Exhibit 10.16
Employment Agreement
This Employment Agreement (the “Agreement”) is effective as of August 30,
2002 (the “Effective Date”), by and between Anchor Glass Container Corporation
(the “Company”), and Xxxxxx Xxxxxxxx (the “Executive”).
WHEREAS, the Company has employed the Executive as its Executive Vice
President-Sales & Asset Management and wishes to continue to employ the
Executive;
WHEREAS, the Company and the Executive have reached agreement concerning
the terms and conditions of his continued employment with the Company and wish
to formalize that agreement;
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions stated in this Agreement, the Company and the Executive hereby agree
as follows:
ARTICLE I
Employment Term
1.1 Employment. The Company hereby employs the Executive and the
Executive hereby accepts employment with the Company as Executive Vice
President-Sales & Asset Management. During the Employment Term (as hereinafter
defined), the Executive will have the title, status and duties of Executive
Vice President-Sales & Asset Management and will report directly to the
Company’s President and Chief Executive Officer (the “CEO”).
1.2 Term of Employment. The term of employment (“Employment Term”) under
this Agreement will commence on the Effective Date and will continue thereafter
until three (3) years from the Effective Date, unless sooner terminated by
either party in accordance with the provisions of this Agreement.
ARTICLE II
Duties
2.1 Duties. During the Employment Term, the Executive shall continue to
perform the duties assigned to him and in effect during the one hundred and
twenty (120) day period immediately preceding the Effective Date and shall
further perform the duties assigned to him by the Company’s CEO or the
Company’s Board of Directors (the “Board”), from time to time after
commencement of the Effective Date; provided that the Executive shall not be
assigned tasks inconsistent with those of Executive Vice President-Sales &
Asset Management. The Executive’s services shall be performed at the Company’s
Tampa, Florida offices.
(a) The Executive shall devote substantially all of his business
time and use his reasonable best efforts, talents, knowledge and
experience to serve as the Company’s Executive Vice President-Sales &
Asset Management and to promote the interests of the Company.
(b) The Executive will perform his duties diligently and competently
and shall act in conformity with the Company’s written and oral policies
and within the limits, budgets and business plans set by the Company.
The Executive will at all times during the Employment Term strictly
adhere to and obey all of the rules and regulations in effect from time
to time relating to the conduct of the executives of the Company. Except
as provided in Section 2.2 below, the Executive shall not engage in
consulting work or any trade or business for his own account or for or on
behalf of any other person, firm or company that competes, conflicts or
interferes with the performance of his duties hereunder in any material
way.
2.2 Other Activities. The Executive may devote reasonable time to
activities such as supervision of personal investments and activities involving
professional, charitable, educational, religious and similar types of
activities, speaking engagements and, upon prior written approval of the Board,
membership on other boards of directors, provided that such activities do not
interfere in any material way with the performance of his duties under this
Agreement. The time involved in such activities shall not be treated as
vacation time. The Executive shall be entitled to keep any amounts paid to him
in connection with such activities (e.g., director fees and honoraria).
ARTICLE III
Compensation and Benefits
During the Employment Term, the Company shall provide to the Executive,
and the Executive shall accept from the Company as full compensation for the
Executive’s services hereunder, compensation and benefits as follows:
3.1 Base Salary. The Company shall pay the Executive an annual base
salary of $250,080 per year (“Base Salary”). The Company’s CEO, the Board or
such committee of the Board as is responsible for setting the compensation of
senior executive officers (the “Committee”) shall review the Executive’s
performance and Base Salary at least annually in January of each year after
consultation with the Executive, and may from time to time increase the
Executive’s Base Salary. The first review shall be in January 2003. Effective
as of the date of any such increase, the “Base Salary” as so increased shall
become the Executive’s “Base Salary” for all purposes of this Agreement and may
not thereafter be reduced without the Executive’s written consent. Any
increase in Base Salary shall not limit or reduce any other obligation of the
Company to the Executive under this Agreement. The Company shall pay the
Executive’s Base Salary according to the payroll practices in effect for all
senior executive officers of the Company.
3.2 Annual Bonus. The Company shall pay to the Executive an annual cash
bonus (“Annual Bonus”) in accordance with the terms hereof for each “Year” (as
defined below) which ends during the Employment Term. The Executive shall be
eligible for an Annual Bonus as set forth in the Xxxxxx Human Resource
Consulting “Management Incentive Plan Design Anchor Glass Container
Corporation” report, dated June 11, 2002 (the “Xxxxxx Report”). The term
“Year” shall mean the Company’s fiscal year unless indicated otherwise.
