereof until the "TERMINATION DATE", which is defined as the earlier of (i) the
fifth anniversary of the date hereof or (ii) the date of termination of
Executive's employment pursuant to any one or more of SECTIONS 2(b), 2(c), 2(d)
or 2(e) of this Agreement. Executive is an at-will employee of the Company, and
his employment may be terminated by Executive, in his sole and arbitrary
discretion, at any time with or without Good Reason, or by the Company, in the
Company's sole and arbitrary discretion, at any time with or without Cause, by
delivery of a written termination notice to the other party.
(b) DEATH. If Executive dies during the Term, the Termination Date
shall be the date of his death.
(c) DISABILITY. If Executive becomes Disabled during the Term, the
Termination Date shall be the date as of which such Disability is determined.
Subject to applicable law, "DISABILITY" or "DISABLED" means such physical,
mental or psychological condition or other impairment that prevents Executive
from effectively performing the duties of his employment for more than ninety
(90) calendar days in any six (6) consecutive months commencing on the initial
date of such condition or impairment. In connection with any Disability (or
possible Disability):
(i) Executive (and Executive's spouse or whoever else is
acting on his behalf) shall cooperate with any physicians engaged or
requested to be engaged by the Company to examine Executive to determine
whether or not Executive is Disabled, and each of Executive and the Company
irrevocably consents to disclosure to each of them by any such physicians
of all matters relating to such examinations.
(ii) The determination of Disability shall be by agreement of
the Company and Executive, or if Executive's condition is such that he is
unable to participate in such determination, then by agreement of the
Company and Executive's spouse or whoever else is then acting on his
behalf, and if the parties involved in such determination are unable to
reach agreement within ten (10) days of a request by either party, then the
issue shall be decided by a physician chosen by the Company and reasonably
acceptable to Executive (or Executive's spouse or whoever else is then
acting on his behalf). The Company will pay all expenses incurred in the
determination of whether Executive is Disabled.
(d) TERMINATION BY EXECUTIVE. If Executive terminates his employment,
with or without Good Reason, the Termination Date shall be the date indicated on
the written termination notice given by Executive to the Company, which may not
be more than thirty (30) days nor less than
2
fourteen (14) days from its receipt by the Company; PROVIDED THAT upon receipt
of Executive's termination notice, the Company may, in its sole discretion,
request that Executive cease his employment activities prior to the date
referenced in such notice, and Executive shall promptly comply with such
request, it being understood that such request will not change the Termination
Date specified in this SECTION 2(d) or affect the characterization of the
termination of Executive's employment.
(e) TERMINATION BY THE COMPANY. If the Company terminates the
employment of Executive, with or without Cause, the Termination Date shall be
the date on which the Company's termination notice is given to Executive, or
such later date indicated on such termination notice, which may not be more than
thirty (30) days from its receipt by Executive.
(f) REVERSAL OF DETERMINATION. If Executive's employment is
terminated by the Company with Cause or by Executive with Good Reason, and it is
thereafter judicially determined that Cause or Good Reason as appropriate for
such termination did not exist at the time of such termination, then Executive's
employment shall be deemed to have been terminated without Cause or Good Reason
as appropriate as of the Termination Date. If matters constituting Cause or Good
Reason as appropriate become known to the Company or to Executive within 90
business days after Executive's employment is terminated, then either party may,
by delivery of written notice to the other party treat such termination as being
with Cause or Good Reason as appropriate.
(g) DEFINITION OF CAUSE. "CAUSE" for termination of Executive's
employment by the Company means Executive's
(i) embezzlement or misappropriation of funds;
(ii) conviction of a felony involving moral turpitude;
(iii) commission of a material act of dishonesty, fraud, or
deceit;
(iv) breach of any material provisions of this Agreement or
other agreement with the Company, NSP Holdings L.L.C., or any Subsidiary, to
which he is a party;
(v) habitual or willful neglect of his duties;
(vi) breach of fiduciary duty to the Company, NSP Holdings
L.L.C., or any Subsidiary, involving personal profit; or
(vii) material violation of any other duty to the Company, NSP
Holdings L.L.C., or any Subsidiary, or its members imposed by its managers or
by law.
