1
Exhibit 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of 14 July 1997, between Xxx X. Xxxxxx,
Inc., a Pennsylvania corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx
(the "Executive").
WHEREAS, on 23 May 1997 Executive was appointed by the Company's Board of
Directors (the "Board") to serve as the Company's Acting President and Chief
Executive Officer;
WHEREAS, on 14 July 1997 the Board appointed Executive to the position of
President and Chief Executive Officer; and
WHEREAS, the parties further desire to set forth in this Agreement the
terms and conditions of the Executive's employment by the Company as President
and Chief Executive Officer; and
THEREFORE, in consideration of the mutual obligations contained in this
Agreement and the mutual benefits to be derived from those obligations, and
intending to be legally bound by this Agreement, the Executive and the Company
agree as follows:
SECTION 1. CAPACITY AND DUTIES
1.1 EMPLOYMENT; ACCEPTANCE OF EMPLOYMENT. Company hereby employs Executive and
Executive hereby accepts employment by the Company, as President and Chief
Executive Officer, effective 14 July 1997, upon the terms and conditions set
forth below in this Agreement.
1.2 CAPACITY AND DUTIES.
(a) Executive shall be employed by Company as its President and Chief
Executive Officer, subject to the supervision of the Board, and shall perform
such duties and shall have such authority as set forth in the Company's By-laws
and as may from time to time be specified by the Board. Executive shall report
directly to the Board and shall perform his duties for Company principally from
Company's office located in West Chester, Pennsylvania, except for periodic
travel that may be necessary or appropriate in connection with the performance
of Executive's duties under this Agreement.
(b) Executive shall devote his full working time, energy, skill and best
efforts to the performance of his duties under this Agreement, in a manner which
will faithfully and diligently further the business and interests of the Company
and its affiliates (as defined below), and shall not be employed by or
participate or engage in or be a part of the management or operation of
2
any business enterprise other than the Company and its affiliates, without the
prior written consent of the Board, which consent may be granted or withheld in
the sole discretion of the Board. For purposes of this Agreement, "affiliate"
means any entity in which at least 50% of the voting power is controlled by the
Company.
SECTION 2. TERM OF EMPLOYMENT
2.1 TERM. The Executive's employment under this Agreement shall commence as of
14 July 1997, and shall continue at will until terminated in accordance with the
provisions of this Agreement.
SECTION 3. COMPENSATION
3.1 BASIC COMPENSATION. As compensation for Executive's services under this
Agreement, Company shall pay to Executive a salary at the annual rate of
$275,000 (the "Base Salary"), payable in periodic installments in accordance
with the Company's regular payroll practices in effect from time to time. The
Base Salary shall be reviewed from time to time by the Board and/or its
Compensation Committee as conditions warrant, but not less frequently than on
each anniversary of the Executive's employment. Such review shall consider, but
not be limited to, Executive's performance as determined by the Board and/or its
Compensation Committee.
3.2 INCENTIVE COMPENSATION; STOCK OPTIONS.
(a) Annual Incentive Pay/Bonus. In addition to the Base Salary provided
for in Section 3.1, the Executive will participate in the Company's
Salary-At-Risk Incentive Compensation Program ("SAR"), with a SAR guideline
incentive of 50% of Base Salary. Executive understands that the Company's SAR
program is expected to be reviewed and revised and Executive shall only be
entitled to participate in the current SAR program if, and to the extent that,
the program is maintained by the Company for its management personnel generally.
While the SAR program is maintained by the Company, Executive's performance
rating under that program shall be determined by the Chairman of the Company's
Board. Executive will be entitled to participate in any revised incentive
program for officers of the Company, under the terms of that revised program as
approved by the Board.
(b) Stock Option Grants. As an inducement to the Executive to increase
shareholder value, the Company desires that the Executive acquire a substantial
number of shares of the Company's Class A common stock. To carry out this
purpose, the following stock option grants will be provided by the Company to
Executive:
(i) One-Time Grant. On 14 July 1997, the Company will grant a ten
year, non-qualified stock option to the Executive to purchase 22,000
shares of
2
3
the Company's Class A common stock ("Stock") pursuant to a separate
stock option agreement made under and subject to the Company's
Stock-Based Incentive Compensation Plan (as amended and restated as
of March 15, 1991) (the "Stock Option Plan"), with the exercise
price under the option to be the closing market price of the stock
as published in the Wall Street Journal (NASDAQ Symbol: WSTNA) as of
the close of business on 14 July 1997 (the "14 July 1997 market
price"). Such option shall be exercisable as to 20% of such shares
on 14 July 1998, and as to an additional 20% of such shares on each
of 14 July 1999, 2000, 2001, and 2002. The separate stock option
agreement will be in the form attached to this Agreement as Exhibit
A and will terminate on the Employment Ending Date (as defined in
section 4.2 below).