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(a) If the Executive achieves his target performance goals (the
“Target Annual Goals”), as determined by the Board on an annual basis
after consulting with the Executive, such Annual Bonus shall be as set
forth in the Xxxxxx Report (the “Target Annual Bonus”). If the Executive
achieves his maximum performance goals (“Maximum Annual Goals”), as
determined by the Board (or Committee) on an annual basis after
consulting with the Executive, such Annual Bonus shall be as set forth in
the Xxxxxx Report. (the “Maximum Annual Bonus”). If the Executive
achieves threshold performance goals (“Threshold Annual Goals”), as
determined by the Board (or Committee) on an annual basis after
consulting with the Executive, such Annual Bonus shall be as set forth in
the Xxxxxx Report. If the Executive achieves a level of performance
which falls between the Threshold Annual Goals and the Target Annual
Goals or between the Target Annual Goals and the Maximum Annual Goals,
lineal interpolation shall be used to determine the Executive’s Annual
Bonus for such Year. Such performance goals shall be set by the Board
(or Committee) within ninety (90) days after the first day of the
applicable Year.
(b) For the Company’s 2002 Year, the Executive shall be eligible for
a target bonus as set forth in the Xxxxxx Report.
(c) The Company shall pay the entire Annual Bonus that is payable
with respect to a Year in a lump-sum cash payment as soon as practicable
after the Board (or Committee) can determine whether and the degree to
which Maximum Annual Goals, Target Annual Goals or Threshold Annual Goals
have been achieved following the close of such Year. Any such Annual
Bonus shall in any event be paid within ninety (90) days after the end of
the Year.
3.3 Equity Incentives. The Company shall make available to its senior
executives the following forms of equity
(a) Stock Options. The Executive shall be eligible to participate
in any stock option plan maintained by the Company, pursuant to the terms
of such plan.
(b) Stock Purchase. On the Effective Date, certain senior
executives of the Company shall have the opportunity to purchase shares
of Common Stock of the Company from Cerberus Capital Management, L.P., on
behalf of one or more funds or affiliates to be designated by it
(“Cerberus”), equal to an aggregate purchase price of approximately Three
Hundred Thousand Dollars ($300,000) (the “Common Shares”). The Executive
shall have the opportunity to purchase 121,500 Common Shares from
Cerberus, at a purchase price per Common Share of $0.5555 for a total
purchase price of $67,500. In connection with the purchase of Common
Shares, the Executive shall become a party to the Company’s Shareholders
Agreement.
3.4 Incentive Compensation. The Executive shall be eligible to
participate in any annual performance bonus plans, long-term incentive plans,
and/or equity-based compensation plans established or maintained by the Company
for its senior executive officers.
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3.5 Executive Benefit Plans. The Executive and/or his family (to the
extent eligible), as the case may be, will be eligible to participate on
substantially the same basis as the Company’s other senior executive officers
in any executive benefit plans offered by the Company. The Company reserves
the right to modify, suspend or discontinue any and all of the plans,
practices, policies and programs at any time without recourse by the Executive,
so long as Company takes such action generally with respect to other similarly
situated senior executive officers.
3.6 Business Expenses. The Company shall promptly reimburse the Executive
for all reasonable business-related expenses incurred in the performance of
services for the Company, in accordance with the policies, practices and
procedures of the Company.
3.7 Vacation. The Executive will be entitled to 20 paid vacation days for
each calendar year during the Employment Term.
ARTICLE IV
Payments on Termination of Employment.
4.1 Termination of Employment for any Reason. The following payments will
be made upon the Executive’s termination of employment for any reason and shall
be the only payments provided as a result of a termination of employment by the
Company for Cause or a voluntary termination by the Executive without Good
Reason:
(a) Earned but unpaid Base Salary through the date of termination;
(b) Any accrued but unpaid vacation;
(c) Any incentive compensation for which the performance measurement
period has ended and a payment earned under the terms of the incentive
plan, program or arrangement remains unpaid at the time of termination of
employment;
(d) Any amounts payable under any of the Company’s executive benefit
plans in accordance with the terms of those plans, except as may be
required under Section 401(a)(13) of the Code; and
(e) Unreimbursed business expenses incurred by the Executive on the
Company’s behalf pursuant to the Company’s reimbursement policy.