(h) DEFINITION OF GOOD REASON. "GOOD REASON" for termination by
Executive of Executive's employment means:
3
(i) a material breach by the Company of its obligations under
this Agreement which is not cured (if curable) within twenty (20) days
after written notice by Executive to the Company;
(ii) the Company's requiring Executive to move his principal
place of employment by more than 25 miles, other than for reasonable
business travel, if such move increases Executive's commute from his
primary residence, without Executive's written consent thereto; PROVIDED
THAT Executive must notify the Company in writing of his intent to
terminate his employment pursuant to this SECTION 2(h)(ii) prior to the
sixtieth day after the earlier of (x) the date that the Company notifies
Executive in writing of its intent to relocate Executive and (y) the date
that such relocation occurs;
(iii) the failure of any successor to the Company to assume this
Agreement as set forth in SECTION 9(i); or
(iv) the occurrence of a Change of Control; PROVIDED THAT
Executive must notify the Company in writing of his intent to terminate his
employment pursuant to this SECTION 2(h)(iv) prior to the sixtieth day
after the date of the Change of Control.
3. COMPENSATION.
(a) Executive's compensation for his services hereunder shall consist
of (i) Base Salary, plus (ii) Bonus, if any, plus (iii) Benefits.
(b) "BASE SALARY" shall be paid by the Company to Executive at an
annual rate of $386,925 (subject to increase from time to time to reflect
cost-of-living increases and as merited to reflect Executive's performance on
behalf of the Company and its Subsidiaries), payable in arrears in equal
bi-weekly installments. Under no circumstances may the Base Salary be decreased
during the Term.
(c) "BONUS" if any, shall be targeted at 90% of Base Salary, based
on targeted EBITDA and budgeted cash flow or other such financial criteria as
may be determined by the Board and agreed to by Executive. All Bonus due
hereunder shall be payable March 31 of the following year. The Bonus payable
hereunder shall be in addition to any bonus payable to Executive pursuant to
that certain letter agreement, dated as of the date hereof, by and between NSP
Holdings L.L.C. and the Executive (as amended from time to time, the "Letter
Agreement").
(d) "BENEFITS" consist of whatever, if any, health, hospitalization,
sick pay, life insurance, disability insurance, profit sharing, pension, 401(k),
and deferred compensation plans and programs that the Company may have in effect
from time to time for its employees who are not members of a collective
bargaining unit, all of which Executive shall be entitled to participate in on a
basis commensurate with his position. Executive shall also be entitled to four
(4) calendar weeks' paid vacation each year, in addition to regularly scheduled
holidays. The Company may initiate, change and discontinue any such plans and
programs at any time; PROVIDED THAT no such change shall
4
be effective as to Executive unless it is also effective as to the other senior
executives of the Company. If any of such plans or programs require
contributions by employees, Executive shall pay the contributions required by
his participation at a rate no greater than that applicable to any senior
executive of the Company. Company shall pay Executive a monthly automobile
allowance of $700.
4. TERMINATION PROVISIONS.
(a) If the Company terminates Executive's employment with Cause or if
Executive terminates his employment without Good Reason, then Executive shall be
entitled to receive:
(i) Base Salary and Benefits for the period ending on the
Termination Date; and
(ii) any unpaid Bonus for any calendar year ending prior to the
year in which the Termination Date occurs.
(b) If the Company terminates Executive's employment without Cause
(which shall include, without limitation, Company's not offering Executive
continued employment with the Company in accordance with the second sentence of
SECTION 1(b)), if Executive terminates his employment with Good Reason, or if
Executive's employment terminates by reason of his death or Disability, then
Executive shall be entitled to receive the following, except that (iv) shall not
apply in the case of Executive's death:
(i) Base Salary and Benefits for the period ending on the
Termination Date;
(ii) any unpaid Bonus for any calendar year ending prior to the
year in which the Termination Date occurs;
(iii) any Bonus for the calendar year in which the Termination
Date occurs, pro rated based on the portion of Base Salary paid to
Executive by the Company in such year; and
(iv) IF, AND ONLY IF, Executive (or his guardian or personal
representative, as the case may be), within 30 days after the
Termination Date, signs and delivers to the Company a complete general
release of claims for facts and circumstances existing before the date
of such release in the form of Exhibit A, Base Salary for the period
commencing on the Termination Date and ending two years thereafter,
together with any other Benefits as may be provided under the terms of
any applicable written plan, program or arrangement of the Company
applicable to senior executives of the Company (including automobile
allowance). If Executive does not comply with the terms of this
SECTION 4(b)(iv) within 30 days after the Termination Date, the
Company shall not be responsible for any further payments to
Executive.
