EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of January 14,
1998, between The Xxxxxxxx Group, Ltd., an Illinois corporation (the "Company"),
Xxxxxxxx Holdings Corp., a Delaware corporation ("Holdings"), and Xxxxx Xxxxxxxx
("Executive").
The execution and delivery of this Agreement by the Company and
Executive are conditions to the purchase of shares of The Xxxxxxxx Group, Ltd.'s
Common Stock pursuant to that certain Stock Purchase Agreement dated November
25, 1997 by and among the Company, Holdings, BAC Newco, Inc. and the
stockholders of The Xxxxxxxx Group, Ltd., as amended by Amendment No. 1 dated
January 14, 1998 (the "Purchase Agreement").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive
hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the date hereof and ending
as provided in paragraph 4 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the
President and Chief Executive of the Company and shall have the normal duties,
responsibilities and authority of the President and Chief Executive Officer,
subject to the power of the Company's Board of Directors (the "Board")
reasonably to expand or limit such duties, responsibilities and authority and to
override actions of the President and Chief Executive Officer. In addition, at
the request and pleasure of the Board of Directors of Holdings, Executive shall
serve as President and Chief Executive Officer of Holdings. During the
Employment Period, the Executive's principal place of business shall be at the
Company's headquarters located in Langhorne, Pennsylvania, but the Company shall
move its headquarters to a location mutually acceptable to Executive and the
Board, if, after the second anniversary of the date hereof, the Executive
requests that Company headquarters be moved.
(b) Executive shall report to the Board, and Executive shall
devote his best efforts and his full business time and attention (except for
permitted vacation periods and reasonable periods of illness or other
incapacity) to the business and affairs of the Company and its Subsidiaries.
Executive shall perform his duties and responsibilities to the best of his
abilities in a diligent, trustworthy, businesslike and efficient manner and
shall not undertake any other business activities that could adversely affect
the performance of his duties.
(c) For purposes of this Agreement, "Subsidiaries" shall mean
any corporation, partnership, limited liability company or other entity of which
the securities having a majority of the voting power in electing directors,
general partners or managers are, at the time of determination, owned by the
Company, directly or through one of more Subsidiaries.
3. Base Salary and Benefits.
(a) During the Employment Period, Executive's base salary shall
be $250,000 per annum (the "Base Salary"), which salary shall be payable in
regular installments in accordance with the Company's general payroll practices
and shall be subject to customary withholding. The Base Salary shall be subject
to adjustments following the end of each fiscal year during the Employment
Period to reflect changes in the national consumer price index during such
fiscal year. In addition, during the Employment Period, Executive shall be
entitled to participate in all of the Company's employee benefit programs for
which senior executive employees of the Company and its Subsidiaries are
generally eligible (the "Benefit Programs"), and Executive shall be entitled to
vacation time as Executive considers appropriate.
(b) The Company shall reimburse Executive for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses. During the Employment Period, the Company shall
at Executive's election either (i) pay Executive a car allowance not to exceed
$1000 per month or (ii) make available to Executive for his business use a
Company-owned car comparable to that which he is using for business purposes as
of November 1, 1997, which the Company shall replace when Executive considers
appropriate. During the Employment Period, the Company shall also reimburse
Executive for the cost of all club memberships for which the Executive was being
reimbursed by the Company's predecessor as of November 1, 1997.