(ii) Annual Stock Option Grants. Subject to approval by the
Company's Board an/or its Compensation Committee, during the
Executive's employment under this Agreement, the Company may make,
commencing in 1998, annual grants of non-qualified stock options to
the Executive for 4400 shares of Stock or such other number of
shares of stock as may be approved by the Board and/or its
Compensation Committee. Such annual grants shall be made generally
at such times, at such exercise prices, and in a manner consistent
with and under the same terms and conditions as are contained in,
options granted to other senior officers of the Company, as
determined by the Board and/or its Compensation Committee, and shall
be made under and subject to the Stock Option Plan, or any successor
plan. All such options shall terminate on the Employment Ending
Date.
(iii) Special Performance Stock Option Grant. On 14 July 1997 the
Company will grant a special ten year non-qualified stock option to
the Executive to purchase 100,000 shares of Stock pursuant to a
separate special stock option agreement made under and subject to
the Stock Option Plan. The special stock option shall have an
exercise price equal to the 14 July 1997 market price . The special
stock option shall be exercisable, beginning six months after the
date of grant, as follows:
(A) as to 20,000 shares on and after the first date on which
the market price of the stock has increased by $2.00 over the
exercise price and has remained at least $2.00 higher than the
exercise price on each and every day during a period of 90
consecutive calendar days;
(B) as to an additional 20,000 shares on and after the first
date on which the market price of the stock has increased by
$4.00 over the exercise price and has remained at least $4.00
higher than the exercise price on each and every day during a
period of 90 consecutive calendar days;
3
4
(C) as to an additional 20,000 shares on and after the first
date on which the market price of the stock has increased by
$6.00 over the exercise price and has remained at least $6.00
higher than the exercise price on each and every day during a
period of 90 consecutive calendar days;
(D) as to an additional 20,000 shares on and after the first
date on which the market price of the stock has increased by
$8.00 over the exercise price and has remained at least $8.00
higher than the exercise price on each and every day during a
period of 90 consecutive calendar days; and
(E) as to the final 20,000 shares on and after the first date
on which the market price of the stock has increased by $10.00
over the exercise price and has remained at least $10.00
higher than the exercise price on each and every day during a
period of 90 consecutive calendar days.
The special stock option agreement will contain the terms set forth
in Exhibit A attached to this Agreement, except that the exercise
schedule shall be as set forth in (A) - (E) above. The special stock
option agreement shall terminate on the Employment Ending Date.
3.3 EXECUTIVE BENEFITS. In addition to the compensation provided for in Sections
3.1 and 3.2 hereof, the Executive shall be entitled during the term of his
employment under this Agreement to participate in all benefit plans maintained
by the Company in which senior corporate officers are entitled to participate.
Such benefit plans currently include, among others, the Company's Retirement
Savings Plan, Supplemental Executive Retirement Plan, and Group Life, Disability
and Medical Plans. Notwithstanding anything else in this Agreement, other than
as set forth in Section 4 below, Executive shall not be eligible for any
severance or termination benefits under any Company plans, policies or
procedures providing for such benefits, including, but not limited to, the Xxx
X. Xxxxxx, Inc. Employee Severance Plan and any predecessor or successor
severance plan.
3.4 VACATION. Executive shall be entitled to paid vacation in accordance with
the Company's vacation policy for officers.