5
Notwithstanding the foregoing, in the event that the Executive's
employment has terminated because the Company has not offered
Executive continued employment with the Company in accordance with the
second sentence of SECTION 1(b), any payments or benefits that
Executive would be entitled to receive from the Company in the second
year of the severance period shall be reduced by the amounts of any
payments or benefits (but the reduction for benefits shall only be for
benefits of a substantially similar nature) that Executive shall be
entitled to receive during and with respect to the second year of the
severance period from other employment (including self-employment).
Executive shall promptly report to the Company all payments or
benefits from other employment (including self-employment) Executive
is entitled to receive during and with respect to the second year of
such severance period.
(c) Any amounts owed by the Company to Executive pursuant to SECTION
4(b)(iv) shall be paid at such times and in such manner as if the termination
giving rise to such payments had not occurred (with the Company retaining the
right to prepay all or any portion of such amount at any time in its sole
discretion); provided that in the event that Executive's employment has been
terminated for the reason described in Section 2(h)(iv), amounts owed to
Executive shall be paid in a single lump sum within ten days of the effective
date of Executive's resignation, discounted to present value at a 7% annual
rate.
(d) The Company's obligation to make any payments or Benefits
available to Executive pursuant to this SECTION 4 shall be conditioned upon
Executive's continued and continuing compliance with the terms and conditions of
this Agreement (including, without limitation, SECTION 6 hereof) and shall
constitute Company's sole obligation, and the sole obligation of Company's
Affiliates, to Executive (or any Person making any claim through Executive or
regarding his employment by Company or any Affiliate) in respect of Company's
termination of Executive's employment hereunder or any breach by Company hereof
respecting which Executive terminates his employment hereunder.
(e) Except as otherwise specified herein, if Executive's employment
terminates on any date other than the last day of a month, Executive's
compensation for that month shall be calculated on the basis of a fraction, the
numerator of which shall be the number of days during that month that Executive
shall have been in the Company's employ and the denominator of which shall be
the number of days in that month.
(f) In the event that Executive's employment is terminated for Cause,
the Company may offset any amounts Executive owes it or its Affiliates pursuant
to any written agreement, note or other instrument relating to indebtedness for
borrowed money to which Executive is a party, or pursuant to any other liability
or obligation by which Executive is bound, in each case which is due or becomes
due within ninety days after Executive is to be paid such amounts hereunder
against any amounts it owes Executive hereunder, upon providing written notice
to Executive of such offset; PROVIDED that, whether or not Executive's
employment has been terminated for Cause, the Company may offset any amounts
Executive owes, whether or not then due and payable, the
6
Company or its Affiliates pursuant to any written agreement, note or other
instrument relating to indebtedness for borrowed money to which Executive is a
party against up to 53.59% of any bonus it agrees to pay Executive under the
Letter Agreement.
5. EXPENSES. The Company shall reimburse Executive for all reasonable
expenses incurred in the performance of his duties in accordance with the
expense reimbursement policy of the Company with respect to senior executives of
the Company in effect at the time.
6. NONCOMPETITION, NONSOLICITATION, CONFIDENTIALITY.
As a material inducement to the Company to enter into this Agreement
and in consideration of the payment by the Company of the compensation detailed
herein to Executive:
(a) During the period (the "NONCOMPETE PERIOD") beginning on the date
hereof and ending 18 months after the Termination Date, Executive shall not,
without the prior written consent of the Company (which consent may be granted
or withheld in the Company's sole discretion), directly or indirectly,
Participate in any line of business in which the Company is actively engaged or
any line of business competitive with the Company anywhere in the United States
and any other country in which the Company does business as of the Termination
Date (the "COMPETITIVE ACTIVITIES"). For purposes of this Agreement, the term
"PARTICIPATE" includes any direct or indirect interest in, or providing any
direct or indirect assistance (whether financial, advisory or otherwise) to, any
enterprise (or any affiliate thereof), whether as an officer, director,
employee, partner, member, sole proprietor, agent, representative, independent
contractor, consultant, creditor, stockholders, unitholder, owner or otherwise;
PROVIDED THAT the term "Participate" shall not include beneficial ownership of
less than 2% of a class of securities traded on a national securities exchange
or the NASDAQ Stock Market.
