EMPLOYMENT AGREEMENT
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This Agreement, originally made as of the 27th day of
November, 1996 between Statia Terminals Group N. V., a Netherlands Antilles
corporation, having a registered office at L.B. Xxxxxxxxxx 0, Xxxxxxx,
Xxxxxxxxxxx Antilles (the "Company"); Statia Terminals, Inc., a Delaware
corporation, with offices at 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx Xxxxx,
Xxxxxxx 00000 (the "Subsidiary"); and XXXXX X. XXXXXXX, an individual with an
address of 00000 Xxxxx Xxxxx Xxxx. Xxxxx, Xxxxx Xxxxxxx, Xxxxxxx 00000 (the
"Employee"), is hereby amended and restated, effective April 28, 1999.
R E C I T A L S
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WHEREAS, the Company has entered into a certain Amended and
Restated Stock Purchase and Sale Agreement dated as of November 4, 1996, among
the Company and certain other corporations (the "Purchase and Sale Agreement")
pursuant to which the Company acquired, directly or indirectly, all of the
issued and outstanding shares of the common stock of the Subsidiary;
WHEREAS, the Employee has been and is presently in the employ
of the Subsidiary and is presently serving as President and Chief Executive
Officer of the Subsidiary;
WHEREAS, the Employee possesses an intimate knowledge of the
business and affairs of the Subsidiary and its policies, procedures, methods
and personnel;
WHEREAS, the Company desires to secure the continued services
and employment of the Employee on behalf of the Subsidiary, and the Employee
desires to be employed by the Subsidiary, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto, each intending to be legally
bound hereby, agree as follows:
1. Employment. The Company hereby agrees to cause the
Subsidiary to employ and continue to employ the Employee as President and Chief
Executive Officer of the Subsidiary and the Subsidiary hereby agrees to employ
and continue to employ the Employee as President and Chief Executive Officer,
and the Employee accepts such employment for the term of the employment
specified in Section 3 hereof (the "Employment Term"). During the Employment
Term, the Employee shall serve as the President and Chief Executive Officer of
the Subsidiary, performing such duties and having such authority as shall be
reasonably required of an executive-level employee of the Subsidiary, reporting
only to the Board of Directors of the Subsidiary (the "Board"), and shall have
such other powers and perform such other additional executive duties as may
from time to time be assigned to him by the Board. Such duties being performed
and such authority being exercised shall be at least commensurate with the
duties being performed and authority being exercised by the Employee
immediately prior to the date of this Agreement.
2. Performance. The Employee will serve the Subsidiary
faithfully and to the best of his ability and will devote substantially all of
his time, energy, experience and talents during regular business hours and as
otherwise reasonably necessary to such employment, to the exclusion of all
other business activities; provided however, that such exclusion shall not
prohibit the Employee from attending to the Employee's personal matters and/or
financial and investment affairs (which financial or investment affairs shall
not conflict with the business of the Subsidiary or the Company and is subject
to the provisions of Section 12 hereof) during regular business hours as may
from time to time be reasonably necessary so long as attendance to such matters
and affairs does not interfere with the performance of the Employee's duties
hereunder.
3. Employment Term. Subject to earlier termination pursuant
to Section 7 hereof the Employment Term shall begin on March 31, 1999, and
continue until March 31, 2002; provided, however, that beginning on March 31,
2000, and on each anniversary of such date, the Employment Term shall
automatically renew for an additional one year beyond the end of the then
current term, unless, at least 90 days before March 31, 2000, or March 31 of
any succeeding year, either party gives notice to the other of his or its
desire to terminate this Agreement, in which case the Employment Term shall
terminate as of March 31, 2002, or the end of the then-current three-year term,
as applicable.