3.5 EXPENSE REIMBURSEMENT. During the term of his employment under this
Agreement, Company shall reimburse Executive for all reasonable expenses
incurred by him in connection with the performance of his duties under this
Agreement, in accordance with Company's regular reimbursement policies in effect
from time to time, and upon receipt of itemized vouchers for such expenses and
such other supporting information as Company may reasonably require. In
addition,
4
5
Company shall reimburse Executive for the reasonable moving expenses incurred by
him in moving his family's residence from Virginia to Pennsylvania to commence
employment under this Agreement, including specifically the cost of the physical
move of household goods; prevalent real estate sales commissions; legal
expenses; mortgage points that are customary and prevalent at the time of
purchase of a principal residence in Pennsylvania, provided such points are
incurred within one year from 14 July 1997; temporary living expenses for a
period not in excess of six months from 14 July 1997; and the cost of travel
from Virginia to Pennsylvania in order for Executive and his spouse to locate a
satisfactory personal residence. Reasonable moving expenses shall also include
the reimbursement of Executive's duplicate carrying charges, consisting of
interest and real estate taxes, for a period of up to six months, on Executive's
personal residence in Virginia following his purchase of a personal residence in
Pennsylvania. To the extent that the expenses reimbursed under this Section 3.5
are included in the Executive's income for purposed of federal, state or local
taxes, the Company shall increase such reimbursement, first, by an amount
sufficient to provide for the payment of such taxes, and, second, by an amount
sufficient to provide for the payment of taxes on such taxes, but not by any
additional amount.
3.6 AUTOMOBILE. During his employment by Company, Company shall pay Executive an
automobile allowance and shall also reimburse Executive for his gasoline,
maintenance, and insurance costs for his automobile, all in accordance with the
Company's automobile allowance policies, which are subject to change from time
to time. Currently, the Company's automobile policy provides an automobile
allowance to Executive in the amount of $600.00 per month. Executive shall, in
accordance with the company's policies, notify company as to the business and
personal use of his automobile, so that Company may withhold taxes, as
appropriate in connection with the automobile allowance and reimbursements.
3.7 CLUB MEMBERSHIP. During the term of his employment under this Agreement, if
the Board, in its sole discretion, deems it appropriate for Executive to belong
to a business or country club, Company will reimburse Executive for initiation
fees and monthly dues for membership in that club.
3.8. HIRING BONUS. Company shall pay to Executive a one-time hiring bonus in the
amount of $25,000 on or before September 14, 1997.
SECTION FOUR. TERMINATION OF EMPLOYMENT
4.1 DEFINITIONS.
(a) For Cause. As used in this Agreement "for cause" shall mean that
Executive committed or engaged in an intentional act of (i) fraud, embezzlement,
dishonesty or theft in connection with his duties under this Agreement or in the
course of his employment with Company, (ii) wrongful damage to Company's
property, (iii) wrongful disclosure of Company's secret processes or
confidential information, or (iv) any other kind which is materially harmful to
5
6
Company. No act, or failure to act, shall be deemed "intentional" if it was due
primarily to an error in judgment or to negligence, but shall be deemed
"intentional" only if done, or omitted to be done, by Executive not in good
faith and without reasonable belief that his act or omission was in Company's
best interest.
(b) Change in Control. There shall be considered to have been a "change in
control" of Company if:
(i) During any two year period beginning after 14 July 1997, Directors of
the Company in office at the beginning of such period plus any new Director
whose election by the Board, or whose nomination for election by the Company's
shareholders, was approved by vote of at least two thirds of the Directors then
still in office who either were Directors at the beginning of the period or
whose election or nomination for election was previously so approved, shall
cease for any reason to constitute at least a majority of the Board; or
(ii) The Company's shareholders or the Board shall approve
(A) any consolidation or merger of the Company in which the Company
is not the continuing or surviving corporation or pursuant to which
the Company's voting stock would be converted into cash, securities
and/or other property, other than a merger of the Company in which
holders of such voting stock immediately before the merger have the
same proportionate ownership of voting stock of the surviving
corporation immediately after the merger as they had in the Company
before the merger,
(B) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all the
assets or earning power of the Company; or
(C) the liquidation or dissolution of the Company.
(c) Good Reason Resignation. As used in this Agreement, Executive shall be
deemed to have resigned his employment by Company for "good reason" if either:
(i) Executive, at any time, elects in good faith to discontinue his
employment with Company because his responsibilities, duties or
authority have changed materially from their level at the time of
commencement of his employment under this Agreement, which change
substantially reduces the rank or level, responsibility or scope of
Executive's position with Company (or its successor in the case of a
merger, consolidation, acquisition or transfer of substantially all
of its business assets) below that which he has on the effective
date of this Agreement as Company's President and Chief Executive
Officer; or
6
7
(ii) Executive elects to discontinue his employment with the Company
within 365 days after there is a change in control of the Company.
If Executive elects to end his employment by Company for a reason which
Executive believes is a good reason as defined by this section 4.3 (c), he shall
provide the Company with written notice of such resignation and shall state in
that notice the specific matter or matters which he asserts constitute the "good
reason" for his resignation.