(c) The Company shall award a bonus (the "Performance Bonus") to
Executive with respect to each fiscal year during the Employment Period in which
the Company achieves EBITDA equal to at least 90% of the amount set forth in the
Company's annual operating budget approved by the Board, as adjusted with the
mutual agreement of the Executive and the Board to account for any acquisition
by the Company during such year ("Budgeted EBITDA"), but, if the Company
achieves less than 90% of Budgeted EBITDA, the Company shall not be obliged to
award Executive any bonus. For the year ended December 31, 1998, however,
Budgeted EBITDA shall be the EBITDA projection for the year ended December 31,
1998 set forth on page 3 of the Confidential Information Memorandum, dated
September 1997 ("Offering Memo"), as such may be adjusted by the mutual
agreement of the Executive and the Board to account for any acquisition by the
Company during 1998. For fiscal years in which the Company's EBITDA equals or
exceeds 90% of Budgeted EBITDA, the Company shall award Executive a bonus equal
to a percentage of his Base Salary determined based upon the following schedule:
- 2 -
Percentage of Budgeted EBITDA Percentage of Base Salary
----------------------------- -------------------------
90-94.9 60
95-99.9 80
100-104.9 100
105-109.9 115
110-114.9 120
115 and up 125
The Performance Bonus will be paid by the Company to the Executive no later than
30 days after the Board receives the Company's final audited financial
statements for such fiscal year.
(d) In addition to the Base Salary and the Performance Bonus,
Executive shall purchase at the Xxxxxxxx Closing (as defined in the Stock
Purchase Agreement) 28,000 shares of Class B Non-Voting Common Stock of Holdings
for $28,000 (the "Executive Stock") pursuant to a stock purchase agreement,
dated as of the date hereof, by and among Holdings and the purchasers identified
therein (the "Stock Purchase Agreement").
(e) Except as otherwise provided in paragraph 3(f) below,
Executive's rights to the Executive Stock shall vest over the next five years in
accordance with the following schedule, if as of each such date Executive is
employed by the Company:
Cumulative Percentage of
Date Executive Stock Vested
----------------- ------------------------
The date hereof 11%
January 14, 1999 29%
January 14, 2000 47%
January 14, 2001 64%
January 14, 2002 82%
January 14, 2003 100%
For purposes of determining vesting under this paragraph 3(e) only, if Executive
is (i) terminated without Cause and without Company Good Reason or (ii) resigns
for Executive Good Reason (each as defined below), Executive shall be vested in
the greater of (x) one half of his Executive Stock or (y) the amount already
vested through the date the Employment Period terminates plus an additional 20%
of the Executive Stock.
(f) If Executive continues to be employed by the Company until
any date other than the dates specified in paragraph 3(e) above, prior to
January 14, 2003, the cumulative
- 3 -
percentage of Executive Stock vested as of such date shall be determined on a
pro-rata basis according to the number of days elapsed since the prior specified
date. Notwithstanding the foregoing, Executive's rights to the Executive Stock
shall be fully vested if (i) the Employment Period terminates because Executive
dies or becomes permanently disabled or incapacitated (as determined by the
Board in its reasonable good faith judgment) or (ii) a Change of Control or
Liquidity Event occurs prior to the termination of the Employment Period, in
each case on the date such event occurs. If there is a disagreement between the
Company and the Executive as to whether Executive is permanently disabled or
incapacitated for purposes of this paragraph or paragraph 4(a) below, the
determination shall be made by an independent qualified physician with a
national reputation mutually acceptable to the Board and Executive or
Executive's representative. All shares of Executive Stock which are not vested
as of the termination of the Employment Period shall be forfeited to the Company
and deemed canceled upon repayment to Executive of the original cost of those
Executive Stock.
4. Term.
(a) The Employment Period shall continue until the fifth
anniversary of the date hereof and year to year thereafter, unless either party
provides written notice of termination of the Employment Period at least 90 days
prior to the anniversary date of this Agreement (commencing with the fifth
anniversary date of this Agreement); provided that (i) the Employment Period
shall terminate prior to such date upon Executive's resignation, death or
permanent disability or incapacity (as determined by the Board in its reasonable
good faith judgment, or, if necessary, by an independent qualified physician
pursuant to paragraph 3(f) above), (ii) the Company may terminate the Employment
Period at any time prior to such date for Cause (as defined below) or without
Cause and (iii) Executive may terminate the Employment Period at any time. The
date on which the Employment Period terminates is the "Termination Date."