4. Compensation.
(a) Salary. During the Employment Term, the Company
shall cause the Subsidiary to pay the Employee a base salary, payable in equal
bi-weekly installments, subject to withholding and other applicable taxes, at
an annual amount of not less than two hundred ninety thousand U.S. Dollars
($290,000). Such base salary shall be reviewed by the Board in January, 2000,
and at least annually thereafter, and shall be increased annually, effective
January 1 of the applicable year, but may not be reduced, from the amount in
effect for the immediately preceding year, at an annual rate not less than the
annual rate of increase in the Consumer Price Index as measured by the United
States Department of Labor, Bureau of Labor Statistics (the "BLS"), All Items,
Consumer Price Index for All Urban Consumers (the "CPI-U"), and any such
increased base salary shall be the Employee's "base salary" for purposes of
this Agreement. In determining the rate of such annual increase, the base shall
be the CPI-U for the first day of the calendar year preceding the year for
which the base salary increase is being calculated and such base shall be
compared with the CPI-U as of the last day of such year. If the CPI-U is no
longer published in substantially its current form by the BLS, then a successor
index shall be substituted by mutual agreement of the Company and the Employee.
(b) Cash Incentive Bonus. For the calendar year 1999
and for each subsequent calendar year, or portion thereof, during the
Employment Term, a reasonable target EBITDA (as defined below) for each
calendar year and a target bonus for the Employee for such calendar year shall
be submitted to the Board by the chief executive officer, or the highest
ranking officer then in service, of the Subsidiary (the "CEO") and agreed to by
the Board and the CEO, and as soon as practicable after the end of each such
calendar year as the actual EBITDA achieved for such calendar year has been
determined, the Company shall cause the Subsidiary to pay to the Employee a
lump-sum bonus determined as described in this Section 4(b). No portion
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of such bonus will be paid if less than 85% of the target EBITDA is achieved in
the applicable calendar year. Payment of 85% of the target bonus would be made
if 85% of the target EBITDA is achieved, and if the actual EBITDA for the
applicable calendar year exceeds 85% of the target EBITDA for such year, the
percentage of the target bonus paid shall be the percentage of the target
EBITDA so achieved in such year. For example, if 92% of the target EBITDA is
achieved in a calendar year, 92% of the target bonus would be paid for such
year, or if 160% of the target EBITDA is achieved in a calendar year, 160% of
the target bonus would be paid for such year. If during the course of any
calendar year, the Company shall sell or otherwise dispose of five percent (5%)
or more of the total assets of the Company and its subsidiaries, the CEO and
the Board shall establish a revised EBITDA target for such calendar year after
receiving management's recommendation.
"EBITDA" shall mean for any period, the (a) net income (or
net loss) of the Company and its subsidiaries plus (b) the sum of (i) interest
expense, (ii) income tax expense, (iii) depreciation expense, (iv) amortization
expense, (v) extraordinary or unusual losses deducted in calculating net income
(or net loss), and (vi) other non-cash charges less (c) extraordinary or
unusual gains and other non-cash income items added in calculating net income
(or net loss), in each case determined in accordance with generally accepted
accounting principles at the end of each such calendar year for the Company and
its subsidiaries on a consolidated basis, and plus (d) any fees paid to or
expenses incurred by the Company pursuant to any management or similar
agreement between the Company and any stockholder holding 50 percent or more of
the capital stock of the Company or an Affiliate thereof.
(c) Employee Benefits. The Employee shall be
entitled to and shall receive employee benefits or participate in plans and
programs maintained by or on behalf of the Company or the Subsidiary which are
otherwise made available to employees of the Subsidiary, including but not
limited to, medical, health, accident and disability plan, cafeteria plan,
retirement plan and 401(k) plan.
(d) Additional Benefits. In addition to the other
compensation payable to the Employee hereunder, during the Employment Term, the
Company shall cause the Subsidiary to furnish at its expense an automobile, or
a reasonable allowance in lieu thereof at the option of the Subsidiary, office,
reasonable secretarial services, club membership, professional association
dues, continuing professional education expenses and such other supplies,
equipment, facilities, services and emoluments appropriate to such Employee's
position. Also, the Subsidiary has purchased from The CBI Industries Inc.
Supplemental Survivors' Benefit, Executive Life Insurance and Benefit
Restoration Trust at cash surrender value the collateral assignment of the
Executive Life Insurance Policy on the Employee, and the Subsidiary shall pay
the premiums on such policy during the Employment Term pursuant to a separate
agreement dated the date hereof between the Employee and the Subsidiary
relating to such policy.