(b) During the Noncompete Period, Executive (i) except with respect
to Executive's personal secretary and Xxxxx X. Xxxxxx, Xx., shall not, and shall
not attempt to, directly or indirectly contact, approach or solicit for the
purpose of offering employment to or hiring or retaining, or arrange to have any
other Person hire or retain, or actually hire or retain, whether as an employee,
consultant, agent, independent contractor or otherwise, any Person employed or
retained by NSP Holdings L.L.C., Company, or any Subsidiary as an employee,
consultant or independent contractor during the Noncompete Period and (ii) shall
not, and shall not attempt to, call-on, solicit, service, advise, encourage or
induce any customer, supplier, or other business relation of NSP Holdings
L.L.C., Company, or any Subsidiary to cease doing business, or reduce its
business, with NSP Holdings L.L.C., Company, or any Subsidiary or to engage in
any business relationship which might materially harm NSP Holdings L.L.C.,
Company, or any Subsidiary.
(c) Executive acknowledges that certain of the information,
observations and data relating to the Company and its Affiliates, or their
business, products or services, which he possesses or has obtained knowledge of
or will possess or obtain knowledge of as an employee, officer, director or
equityholder of the Company is and will be the confidential and proprietary
property of the Company and its Affiliates ("CONFIDENTIAL INFORMATION").
Executive agrees that he shall not,
7
directly or indirectly, use for his own purposes or use for or disclose to any
third party any of such Confidential Information without the prior written
consent of the Company, unless and to the extent that the aforementioned matters
(i) become generally known to and available for use by the public other than as
a result of Executive's acts or failures to act, or (ii) Executive is required
by order of a court of competent jurisdiction (by subpoena or similar process)
to disclose any Confidential Information (provided that in such case, Executive
shall promptly inform the Company of such order, shall cooperate with the
Company at the Company's expense in attempting to obtain a protective order or
to otherwise restrict such disclosure, and shall only disclose Confidential
Information to the minimum extent necessary to comply with any such court
order).
(d) The parties hereto acknowledge and agree that the Company will
suffer irreparable harm from a breach by Executive of any of the covenants or
agreements contained in this SECTION 6. In the event of an alleged or threatened
breach by Executive of any of the provisions of this SECTION 6, the Company or
other appropriate Person may, in addition to all other rights and remedies
existing in its or their favor, apply to any court of competent jurisdiction for
specific performance and/or injunctive or other equitable relief in order to
enforce or prevent any violations of the provisions hereof. Executive
acknowledges and agrees that the restrictions contained in this SECTION 6 are
reasonable.
(e) If, at the time enforcement of any of the provisions of this
SECTION 6 is sought, a court holds that the restrictions stated herein are
unreasonable under the circumstances then existing, the parties hereto agree
that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or geographical
area. Executive agrees that the covenants made in this SECTION 6 shall be
construed as an agreement independent of any other provision of this Agreement
and shall survive any order of a court of competent jurisdiction terminating any
other provision of this Agreement.