(d) Disability. As used in this Agreement, "Disability" or "Disabled"
shall mean a physical or mental disability which is either (i) a total and
permanent disability as defined in any disability benefit plan offered by the
Company to its senior officers and in effect at the time Executive becomes
disabled (whether or not Executive has elected to purchase such disability
insurance), or (ii) determined to be a total and permanent disability by a
physician who is selected by the Company and is acceptable to Executive or his
legal representative (which acceptance shall not be unreasonably withheld).
4.2 TIME AND MANNER OF TERMINATION OR RESIGNATION. Executive's employment by
Company, including his office as President and Chief Executive Officer, shall be
at will. Executive's employment shall terminate immediately upon Executive's
death or Disability, or upon written notice to Executive that the Board is
terminating Executive's employment for cause. Otherwise Executive's employment
shall terminate on the date selected by the party initiating termination or
resignation, which date shall be specified in a written notice to the other
party, and which (i) in the event of termination of Executive by the Company for
any reason other than for cause, shall be 30 days after delivery of such notice
unless a longer period is approved by the Board in its sole discretion, and (ii)
in the event of resignation by Executive, shall be 30 days after delivery of
such notice unless a longer or shorter period is approved by the Board and
Executive. The date on which Executive's employment by Company terminates is
referred to in this Agreement as the "Employment Ending Date". As of the
Employment Ending Date, if Executive is a member of Company's Board or of the
Board of Directors of any affiliate, he shall provide Company with his written
resignation from each such Board and from his position as an officer of any
affiliate.
4.3 BENEFITS PAYABLE.
(a) Severance Amount. If either (1) Company terminates Executive's
employment for any reason other than for cause, death or Disability, or (2)
Executive resigns his employment by Company for good reason, Executive shall be
paid the following severance amount:
(i) If such termination or resignation occurs on or before July 13,
1998, Executive shall be paid his base monthly, salary at the time
of such termination or resignation, for 9 months;
7
8
(ii) If such termination or resignation occurs after July 13, 1998,
but before July 14, 1999, Executive shall be paid his base monthly
salary, at the time of such termination or resignation, for 12
months;
(iii) If such termination or resignation occurs on or after July 14,
1999, Executive shall be paid his base monthly salary, at the time
of such termination or resignation, for 24 months.
For purposes of this section 4.3 (a) , Executive's base monthly salary shall be
one-twelfth of his annual Base Salary at the rate in effect on the Employment
Ending Date. Company shall make the severance payments under this section 4.3
(a) beginning with the first calendar month after the Employment Ending Date, in
accordance with Company's regular pay policies for employees. If Executive dies
before the last monthly payment, the remaining payments shall be paid to his
estate. The number of months that the severance amount under this section 4.3
(a) are payable to Executive under section 4.3 (a) (i), (ii) or (iii) above is
referred to below as the "severance period".
(b) Additional Severance Benefits. If severance payments are payable
to Executive under subsection 4.3 (a) above, the following additional
severance benefits shall be provided to Executive by Company:
(i) Company shall pay Executive the amount earned under its SAR
program (or any applicable replacement incentive program in effect
at the time of the Employment Ending Date) for the portion of the
calendar quarter to and including the Employment Ending Date.
Company shall make such payment on or about the date Company makes
such payments to other participating employees;
(ii) Company shall provide medical, dental and prescription plan
benefits for Executive, on the same cost-sharing and other basis as
is then in effect for active employees, during the severance period
or until Executive elects that such coverages sooner cease. After
such coverages cease in accordance with the previous sentence,
Executive may elect continuation coverage completely at his own
expense as provided by law;
(iii) Company shall provide Executive with outplacement services at
Company's expense at the level in effect for Executive Officers of
the Company on the Employment Ending Date.
(iv) Company shall pay Executive his automobile allowance and
reimbursement, at the level in effect on the Employment Ending Date,
during the severance period.
8
9
(v) If such termination or resignation occurs before 14 July 1999,
Company shall pay Executive the cost of moving his household items
from his residence in Pennsylvania to Virginia.
(c) When Severance Benefits Not Payable. None of the severance benefits
described in this section 4.3 shall be payable to Executive if (i) Executive's
employment with Company terminates as a result of Executive's death or
Disability or for cause, or (ii) Executive voluntarily ends his employment with
Company other than by resigning for good reason. The compensation and benefits
which the Company is required to pay Executive pursuant to this section 4.3 are
the only compensation and benefits to which the Executive is entitled upon a
termination or resignation of employment.