(b) If (i) the Company terminates the Employment Period without
Cause and without Company Good Reason, (ii) the Company terminates the
Employment Period for Company Good Reason (as defined below) or (iii) Executive
terminates the Employment Period for Executive Good Reason (as defined below),
Executive shall be entitled to receive his Base Salary and shall continue to
participate in the Benefit Programs until the first anniversary of such
termination except that, with respect to a termination pursuant to (i) above
that occurs before the third anniversary of the date of this Agreement,
Executive is entitled to Severance until the later of the first anniversary of
such termination or the third anniversary of the date hereof ("Severance").
However, notwithstanding the foregoing, Executive shall not be entitled to any
Severance unless Executive and the Company execute a mutual release in form and
content reasonably satisfactory to the Board and Executive.
(c) If the Employment Period is terminated by the Company for
Cause, or by Executive without Executive Good Reason, Executive shall be
entitled to receive his Base Salary through the Termination Date only and shall
not be entitled to any Severance.
(d) If the Employment Period is terminated by reason of
Executive's death or permanent disability or incapacity, Executive (or his
representatives) shall be entitled to receive
- 4 -
severance consisting of his Base Salary and shall continue to participate in the
Benefit Programs through the second anniversary of such termination.
(e) All of Executive's rights to bonuses under paragraph 3(c)
(if any) which would have become payable after the Termination Date if Executive
were still employed by the Company shall cease upon a termination in the
circumstances described in paragraphs 4(b)(ii), 4(b)(iii) or 4(c) above.
However, in the event of a termination in the circumstances described in
paragraph 4(b)(i) or paragraph 4(d) above, Executive shall be entitled to
receive an amount equal to the Performance Bonus that he would have been
entitled to receive if he were employed during the Severance Period (as defined
below) and the Company had achieved 100% of Budgeted EBITDA during such period.
If the Termination Date is a date other than the last day of a fiscal year, then
Executive is entitled to a Pro-rated Bonus for the final portion of the
Severance Period that is not a full year. "Pro-rated Bonus" shall mean the pro
rata amount (based on the number of days elapsed during such year) of the
Performance Bonus to which Executive would be entitled if Executive had worked
the entire period for which the Performance Bonus is being calculated.
5. Confidential Information. Executive acknowledges that the
information, observations and data obtained by him while employed by the Company
and its Subsidiaries (including those obtained while employed by The Xxxxxxxx
Group, Ltd. prior to the date of this Agreement and the acquisition of The
Xxxxxxxx Group, Ltd. by the Company) concerning the business or affairs of the
Company and any Subsidiary ("Confidential Information") are the property of the
Company or such Subsidiary. Therefore, Executive agrees that he shall not
disclose to any unauthorized person or use for his own purposes any Confidential
Information without the prior written consent of the Board, unless and to the
extent that the aforementioned matters become generally known to and available
for use by the public other than as a result of Executive's acts or omissions.
Executive shall deliver to the Company at the termination, or at any other time
the Company may request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documents and data (and copies thereof)
relating to the Confidential Information or the business of the Company or any
Subsidiary which he may then possess or have under his control.
6. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that in the course of his employment
with the Company he shall become familiar, and during his employment with The
Xxxxxxxx Group, Ltd. he has become familiar, with the Company's trade secrets
and with other Confidential Information concerning the Company and its
predecessors and its Subsidiaries and that his services have been and shall be
of special, unique and extraordinary value to The Xxxxxxxx Group, Ltd., the
Company and its Subsidiaries. Therefore, Executive agrees that during (i) the
Employment Period, (ii) the Severance Period, and (iii) the Additional
Noncompete Period (as defined below) ((i), (ii) and (iii), collectively, the
"Noncompete Period"), he shall not directly or indirectly own any interest in,
manage, control, participate in, consult with, render services for, or in any
manner engage in any business competing with the businesses of the Company or
its Subsidiaries, as such businesses exist or are in process on the date of the
termination of Executive's employment, within any state in the United States in
which the Company or its Subsidiaries engage in such businesses at the time of
termination and all states
- 5 -
located adjacent to such states. Nothing herein shall prohibit Executive from
being a passive owner of not more than 5% of the outstanding stock of any class
of a corporation which is publicly traded, so long as Executive has no active
participation in the business of such corporation. Executive may elect at any
time to waive or shorten the Severance Period. Such waiver or reduction of all
severance payments pursuant to paragraph 4 above shall reduce the Noncompete
Period by the period of time for which Executive elects to reduce the Severance
Period.