(f) Executive hereby agrees and acknowledges (i) that the Company and
its Affiliates have protectable interests in the information, data, and plans,
both technical and business in nature, which are treated as confidential, as
well as the goodwill and specialized knowledge acquired by Executive during the
course of Executive's employment with the Company;(ii) that the provisions of
this SECTION 6 are in consideration of (A) employment with the Company, (B)
access to and use of Confidential Information, including but not limited to
information, data, and plans, both technical and business in nature, such as
customer lists and records, sales records and marketing plans, research and
technical reports and records, formulas, processes, programs, inventions, patent
applications, designs and drawings, instructions and training manuals, business
and financial information, salary information, contracts and other legal
documents, and correspondence to which the Company has been a party, (C) access
to and Executive's development on behalf of the Company of near-permanent
relationships with the Company's customers, and (D) additional good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged; (iii)
that the restrictions contained in this SECTION 6 do not preclude Executive from
earning a livelihood, nor do they unreasonably impose limitations on Executive's
ability to earn a living, and that the potential harm to the Company or its
Affiliates of the non-enforcement of this SECTION 6 outweighs any harm to
Executive of their enforcement by injunction or otherwise; and (iv) that
Executive has carefully
8
reviewed this Agreement and that he has consulted with independent legal counsel
regarding his rights and obligations under this Agreement (or, after carefully
reviewing this Agreement, was given the opportunity to, but has freely decided
not to, consult with independent legal counsel), has given careful consideration
to the restraints imposed upon Executive by this Agreement, fully understands
the terms and conditions contained herein and is in full accord as to their
necessity for the reasonable and proper protection of the Company's
near-permanent customer relationships and employee relationships and
Confidential Information and those of its Affiliates, and Executive intends for
such terms to be binding on and enforceable against him, and that each and every
restraint imposed by this Agreement is reasonable with respect to subject
matter, time period and geographical area.
(g) Executive agrees that the provisions of this SECTION 6 shall
inure to the benefit of and be enforceable by any Person with whom or into which
the Company shall merge or consolidate, regardless whether the Company shall be
the survivor of such transaction, or to any Person acquiring all or
substantially all of the Company's assets or business.
7. DEFINITIONS. The following definitions shall be applied to the
capitalized terms used in this Agreement for all purposes, unless otherwise
clearly indicated:
"AFFILIATES" of any Person means any Person that directly or
indirectly controls, is controlled by, or is under common control with the
Person in question.
"BUSINESS" means the manufacturing and/or marketing of personal
protection and safety equipment products primarily intended for use in the
workplace, including, without limitation, respiratory equipment, hand
protection, hearing protection, eye, hand, face and foot protection, industrial
first aid, fall protection, high voltage lineman equipment, eye wash, and
dermatological and single-use applicators for surgical protection.
"CHANGE OF CONTROL" shall mean any transaction (including, without
limitation, a merger, consolidation, sale of stock or sale of assets, but
excluding any assignment as security for indebtedness) after which Canadian
Imperial Bank of Commerce and its Affiliates and Xxxx Xxxxxxx Life Insurance
Company and its Affiliates or any of them shall not have the power to elect a
majority of the members of the Board or the governing body of Company.
"COMPANY" shall have the meaning given to such term in the preamble
hereto, any successor to its business and/or assets which assumes this Agreement
by operation of law or otherwise, and their respective Subsidiaries.
"LLC AGREEMENT" shall mean the Amended and Restated Limited Liability
Company Agreement of Norcross Safety Products L.L.C. dated as of February 17,
2000, as amended and modified from time to time.
9
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the limited liability company, partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control the managing member or general partner of
such limited liability company, partnership, association or other business
entity.
8. NOTICES. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, mailed by first class mail (postage
prepaid and return receipt requested) or sent by reputable overnight courier
service (charges prepaid) to the recipient at the address below indicated:
TO THE COMPANY
Norcross Safety Products L.L.C.
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx X.Xxxxxx, Xx.
Telecopier: (000) 000-0000
WITH COPIES TO:
CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Telecopier: (000) 000-0000
10
TO EXECUTIVE
Xxxxxx X. Xxxxxxxx
00000 Xxxx Xxx Xxxx
Xxxx Xxxxx, XX 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
9. GENERAL PROVISIONS.
(a) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) COMPLETE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(c) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(d) SUCCESSORS AND ASSIGNS. Unless otherwise expressly provided, this
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective successors and assigns.
(e) GOVERNING LAW. The laws of the state of Illinois shall govern all
issues and questions concerning the employment of Executive, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
All other issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules
hereto shall be governed by, and construed in accordance with, the laws of the
State of Delaware, without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
11
(f) [Intentionally deleted].
(g) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and
Executive.
(h) THIRD-PARTY BENEFICIARY. Except as expressly provided, there are
no beneficiaries to this Agreement other than the signatories hereto.
(i) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which the Company's chief executive office is located, the time
period shall be automatically extended to the business day immediately following
such Saturday, Sunday or legal holiday.