(d) Cooperation. As a condition to receipt of the severance benefits
described in this section 4.3, Executive shall provide Company with such
information pertaining to his employment with Company as he may have and shall
assist Company to transfer his duties to such successor or successors as Company
may designate. Company shall reimburse Executive for all reasonable
out-of-pocket expenses he incurs in fulfilling his obligation under the
preceding sentience.
(e) Release. As a condition to receipt of the severance benefits described
in this section 4.3, Executive shall deliver an effective, executed release to
Company in the form attached to this Agreement as Exhibit B on or before the
Employment Ending Date.
(f) Acceleration Election. Company may, at its sole option and in its sole
and absolute discretion, at any time or from time to time, accelerate the time
and the manner of making any one or more payments required under this section
4.3.
(g) Taxes. Company shall withhold from payments to Executive and remit to
the appropriate government agencies such payroll taxes and income withholding as
Company determines is or may be necessary under applicable law with respect to
amounts paid to Executive under this section 4.3.
(h) General Obligation. The rights and benefits of Executive to receive
payments under this section 4.3 shall be solely those of an unsecured creditor
of Company.
9
10
SECTION FIVE. RESTRICTIVE COVENANTS
5.1 CONFIDENTIALITY. Executive acknowledges a duty of confidentiality owed to
Company and shall not, at any time during or after his employment by Company,
retain in writing, use, divulge, furnish, or make accessible to anyone, without
the express authorization of the Board, any trade secret, private or
confidential information or knowledge of Company or any of its affiliates
obtained or acquired by him while so employed. All computer software, address
books, rolodexes, business cards, telephone lists, customer fists, price lists,
contract forms, catalogs, books, records, and files and know-how acquired while
an employee of Company, are acknowledged to be the property of Company and shall
not be duplicated, removed from Company's possession or made use of other than
in pursuit of Company's business. Upon the Employment Ending Date, Executive
shall deliver to Company, without further demand, all copies thereof which are
then in his possession or under his control.
5.2 INVENTIONS AND IMPROVEMENTS. During the term of his employment, Executive
shall promptly communicate to Company all ideas, discoveries and inventions
which are or may be useful to Company or its business. Executive acknowledges
that all ideas, discoveries, inventions, and improvements which are made,
conceived, or reduced to practice by him and every item of knowledge relating to
Company's business interests (including potential business interests) gained by
him during his employment hereunder are the property of Company, and Executive
hereby irrevocably assigns all such ideas, discoveries, inventions,
improvements, and knowledge to Company for its sole use and benefit, without
additional compensation. The provisions of this Section shall apply whether such
ideas, discoveries, inventions, improvements or knowledge are conceived, made or
gained by him alone or with others; whether during or after usual working hours,
whether on or off the job, whether applicable to matters directly or indirectly
related to Company's business interests (including potential business
interests), and whether or not within the specific realm of his duties. Any of
Executive's ideas, inventions, and improvements relating to Company's business
interests or potential business interests and conceived during the severance
period shall, for the purposes of this Agreement, be deemed to have been
conceived before the Employment Ending Date. Executive shall, upon request of
Company, but at no expense to Executive, at any time during or after his
employment with Company, sign all instruments and documents requested by Company
and otherwise cooperate with Company to protect its right to such ideas,
discoveries, inventions, improvements, and knowledge, including applying for,
obtaining, and enforcing patents and copyrights thereon in any and all
countries.
5.3. NONCOMPETITION; NONSOLICITATION. Executive shall not, without Company's
prior written approval, either directly or indirectly, for his own account or
for the account of another person or entity, for a period of two years from and
after the Employment Termination Date:
(a) acquire or hold a significant financial interest in any competitor of
Company or of any affiliate;
10
11
(b) compete with Company or any affiliate in soliciting any business from
any person or entity that was at any time during the two years immediately
preceding the Employment Ending Date a client or potential client of Company or
any affiliate, as to which client or potential client Company or an affiliate
had rendered a significant volume of service or had a significant amount of
direct business contact for the purpose of soliciting future business; or
(c) render services to any competitor of Company or an affiliate, if such
services are similar in nature (in whole or in part) to services Executive
rendered to Company or any affiliate at any time during the two years
immediately preceding the Employment Ending Date.