(e) Paid Time Off. Employee shall be entitled to
paid vacation, holidays, and sick leave during each calendar year of employment
in accordance with policies of the Subsidiary. Vacation may only be taken at
times mutually convenient for the Subsidiary and the Employee. The Subsidiary
may elect to pay out all accrued and unused vacation time as of
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December 31 of any calendar year in January of the following calendar year.
Such pay out will be at the prevailing rate of annual compensation at the end
of the immediately preceding calendar year. No more than four weeks vacation
time may be accrued at any time.
5. Expenses. The Employee shall be entitled to be reimbursed
by the Subsidiary for all reasonable expenses incurred by him in connection
with the performance of his duties hereunder in accordance with policies
established by the Board from time to time and upon receipt of appropriate
documentation.
6. Secret Processes and Confidential Information. For the
Employment Term and thereafter (a) the Employee will not divulge, transmit or
otherwise disclose (except as legally compelled by court order, and then only
to the extent required, after prompt notice to both the Company and the
Subsidiary of any such order), directly or indirectly, other than in the
regular and proper course of business of the Company and/or the Subsidiary, any
confidential knowledge or information with respect to the operations or
finances of the Subsidiary or the Company or any of their subsidiaries or
Affiliates, or with respect to confidential or secret processes, services,
techniques, customers or plans with respect to the Company and/or the
Subsidiary, and (b) the Employee will not use, directly or indirectly, any
confidential information for the benefit of anyone other than the Company
and/or the Subsidiary; provided, however, that the Employee has no obligation,
express or implied, to refrain from using or disclosing to others any such
knowledge or information which is or hereafter shall become available to the
public other than through disclosure by the Employee.
To the greatest extent possible, any Work Product (as
hereinafter defined) shall be deemed to be "work made for hire" (as defined in
the Copyright Act, 17 U.S.C.A. ss. 101 et seq., as amended) and owned
exclusively by the Subsidiary. The Employee hereby unconditionally and
irrevocably transfers and assigns to the Subsidiary all right, title and
interest the Employee may currently have or in the future may have by operation
of law or otherwise in or to any Work Product, including, without limitation,
all patents, copyrights, trademarks, service marks and other intellectual
property rights. The Employee agrees to execute and deliver to the Subsidiary
any transfers, assignments, documents or other instruments which the Company
may deem necessary or appropriate to vest complete title and ownership of any
Work Product, and all rights therein, exclusively in the Subsidiary.
During the term of this Agreement and thereafter, Employee
shall not take any action to disparage or criticize to any third parties any of
the services of the Company and/or the Subsidiary or to commit any other action
that injures or hinders the business relationships of the Company and/or the
Subsidiary.
All files, records, documents, memorandums, notes or other
documents relating to the business of Company and/or the Subsidiary, whether
prepared by Employee or otherwise coming into his possession in the course of
the performance of his services under this Agreement, shall be the exclusive
property of Company and shall be delivered to Company and not retained by
Employee upon termination of this Agreement for any reason whatsoever.
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7. Termination.
(a) Mutual Agreement. The employment of the Employee
hereunder may be terminated at any time by the mutual agreement of the parties
hereto.
(b) Termination for Substantial Cause. The
Subsidiary may at any time upon thirty (30) days prior written notice to the
Employee, terminate the employment of the Employee for Substantial Cause (as
hereinafter defined).
(c) Termination by the Employee The Employee shall
be entitled to terminate his employment without being in violation of any
provision of this Agreement upon 30 days prior written notice to the Subsidiary
(i) for Good Reason; (ii) upon "normal retirement" under any then-effective
plan or policy of the Subsidiary, or, in the absence of any such plan or
policy, under the terms of the CBI Pension Plan, as amended effective August 1,
1996, as if the Employee participated in such plan (whether or not he actually
so participated); or (iii) at any time and for any reason after the Employee
has attained the age of sixty (60) years.