(b) During the Noncompete Period (and, in the event of
termination pursuant to 4(b)(i), for one year thereafter), Executive shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee of the Company or any Subsidiary to leave the employ of the Company
or such Subsidiary, nor shall Executive make any intentionally disparaging
remarks about the Company, its officers and directors or its stockholders to any
such employee, (ii) hire any person who was an employee of the Company or any
Subsidiary at any time during the Employment Period (except that the foregoing
shall not prohibit the employment of any individuals (A) who have ceased to be
employed by the Company for at least three months prior to the first time such
individuals and Executive (directly or indirectly through another entity)
discussed employment and (B) who are responding to a general help wanted
advertisement or who have submitted an application through a recruiting or
personnel placement company, provided that such individual has taken such
actions without any encouragement of Executive (directly or indirectly), or
(iii) induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company or any Subsidiary to cease
doing business with the Company or such Subsidiary nor shall Executive make any
intentionally disparaging remarks about the Company or its Subsidiaries to any
customer, supplier, licensee, licensor, franchisee or other business relation.
(c) If, at the time of enforcement of this paragraph 6, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. Executive agrees that the restrictions
contained in this paragraph 6 are reasonable.
(d) In the event of the breach or a threatened breach by
Executive of any of the provisions of this paragraph 6, the Company, in addition
and supplementary to other rights and remedies existing in its favor, may apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof (without posting a bond or other security). In
addition, in the event of a breach or violation by Executive of this paragraph
6, the Noncompete Period shall be tolled until such breach or violation has been
duly cured.
7. Investment by Executive. Executive is also purchasing 79,668.26
shares of Holdings' Series A Preferred Stock, 2,447 shares of Holdings' Class A
Voting Common Stock and 107,097 shares of Holdings' Class A Non-Voting Stock for
an aggregate purchase price of $8,076,369.50 pursuant to the Stock Purchase
Agreement (the "Executive Securities").
8. Put. Upon the occurrence of a Put Event (as defined below),
Executive may (but shall not be obligated to) require Holdings to repurchase all
(but not less than all) of the
- 6 -
Executive Securities then held by the Executive pursuant to the terms and
conditions in this paragraph 8 (the "Put"). Upon the occurrence of a Put Event,
Executive (or, in the event of his death or disability, his representative) may
exercise the Put by delivering written notice within 90 days following the Put
Event. Upon the exercise of the Put, the purchase price for the Executive
Securities shall be an amount in cash equal to the Fair Market Value (as defined
below) of such securities (computed as of the date of the Put Event). If on the
date of the Put Event none of Holdings' equity securities are listed on any
securities exchange or quoted in the Nasdaq National Market System, then, within
10 business days after Fair Market Value has been finally determined by the
investment bank retained to do so, the Executive may withdraw his Put request
and his rights under this paragraph 8 shall thereafter expire. The closing of
the purchase of the Executive Securities will take place within twelve months of
the date on which Executive exercises the Put or in the event of death or
disability of Executive, within 90 days of the date on which Executive's
representative exercises the Put; however, if the Put Event (other than one
resulting from death or disability) occurs prior to the second anniversary of
this Agreement, the closing of the purchase of the Executive Securities will not
take place until the later of the second anniversary of this Agreement or twelve
months after the Put Event. The Company shall pay Executive interest at the same
interest rate being paid by the Company with respect to its senior credit
facility on the Fair Market Value of Executive Securities from the date on which
Executive delivers notice that he is exercising the Put until the closing of the
purchase of the Executive Securities. If the purchase of the Executive
Securities is not completed within twelve months of the exercise of the Put (or,
if the one resulting from death or disability) occurs prior to the second
anniversary, the later of the second anniversary of this Agreement or 12 months
after the Put Event), Executive may require that Holdings consummate Sale of the
Company (as defined in the Stockholders Agreement), a recapitalization or
another transaction to produce liquidity for the Executive within 90 days of his
demand therefor; provided, however, except in the case of death or disability,
Holdings shall not be required to effect a Sale of the Company,
recapitalization, or other such transaction prior to the second anniversary of
the date hereof.