4.2 Termination of Employment for Retirement, Death or Disability. In
addition to the amounts determined under Section 4.1 above, if the Executive’s
termination of employment occurs by reason of Normal Retirement, death or
Disability: (a) the Executive (or his Beneficiary) will receive a pro rata
portion of any bonus payable under the Company’s incentive plans and under this
Agreement for the year in which such termination occurs determined based on the
Company’s actual performance against its Annual Goals for the fiscal year in
which such termination occurs; (b) all benefits received under this Agreement
that are subject to a vesting schedule shall continue to vest until the end of
the year in which the death, Disability or Normal Retirement occurs; and (c)
only in the case of Normal Retirement, the
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Executive shall be eligible to participate in an executive retiree health
plan; provided that the Executive shall pay the full cost of any applicable
premiums or other costs. For purposes of this Agreement, “Disability” means a
determination by the Company, in accordance with applicable law that, as a
result of a physical or mental injury or illness, the Executive is unable to
perform the essential functions of his job with or without reasonable
accommodation. The term “Normal Retirement” means the date in which the
Executive terminates from employment with the Company and does not perform
services for any other person or entity on or after the later of (i) attaining
age sixty-five (65) or (ii) five (5) years of service with the Company (which
shall include periods prior to the Effective Date).
4.3 Termination by the Company Without Cause, or Voluntary Termination by
the Executive for Good Reason. If the Company terminates the Executive’s
employment other than for Cause or the Executive voluntarily terminates his
employment for Good Reason, the Company will pay the following amounts and
provide the following benefits:
(a) The Base Salary and any annual bonus that the Company would have
paid under the Agreement had the Executive’s employment continued for 1
year after termination. For this purpose, an annual bonus will be the
actual bonus paid for the fiscal year immediately preceding such
termination.
(b) Continued coverage under the Company’s medical and dental plans
for 1 year after termination, under the terms and conditions of the
applicable plans, provided, however, that if the Executive becomes
employed with another employer and is eligible to receive medical and
dental benefits under another employer-provided plan, the medical and
dental benefits described herein shall be terminated.
(c) Continued vesting of any outstanding stock options or other
equity-based compensation awards as if the Executive remained employed
for 1 year after termination.
4.4 Good Reason.
(a) For purposes of this Agreement, “Good Reason” shall mean the
occurrence of any of the following without the Executive’s written
consent: (i) assigning duties to the Executive that are inconsistent
with those of the position of Executive Vice President-Sales & Asset
Management for similar companies in similar industries (except to the
extent the Company promotes the Executive to a higher executive
position), or any other action by the Company that results in a material
diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated insubstantial and inadvertent
action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive; (ii)
requiring the Executive to report to someone other than the Company’s CEO
or Board; (iii) the failure of the Company to pay any portion of the
Executive’s compensation within ten (10) days of the date such
compensation is due; (iv) the Company requires the Executive to relocate
his principal business office to a location not within thirty-five (35)
miles of the Company’s principal business office located in the Tampa,
Florida; (v) the Company’s
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material breach of any term of this Agreement; or (vi) any failure
of the Company to comply with and satisfy Section 6.1 of this Agreement.
(b) For purposes of this Section 4.4, “Company” shall mean any
successor to the Company by sale of more than fifty percent (50%) of the
voting securities of the Company or by sale of all or substantially all
of the assets of the Company so that in the event that a successor upon a
transaction does not assume this Agreement, the Executive may terminate
employment with Good Reason.
(c) Notwithstanding the above, the actions described in subsection
4.4(a) above shall not constitute Good Reason until after the Company
shall have been provided thirty (30) days prior written notice of such
action (which notice need not be given more than twice in any one year
period) and shall have failed to remedy such action during such thirty
(30) day period.
4.5 Cause. For purposes of this Agreement, “Cause” shall mean: (i) the
Executive’s material breach of any provision of the Agreement; (ii) the
Executive’s willful and continued failure to perform his duties as an executive
of the Company (other than any such failure resulting from a Disability); (iii)
the Executive’s willful misconduct, materially injurious to the Company,
monetarily or otherwise, or (iv) the Executive’s commission of a felony; in
each case as determined by the Board; provided, however, the actions described
in clauses (i), (ii) and (iii) above shall not constitute Cause until after a
written demand for substantial performance is delivered to the Executive by the
Board, which demand specifically identifies the manner in which the Board
believes that the Executive has not substantially performed his duties, and
which gives the Executive at least thirty (30) days to cure such alleged
deficiencies.