(d) Termination by Death or Disability. The
employment of the Employee shall terminate upon the death of the Employee or
the inability of the Employee to perform his duties as a result of physical or
mental disability for an aggregate of 90 days in any 180 day period, as
determined in good faith by the Board ("Disability").
8. Definitions. For purposes of this Agreement:
(a) "Business" shall mean the business of owning,
leasing or operating petroleum and other bulk liquid blending, trans-shipment,
storage or processing facilities or providing related terminaling services such
as supply of bunker fuel for vessels, emergency and spill response services;
brokering of product trades and vessel representation.
(b) "Substantial Cause" shall mean:
(i) Conviction of the Employee of a crime
constituting a felony in the jurisdiction in which
committed, or for any other criminal act against the
Subsidiary or the Company involving dishonesty or willful
misconduct intended to injure the Subsidiary or the Company
or any Affiliate of either of them in any substantial way
(whether or not a felony and whether or not criminal
proceedings are initiated);
(ii) Failure or refusal of the Employee in any
material respect to perform his obligations under this
Agreement or the duties of his employment or to follow the
lawful and proper directives of the Board, other than by
reason of a Disability provided such duties or directives
are consistent with this Agreement, and such failure or
refusal continues uncured for a period of thirty (30) days
after written notice thereof from the Subsidiary to the
Employee which specifies (i) the nature of such failure or
refusal, and (ii) the reasonable action of the Employee
necessary for cure; or
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(iii) Any willful or intentional misconduct of
the Employee (A) in violation of any written policy of the
Subsidiary providing for termination of employment in the
event of violation of such policy or (B) committed for the
purpose, or having the reasonably foreseeable effect, of
injuring in a substantial way the Company, the Subsidiary,
or any Affiliate of either of them, or their respective
businesses or reputations, including, without limitation,
causing the Subsidiary or any of its Affiliates to violate a
state or federal law relating to the workplace environment.
(c) "Good Reason" shall mean:
(i) a significant reduction in the authorities,
duties, or responsibilities of Employee;
(ii) assignment to an office location which is
more than 100 miles from the office location of the Employee
as of the date of this Agreement;
(iii) material breach of this Agreement by the
Subsidiary or the Company which is not cured within thirty
(30) days after written notice of such breach is given by
the Employee to the Company and the Subsidiary; or
(iv) any failure of any successor to all or
substantially all of the assets or business of the Company
or the Subsidiary, by purchase, merger, consolidation or
otherwise, to fully assume the obligations of the Company or
the Subsidiary, as applicable, under this Agreement.
As applied to the Employee, the parties hereto agree that any position other
than President and Chief Executive Officer of the Subsidiary, reporting only to
the Board, and to whom all other employees report, directly or indirectly,
would constitute a significant reduction in the authorities, duties or
responsibilities of the Employee.
(d) "Change in Control" shall mean the occurrence of
the following: Xxxxxx Xxxxxx Partners II L.P. and its Affiliates and their
partners ("CHP") cease to own or control at least fifty percent (50%) of the
aggregate number of the Company's outstanding class A common shares and class B
subordinated shares owned or controlled, directly or indirectly, by such
Persons as of the effective date of the amendment and restatement of this
Agreement; provided, however, that, the foregoing to the contrary
notwithstanding, in no event shall any Change in Control be deemed to occur,
for purposes of this Agreement, as the direct or indirect result of (i) the
occurrence of any of the transactions contemplated under the Purchase and Sale
Agreement, (ii) a public distribution of any such Company shares owned by CHP
(including any distribution of such shares to the partners of Xxxxxx Xxxxxx
Partners II L.P.), or (iii) a sale or other distribution to any Competing
Entity, in one or more transactions, by CHP of not more than seven percent (7%)
of the aggregate number of the Company's outstanding class A common shares and
class B subordinated shares (provided, however, that a sale or distribution of
more than seven percent (7%) of such shares to a Competing Entity will be
deemed to be a Change in Control).
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(e) "Affiliate" shall mean, with respect to any
Person, any entity that directly or indirectly through one or more
intermediaries controls, is controlled by or is under common control with such
Person.