(j) ASSIGNMENT. Nothing in this Agreement shall preclude the Company
from consolidating or merging into or with, or transferring all or substantially
all of its assets to, another corporation; PROVIDED THAT the Company will
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Company to assume this Agreement.
(k) WITHHOLDING. All amounts payable to Executive as compensation
hereunder shall be subject to customary withholding by the Company.
(l) NO STRICT CONSTRUCTION. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
(m) SURVIVAL. SECTION 4, SECTION 6, Section 9(n), and the rest of
SECTION 9 with respect to SECTIONS 4 and 6 shall survive and continue in full
force in accordance with their terms notwithstanding any termination of the
Term.
(n) NON-DISPARAGEMENT. The Executive shall not make or publish any
negative statements or communications about NSP Holdings L.L.C., Company, any
Subsidiary or any officer, manager, member or employee of NSP Holdings L.L.C.,
Company, or any Subsidiary. The
12
Company shall not, and shall cause NSP Holdings L.L.C. and its Subsidiaries not
to, make or publish any negative statements or communications about the
Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
NORCROSS SAFETY PRODUCTS L.L.C.
By: /s/ Xxxxxx Xxxx
-----------------------
Xxxxxx Xxxx, a manager
/s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
13
EXHIBIT A
For consideration received (including payments, promises, and
agreements), Xxxxx X. Xxxxx, Xx. (the "Executive") on behalf of himself and on
behalf of any dependents, spouse, heirs, successors and assigns, does hereby
generally release, NSP Holdings L.L.C., Norcross Safety Products, L.L.C., and
each of their respective predecessors, successors, assignees, parent companies,
members, subsidiaries, affiliates, officers, directors, managers, partners,
employees, agents and attorneys, past and present (collectively, the "Released
Persons"), from liability on or for any and all charges, claims, controversies,
actions, causes of action, cross-claims, counterclaims, demands, debts, duties,
sanctions, fines, compensatory damages, liquidated damages, punitive or
exemplary damages, other damages, claims for costs, attorney's fees, sums of
money, suits, contracts, covenants, controversies, agreements, promises,
responsibilities, obligations and accounts of any nature whatsoever in law or in
equity, direct or indirect, both past and present and whether or not now or
heretofore known, suspected, or claimed against the Released Persons including,
but not limited to, any claim relating to, by reason of, or arising out of, any
acts, matters or omissions of the Released Persons, Executive's employment with
any of the Released Persons, events occurring during the course of such
employment, or the termination thereof, including but not limited to, any claim
of unlawful discrimination due to race, sex, religion, national origin,
handicap, ancestry, or age or other claim of unlawful employment discrimination;
any claim that any of the Released Persons violated any promise or agreement,
either express or implied, with Executive or that any of the Released Persons
has terminated or caused termination of Executive's employment for any unlawful
reason or in an unlawful fashion, including specifically without limiting the
generality of the foregoing, any claim under the Family and Medical Leave Act,
the Worker Adjustment Retraining and Notification Act, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1991, the Civil Rights Act of 1866, the Rehabilitation Act, the Labor
Management Relations Act, or the Equal Pay Act, each as amended from time to
time, or violated any other federal, state, or local law or regulation; or any
claim of emotional distress, defamation, wrongful termination, wages, severance
pay, bonus, sick leave, holiday pay, vacation pay, life insurance, health and
medical insurance, or any other fringe benefit. This release shall in no respect
have any force or effect with respect to (a) claims with respect to Executive's
equity interests in NSP Holdings L.L.C., to the extent that such claims relate
to facts and circumstances which form the basis of a claim brought by an
equityholder that is not an employee of NSP Holdings L.L.C. or its Subsidiaries;
(b) claims for rights of indemnification or exculpation under the constitutive
documents of NSP Holdings L.L.C. or any of its Subsidiaries, provided that
Executive (or his guardian or personal representative) certifies to his
knowledge of the existence of any such claims as of the date of such release;
(c) claims with respect to the repurchase price or repurchase procedure of any
of Executive's equity; or (d) the rights of the Executive arising from breaches
after the date hereof of any agreement to which the Executive and such Released
Person are a party.
14