(d) solicit, hire or otherwise induce any employee of Company or an
affiliate to leave the employment of Company or the affiliate, or induce any
such employee to become an employee of, or otherwise become associated with, any
company or business other than Company or the affiliate. This paragraph shall
apply to inducement, hiring or solicitation of any employee of Company or an
affiliate, regardless of position.
Upon the breach by Executive of his obligations under this section 5.3, in
addition to Company's right to obtain appropriate injunctive relief as set forth
in section 5.4 of this Agreement, Company's obligation to make severance
payments or provide severance benefits to Executive under section 4 of this
Agreement shall terminate immediately and Executive shall, within 10 days after
written demand by Company, repay to Company all severance payments previously
made to Executive as well as an amount equal to the cost of severance benefits
previously provided to Executive.
5.4. INJUNCTIVE AND OTHER RELIEF.
(a) Executive acknowledges and agrees that his obligations contained in
this Agreement are fair and reasonable in light of the consideration paid under
this Agreement, and that damages alone shall not be an adequate remedy for any
breach by Executive of those obligations. Accordingly, Executive expressly
agrees that, in addition to any other remedies which Company may have, Company
shall be entitled to injunctive relief in any court of competent jurisdiction
for any breach or threatened breach of any of those obligations by Executive.
Nothing contained in this Agreement, including, without limitation, Section 6. 1
hereof, shall prevent or delay Company from seeking, in any court of competent
jurisdiction, specific performance or other equitable remedies in the event of
any breach or intended breach by Executive of any of his obligations under this
Agreement.
(b) Notwithstanding the equitable relief available to Company, the
Executive, in the event of a breach of his obligations contained in Section 5
hereof, understands and agrees that the uncertainties and delay inherent in the
legal process would result in a continuing breach for some period of time, and
therefore, continuing injury to Company until and unless Company can obtain
appropriate equitable relief. Therefore, in addition to such equitable relief,
Company shall be entitled to monetary damages for any such period of breach
until the termination of such breach,
11
12
in an amount deemed reasonable to cover all actual and consequential losses,
plus all moneys received by Executive as a result of said breach, and all costs
and attorneys' fees incurred by Company in enforcing this Agreement. If
Executive should use or reveal to any other person or entity any confidential
information in violation of this Agreement, this will be considered a continuing
violation on a daily basis for so long a period of time as such confidential
information is made use of by Executive or any such other person or entity.
SECTION SIX. MISCELLANEOUS
6.1 ARBITRATION.
(a) Except as set forth in the last sentence of this Paragraph 6.1, all
disputes arising out of or relating to this Agreement which cannot be settled by
the parties shall promptly be submitted to and settled exclusively by
arbitration in West Chester, Pennsylvania in accordance with the laws of the
Commonwealth of Pennsylvania by three arbitrators, one of whom shall be
appointed by the Company, one by the Executive and the third of whom shall be
appointed by the first two arbitrators. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association, except with
respect to the selection of arbitrators which shall be as provided in this
section 6.1. Judgment upon the award rendered by a majority decision of the
arbitrators may be entered in any court having jurisdiction thereof. The Company
shall, however, have the right to seek and obtain preliminary injunctive relief,
in a court of competent jurisdiction, for any existing or threatened violation
by Executive of Section Five of this Agreement.
(b) The arbitrators shall award to the prevailing party in any such
arbitration or preliminary injunction proceeding, in addition to any other
appropriate relief, the costs and expenses (including reasonable attorneys fees)
incurred by that party in connection with the enforcement of that party's rights
under this Agreement, unless the arbitrators shall determine that under the
circumstances such an award would be unjust.
6.2. PRIOR EMPLOYMENT. Executive represents and warrants that he is not a party
to any other employment, non-competition or other agreement or restriction which
could interfere with his employment with Company or with his or Company's rights
and obligations under this Agreement; and that his acceptance of employment with
Company and the performance of his duties under this Agreement will not breach
the provisions of any contract, agreement, or understanding to which he is party
or any duty owed by him to any other person.