For purposes of this Section 4.5, no act or failure to act, on the part of
the Executive, shall be considered “willful” unless it is done, or omitted to
be done, by the Executive in bad faith. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or upon the
instructions of the Company’s CEO or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by
the Executive in good faith and in the best interests of the Company.
4.6 Timing of Payments. All payments described above shall be made in a
lump sum cash payment as soon as practicable (but in no event more than ten
(10) days) following the Executive’s termination of employment. If the total
amount of annual bonus is not determinable on that date, the Company shall pay
the amount of bonus that is determinable and the remainder shall be paid in a
lump sum cash payment within ten (10) days of the date that annual performance
results are finalized.
ARTICLE V
Restrictive Covenants
5.1 Definitions. For purposes of this Agreement, the following terms will
be defined as follows:
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(a) “Confidential Information” shall mean the Company’s trade
secrets and all other information unique to the Company and not readily
available to the public, including developments, designs, improvements,
inventions, formulas, compilations, methods, forecasts, software
programs, processes, know-how, data, research, operating methods and
techniques, and all business plans, strategies, costs, profits,
customers, vendors, markets, sales, products, key personnel, pricing
policies, marketing, sales or other financial or business information,
and any modifications or enhancements of any of the foregoing.
(b) The term “Business Conducted by the Company” shall mean the
glass container manufacturing business conducted by the Company as of the
date of the Executive’s termination of employment.
5.2 Inventions or Developments. The Executive agrees that he will
promptly and fully disclose to the Company all discoveries, improvements,
inventions, formulas, ideas, processes, designs, techniques, know-how, data and
computer programs (whether or not patentable, copyrightable or susceptible to
any other form of protection), made, conceived, reduced to practice or
developed by the Executive, either alone or jointly with others, during his
employment with the Company (collectively, the “Inventions or Developments”).
All Inventions and Developments shall be the sole property of the Company,
including all patents, copyrights, intellectual property or other rights
related thereto and the Executive assigns to the Company all rights (if any)
that the Executive may have or acquire in such Inventions or Developments.
Notwithstanding the foregoing, any right of the Company or assignment by
the Executive as provided in this paragraph shall not apply to any Inventions
or Developments for which no equipment, supplies, facility or trade secret
information of the Company were used and which were developed entirely on the
Executive’s own time, unless: (a) the Inventions or Developments relate to the
Business Conducted by the Company or the actual or demonstrably anticipated
research or development of the Company; or (b) the Inventions or Developments
result from any work performed by the Executive for the Company.
5.3 Non-Disclosure of Confidential Information or Inventions or
Developments. The Executive acknowledges that he has had and will have access
to Confidential Information or Inventions or Developments of the Company and
agrees that he shall not, at any time, directly or indirectly use, divulge,
furnish or make accessible to any person any Confidential Information or
Inventions or Developments, but instead shall keep all such matters strictly
and absolutely confidential; provided, however, that, with respect to periods
after the Executive’s termination of employment, all business plans,
strategies, costs, profits, customers, vendors, markets, sales, products, key
personnel, pricing policies, marketing, and sales shall only be considered
“Confidential Information” for the duration that payments are made to the
Executive pursuant to Section 4.3 hereof or for 1 year after a termination with
Cause.
5.4 No Diversion of Business Opportunities and Prospects. The Executive
agrees that during his employment with the Company: (a) the Executive shall not
directly or indirectly engage in any employment, consulting or other business
activity that is competitive with the Business Conducted by the Company; (b)
the Executive shall promptly disclose to the Company all business opportunities
that are presented to the Executive in his capacity as an
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employee of the Company or which is of a similar nature to the Business
Conducted by the Company or which the Company has expressed an interest in
engaging in the future; and (c) the Executive shall not usurp or take advantage
of any such business opportunity without first offering such opportunity to the
Company.
5.5 Actions Upon Termination. Upon the Executive’s employment termination
for whatever reason, the Executive shall neither take or copy nor allow a third
party to take or copy, and shall deliver to the Company all property of the
Company, including, but not limited to, all Confidential Information or
Inventions or Developments, regardless of the medium (i.e., hard copy, computer
disk, CD ROM) on which the information is contained.