9. Definitions.
"Additional Noncompete Period" means (i) three years in the event of
termination for Cause or by the Executive without Executive Good Reason, (ii)
two years in the event of resignation by the Executive for Executive Good Reason
or termination by the Company for Company Good Reason, or (iii) one year in the
event of termination by the Company without Cause or without Company Good
Reason.
"Brickmans" has the meaning given to such term in the Stockholders
Agreement.
"Cause" means (i) the commission of a felony or a crime involving
moral turpitude or the commission of any other willful act or omission involving
fraud with respect to the Company or any of its Subsidiaries or that amounts to
a breach of his duty of loyalty as an officer and director of the Company and
its Subsidiaries, (ii) conduct bringing the Company or any of its Subsidiaries
into substantial public disgrace or disrepute, (iii) substantial and repeated
willful failure to perform duties as reasonably directed by the Board, if not
cured within 5 business days after receiving written notice from the Board, or
(iv) willful misconduct with respect to the Company or any of its Subsidiaries.
- 7 -
"Change of Control" means any sale, transfer or issuance or series of
sales, transfers and/or issuances of Common Stock by the Company or any holders
thereof which results in any Person or group of Persons (as the term "group" is
used under the Securities Exchange Act of 1934), other than the CIVC Group, the
FCEC Group, the Brickmans or their respective Permitted Transferees or
affiliates (all as defined in the Stockholders Agreement), owning more than 50%
of the Common Stock outstanding at the time of such sale, transfer or issuance
or series of sales, transfers and/or issuances or having the power to elect or
designate a majority of directors of the Company.
"Company Good Reason" means the Company fails to achieve at least 90%
of EBITDA targets detailed in the Offering Memo (with the EBITDA targets set
forth therein to be adjusted for any acquisitions made after the date hereof
that are acceptable to the Executive and the Board) for two consecutive years
during the Employment Period.
"EBITDA" means, for any period, an amount equal to the sum of the
Company's consolidated net income, plus the provision for taxes for such period
based on income or profits (including the amount of any permitted tax
distributions), plus interest expense, plus depreciation and amortization
charges reducing the Company's consolidated net income.
"Executive Good Reason" means (i) Executive is removed as President
and CEO or as assigned duties inconsistent with those typically assigned to a
President and CEO without his consent, (ii) an actual decrease in the Base
Salary and benefits, except for a decrease which is across the board and uniform
(in amount and percentage) and less than 15% of such Base Salary or (iii) the
failure of the Company to move its headquarters to a location mutually
acceptable to Executive and the Board, if, after the second anniversary of the
date hereof, Executive requests that Company headquarters be moved.