6.3. SEVERABILITY. The invalidity or unenforceability of any particular
provision or part of any provision of this Agreement shall not affect the other
provisions or parts of this Agreement, except that in the event that the Release
described in section 4.3 (e) hereof is given by Executive and is determined to
be invalid or unenforceable, such that Executive is permitted to maintain
against Company any claim purported to be released under that Release, then
Company's obligation to provide severance payments and benefits under Section
4.3 of this Agreement shall be deemed null and void and Executive shall repay to
Company any of those severance payments
12
13
and benefits already paid Company. In the event that any provision hereof is
determined to be invalid or unenforceable by a court of competent junctions
Executive and Company shall negotiate in good faith to provide Company and
Executive with protection as nearly equivalent to that found to be invalid or
unenforceable and if any such provision shall be so determined to be invalid or
unenforceable by reason of the duration or geographical scope of the covenants
contained therein, such duration or geographical scope, or both, shall be
considered to be reduced to a duration or geographical scope to the extent
necessary to cure such invalidity.
6.4. ASSIGNMENT. This Agreement shall not be assignable by Executive, and shall
be assignable by Company only to any person or entity which may become a
successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to Company in the business or a portion of the business presently
operated by it. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors, assigns,
heirs, executors and administrators.
6.5. NOTICES. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service, or by registered or certified mail, postage prepaid, return receipt
requested, (confirmed by U.S. mail), addressed as set forth below or to such
other person and/or at such other address as may be furnished in writing by any
party hereto to the other. Any such notice shall be deemed to have been given as
of the date received, in the case of personal delivery, or on the date shown on
the receipt or confirmation therefor, in all other cases. Any and all service of
process and any other notice in any such action, suit or proceeding shall be
effective against any party if given as provided in this Agreement; provided
that nothing herein shall be deemed to affect the right of any party to serve
process in any other manner permitted by law.
If to Company:
Xxx Xxxxxx Xxx
Xxxx Xxxxxxx, XX 00000-0000
Attention: Vice President, Human Resources
With a copy to:
F. Xxxxxxx Xxxxxxx, Esq.
Drinker Xxxxxx & Xxxxx
Philadelphia National Bank Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
13
14
If to Executive:
Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
6.6. ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes the entire
agreement between the Company and the Executive with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto, including the Consulting Agreement between Company and
Executive dated as of 23 May, 1997 (the "Consulting Agreement"). The Consulting
Agreement shall be deemed to have terminated as of 14 July 1997. Any amendment,
modification, or waiver of this Agreement shall not be effective unless in
writing and signed by the party against whom enforcement is sought. The failure
by any party to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant or
condition, nor shall a party's waiver or relinquishment of any right or power
hereunder at any one or more times be deemed a waiver or relinquishment of such
right or power at any other time or times.
6.7. GOVERNING LAW. This Agreement is made pursuant to, and shall be construed
and enforced in accordance with, the internal laws of the Commonwealth of
Pennsylvania (and United States federal law, to the extent applicable), without
giving effect to otherwise applicable principles of conflicts of law.
6.8. HEADINGS; COUNTERPARTS. The headings of paragraphs in this Agreement are
for convenience only and shall not affect its interpretation. This Agreement may
be executed in two or more counterparts, each of which shall be deemed to be an
original and all of which, when taken together, shall be deemed to constitute
but one and the same Agreement.
6.9. FURTHER ASSURANCES. Each of the parties hereto shall execute such further
instruments and take such other actions as any other party shall reasonably
request in order to effectuate the purposes of this Agreement.
6.10. NON-ALIENATION. None of the rights or payments contemplated under this
Agreement may be sold, given away, assigned, transferred, pledged, mortgaged,
alienated, hypothecated or in any way encumbered or disposed of by Executive, or
any executor, administrator, heir, legatee, distributee, relative or any other
person or entity, whether or not in being, claiming under Executive by virtue of
this Agreement, and none of the rights or benefits contemplated by this
Agreement shall be subject to execution, attachment or similar process. Any
sale, gift, assignment, transfer, pledge, mortgage, alienation, hypothecation or
encumbrance, or other disposition of this Agreement or of such rights or
benefits contrary to the foregoing provisions, or the levy or any attachment or
similar process thereon, shall be null and void and without effect.
14
15
6.11. RIGHT TO USE LIKENESS. Executive hereby grants to Company the absolute
right and permission to copyright and use, re-use and/or publish for lawful
business purposes, any photographic portraits or pictures of Executive (and
printed matter in conjunction therewith) in which Executive may be included in
whole or in part or composite, for art, advertising, or trade.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date flat above written.
ATTEST: XXX X. XXXXXX, INC.
_____________s/_________________ By__________s/______________________
XXX XXXXXX
CHAIRMAN OF THE BOARD
______________s/____________________
XXXXXXX X. XXXXXXXXX
EXECUTIVE
15