5.6 Non-Competition. The Executive agrees that so long as he is employed
by the Company, for the period that the Executive receives payments pursuant to
Section 4.3 hereof after termination of employment or for 1 year after a
termination with Cause (the “Period”), he shall not, without the prior written
consent of the Company, participate or engage in, directly or indirectly (as an
owner, partner, employee, officer, director, independent contractor,
consultant, advisor or in any other capacity calling for the rendition of
services, advice, or acts of management, operation or control), any business
that, during the Period, is competitive with the Business Conducted by the
Company within the United States (hereinafter, the “Geographic Area”).
5.7 Non-Solicitation of Employees. The Executive agrees that, during the
Period, he shall not, without the prior written consent of the Company,
directly or indirectly solicit any current employee of the Company, or any
individual who becomes an employee during the Period, to leave such employment.
5.8 Non-Solicitation of Suppliers or Customers. The Executive agrees
that, during the Period, he shall not, without the prior written consent of the
Company, directly or indirectly solicit, seek to divert or dissuade from
continuing to do business with or entering into business with the Company, any
supplier, customer, or other person or entity that had a business relationship
with or with which the Company was planning or pursuing a business relationship
at or before the date of termination of his employment.
5.9 Irreparable Harm. The Executive acknowledges that: (a) the
Executive’s compliance with this Article V is necessary to preserve and protect
the Confidential Information, Inventions or Developments and the goodwill of
the Company as a going concern; (b) any failure by the Executive to comply with
the provisions of this Section will result in irreparable and continuing injury
for which there will be no adequate remedy at law; and (c) in the event that
the Executive should fail to comply with the terms and conditions of this
Article V, the Company shall be entitled, in addition to such other relief as
may be proper, to all types of equitable relief (including, but not limited to,
the issuance of an injunction and/or temporary restraining order) as may be
necessary to cause the Executive to comply with this Section, to restore to the
Company its property, and to make the Company whole.
5.10 Survival. The provisions set forth in this Article V shall, as
noted, survive termination of this Agreement.
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5.11 Forfeiture. If the Executive violates any provision of this Article
V, the Executive will forfeit his right to all payments and benefits under
Section 4.3, except to the extent otherwise provided by law.
5.12 Unenforceability. If any provision(s) of this Article V shall be
found invalid or unenforceable, in whole or in part, then such provision(s)
shall be deemed to be modified or restricted to the extent and in the manner
necessary to render the same valid and enforceable, or shall be deemed excised
from this Agreement, as the case may require, and this Agreement shall be
construed and enforced to the maximum extent permitted by law, as if such
provision(s) had been originally incorporated herein as so modified or
restricted, or as if such provision(s) had not been originally incorporated
herein, as the case may be.
ARTICLE VI
Miscellaneous
6.1 Assignment; Successors. This Agreement shall inure to the benefit of
and be binding upon the Company and its successors. The Company may not assign
this Agreement without the Executive’s written consent, except that the
Company’s obligations under this Agreement shall be the binding legal
obligations of any successor to the Company by sale, and in the event of any
transaction that results in the transfer of substantially all of the assets or
business of the Company, the Company will cause the transferee to assume the
obligations of the Company under this Agreement. Upon the Executive’s death
this Agreement will inure to the benefit of the Executive’s heirs, legatees and
legal representatives of the Executive’s estate.
6.2 Insurance and Indemnification. For the period from the Effective Date
through at least the tenth anniversary of the Executive’s termination of
employment from the Company, the Company agrees to maintain the Executive as an
insured party on all directors’ and officers’ insurance maintained by the
Company for the benefit of its directors and officers on at least the same
basis as all other covered individuals and provide Executive with at least the
same corporate indemnification as it provides to its other senior executive
officers.
6.3 Interpretation. The laws of the State of Florida shall govern the
validity, interpretation, construction and performance of this Agreement,
without regard to the conflict of laws principles thereof.
6.4 Withholding. The Company may withhold from any payment that it is
required to make under this Agreement amounts sufficient to satisfy applicable
withholding requirements under any federal, state or local law.
6.5 Amendment or Termination. This Agreement may be amended at any time
by written agreement between the Company and the Executive.