"Fair Market Value" of any security of the Company means:
(i) the average of the closing prices of the sales of such security
on all securities exchanges on which such security may at the time be
listed, or, if there have been no sales on any such exchange on any day,
the average of the highest bid and lowest asked prices on all such
exchanges at the end of such day, or, if on any day such security is not so
listed, the average of the representative bid and asked prices quoted in
the Nasdaq System as of 4:00 p.m., New York time or any combination of the
foregoing which most accurately reflects value, in each such case averaged
over a period of 21 days consisting of the day as of which the Fair Market
Value is being determined and the 20 consecutive business days prior to
such day; or
(ii) with respect to any security which is not listed on any
securities exchange or quoted in the Nasdaq System for the entire 21-day
averaging period specified above, the fair value of such security
determined by an investment bank with a national reputation that is
mutually acceptable to the Board and Executive. If either party does not
agree with the determination by such banker of the Fair Market Value of the
Executive Securities, that party may retain another investment banker with
a national reputation reasonably acceptable to the other party to make a
second determination, in which event Fair Market Value shall be the
- 8 -
average of the two determinations. The Company and the Executive shall each
pay one-half of all investment banking fees and expenses incurred in
determining Fair Market Value, except that if Executive withdraws his Put
request, as permitted under paragraph 8 above, Executive shall bear 100% of
such investment banking fees and expenses.
In determining Fair Market Value of any securities hereunder, no
discount will be assessed for the fact that the securities being valued
represent a minority interest in the Company or are subject to contractual
limitations on resale. If the Company does not have a security listed on
any securities exchange or quoted in the Nasdaq system, the enterprise
value of the Company as a privately-held entity shall be determined and the
Fair Market Value shall be equal to the proceeds that would be distributed
with respect to the Executive Securities upon a liquidation or dissolution
of the Company (after paying all liabilities and expenses) assuming the
entire Company were sold at its enterprise value).
"Liquidity Event" means (i) a sale for cash of all or substantially
all of the assets of the Company to an Independent Third Party (as defined in
the Stockholders Agreement), and (ii) a recapitalization or public offering or
other event in connection with which all or substantially all of the Company's
outstanding Preferred Stock is redeemed.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Put Event" means (i) termination by the Company without Cause and
without Company Good Reason, (ii) termination by reason of death, disability or
incapacity of Executive or (iii) termination by Executive for Executive Good
Reason.
"Severance Period" means the period during which Executive is entitled
to receive severance payments pursuant to paragraph 4.
"Stockholders Agreement" means that certain Stockholders Agreement,
dated January 14, 1998, by and among Holdings, the Stockholders of The Xxxxxxxx
Group, Ltd. as listed on Schedule A thereto, Continental Illinois Venture
Corporation and First Chicago Equity Capital.
10. Executive's Representations. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
- 9 -
11. Survival. Paragraphs 3 through 6, paragraphs 8 through 9 and
paragraphs 11 through 19 shall survive and continue in full force in accordance
with their terms notwithstanding any termination.
12. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed by first class mail,
return receipt requested, to the recipient at the address below indicated:
Notices to Executive:
Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxxx, XX 00000
Notices to the Company:
The Xxxxxxxx Group, Ltd.
000 X. Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
With copies to:
Continental Illinois Venture Corporation
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
First Chicago Equity Capital
Three First Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
- 10 -
Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, P.C.
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 mailed.
13. 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.
14. Complete Agreement. This Agreement, the Purchase Agreement, and
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.
15. 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.
16. 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.
17. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his obligations hereunder without the prior written
consent of the Company.
18. Choice of Law. All 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 Commonwealth of Pennsylvania, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the
Commonwealth of Pennsylvania or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the Commonwealth of
Pennsylvania.
19. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company and
Executive, and no course of
- 11 -
conduct or failure or delay in enforcing the provisions of this Agreement shall
affect the validity, binding effect or enforceability of this Agreement.
* * * * *
- 12 -
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
THE XXXXXXXX GROUP, LTD.
By /s/ Xxxxxxxx X. Xxxxxxxx, Xx.
--------------------------------
Its PRESIDENT
--------------------------------
XXXXXXXX HOLDINGS CORP.
By /s/ [ILLEGIBLE]
--------------------------------
Its PRESIDENT
--------------------------------
/s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
- 13 -