6.6 Notices. Notices given pursuant to this Agreement shall be in writing
and shall be deemed received when personally delivered, or on the date of
written confirmation of receipt by (a) overnight carrier, (b) telecopy, (c)
registered or certified mail, return receipt requested, addressee only, postage
prepaid, or (d) such other method of delivery that provides a written
confirmation of delivery. Notice shall be directed to:
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If to the Company, to: Anchor Glass Container
Corporation |
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0000 Xxxxxx Xxxxx Xxxxxxx |
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Xxxxx, Xxxxxxx 00000-0000 |
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Attention: President and Chief Executive Officer |
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With a copy to:
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Cerberus Capital Management, LP |
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000 Xxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention: Xxxxxx Xxxxxxx |
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With a copy to:
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Xxxxxxx Xxxx & Xxxxx LLP |
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000 Xxxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention: Xxxxxx X. Xxxxxxx, Esq. |
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If to the Executive, to his home address set forth in
the records of the Company |
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With a copy to:
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Winston & Xxxxxx |
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00 Xxxx Xxxxxx Xxxxx |
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Xxxxxxx, Xxxxxxxx 00000 |
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Attention: Xxxxxxx X. Xxxxxxxxx, Esq. |
The Company may change the person and/or address to whom the Executive must
give notice under this Section by giving the Executive written notice of such
change, in accordance with the procedures described above. Notices to or with
respect to the Executive will be directed to the Executive, or to the
Executive’s executors, personal representatives or distributees, if the
Executive is deceased, or the assignees of the Executive, at the Executive’s
home address on the records of the Company.
6.7 Severability. If any provision(s) of this Agreement shall be found
invalid or unenforceable by a court of competent jurisdiction, in whole or in
part, then it is the parties’ mutual desire that such court modify such
provision(s) to the extent and in the manner necessary to render the same valid
and enforceable, and this Agreement shall be construed and enforced to the
maximum extent permitted by law, as if such provision(s) had been originally
incorporated herein as so modified or restricted, or as if such provision(s)
had not been originally incorporated herein, as the case may be.
6.8 Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the Company and the Executive and supersedes all prior
agreements and understandings, written or oral, relating to the subject matter
hereof.
6.9 Consultation With Counsel. Executive acknowledges that he has had a
full and complete opportunity to consult with counsel of the Executive’s own
choosing concerning the terms, enforceability and implications of this
Agreement, and the Company has made no representations or warranties to
Executive concerning the terms, enforceability or implications of this
Agreement other than as are reflected in this Agreement.
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6.10 Waiver; Release of Claims. No failure or delay by the Company or the
Executive in enforcing or exercising any right or remedy hereunder shall
operate as a waiver thereof. No modification, amendment or waiver of this
Agreement nor consent to any departure by the Executive from any of the terms
or conditions thereof, shall be effective unless in writing and signed by the
Chairman of the Company’s Board. Any such waiver or consent shall be effective
only in the specific instance and for the purpose for which given.
6.11 Mitigation. In no event shall the Executive be obligated to seek
other employment or take any other action to mitigate the amounts payable to
the Executive under any of the provisions of this Agreement, nor shall the
amount of any payment hereunder be reduced by any compensation earned as result
of the Executive’s employment by another employer, except that any continued
welfare benefits provided for by Section 4.3 shall not duplicate any benefits
that are provided to the Executive and his family by such other employer and
shall be secondary to any coverage provided by such other employer.
6.12 Beneficiary. If the Executive dies prior to receiving all of the
amounts payable to him in accordance with the terms of this Agreement, such
amounts shall be paid to one or more beneficiaries (each, a “Beneficiary”)
designated by the Executive in writing to the Company during his lifetime, or
if no such Beneficiary is designated, to the Executive’s estate. Such payments
shall be made in a lump sum to the extent so payable and, to the extent not
payable in a lump sum, in accordance with the terms of this Agreement.
Executive, without the consent of any prior Beneficiary, may change his
designation of Beneficiary or Beneficiaries at any time or from time to time by
a submitting to the Company a new designation in writing.
6.13 Enforcement Costs. The prevailing party in any litigation or action
with respect to this Agreement shall be reimbursed for all fees or expenses
incurred in such litigation or action; provided, however, that the maximum
reimbursement from the Executive to the Company shall be $100,000.
6.14 Representations by Executive. Executive represents and warrants that
by accepting employment with the Company under this Agreement, he is not (a)
breaching any other agreement with any third party, including but not limited
to any former employer, or (b) in any other way restricted in or limited from
fulfilling the terms of this Agreement.
6.15 Survival. All sections of this Agreement survive beyond the
Employment Term except as otherwise specifically stated.
6.16 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
6.17 Counterparts. The parties may execute this Agreement in one or more
counterparts, all of which together shall constitute but one Agreement.
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