(f) "Person" shall mean any corporation,
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or other entity or organization.
(g) "Work Product" shall mean work product,
property, data documentation or information of any kind relating to the
Business, prepared, conceived, discovered, developed or created by the Employee
for the Subsidiary or any of the Subsidiary's Affiliates, clients or customers
while the Employee is employed by the Subsidiary.
(h) "Disability" shall have the meaning specified in
Section 7(d) hereof.
9. Insurance and Indemnification.
(a) Life Insurance. The Subsidiary may purchase
insurance on the life of the Employee, and if it does so, the Employee shall
cooperate fully by performing all the requirements of the life insurer which
are necessary conditions precedent to the issuance of the life insurance policy
issued by it.
(b) Directors and Officers Insurance and
Indemnification. The Subsidiary shall provide directors and officers insurance
covering the Employee for events occurring during the Employment Term on terms
at least as favorable as coverage for Directors of the Company, and the
Subsidiary shall provide indemnification to the Employee to the full extent
allowed by the law of its jurisdiction of incorporation.
10. Severance
(a) If the Employee's employment is terminated by
the Subsidiary without Substantial Cause (including, without limitation, upon
termination of this Agreement following notice thereof by the Company or the
Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason,
then, without further liability of the Subsidiary or the Company, except for
their obligations pursuant to this Section 10(a) and such rights and benefits
of participation of or in respect of the Employee under employee benefits
plans, programs and arrangements of the Company, the Subsidiary and their
Affiliates, in accordance with the terms and provisions of such plans, programs
and arrangements, the Employee shall be entitled to (i) medical and dental
benefits as provided immediately prior to the date of termination which shall
continue for the Severance Period (as hereinafter defined) (which shall be
terminated sooner to the extent provided by another employer) and (ii)
severance compensation for the Severance Period following any such termination,
payable in equal monthly installments, subject to withholding and other
applicable taxes, at an annual rate equal to the Employee's base salary for the
year of termination. In addition, the Employee will be entitled to a pro rata
portion of the bonus compensation referred to in Section 4(b) hereof for the
year of termination only as and
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when ordinarily determined for such year. For the purposes of this Agreement,
"Severance Period" shall mean a period commencing on the date of any such
termination and ending on the expiration of the Employment Term (determined as
of the date of such termination without giving effect to such termination);
provided, however, that the Severance Period shall not be less than one year.
(b) If the Employee's employment is terminated for
any other reason, then without further liability of the Subsidiary or the
Company, the Employee shall be entitled to the salary, expenses and benefits
accrued to the termination date; provided, however, the Employee shall be
entitled to the bonus referred to in Section 4(b) hereof only in the case of
termination by the Employee of his employment pursuant to Section 7(c) hereof.
11. Notice. Any notices required or permitted hereunder shall
be in writing, signed and shall be deemed to have been given when personally
delivered or when mailed, certified or registered mail, postage prepaid, to the
following addresses:
If to the Employee:
Xxxxx X. Xxxxxxx
00000 Xxxxx Xxxxx Xxxx. Xxxxx
Xxxxx Xxxxxxx, XX 00000
If to the Subsidiary:
Statia Terminals, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
With a copy to:
Xxxxxx Xxxxxx Partners II, L.P.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
and a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
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If to the Company:
Statia Terminals Group N. V.
c/o Statia Terminals Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
With a copy to:
Xxxxxx Xxxxxx Partners II, L.P.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
and a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Each of the Employee, the Subsidiary and the Company may
change its address as for purposes of this Section by sending notice to the
other parties.
12. Non-Competition. The Employee shall not, at any time
during the Employment Term and for a period of twelve months thereafter,
directly or indirectly, except where specifically contemplated by the terms of
his employment or this Agreement, (a) be employed by, engage in or participate
in the ownership, management, operation or control of, or act in any advisory
or other capacity for, any Competing Entity which conducts its business within
the Territory (as the terms Competing Entity and Territory are hereinafter
defined); provided, however, that notwithstanding the foregoing, the Employee
may make solely passive investments in any Competing Entity the common stock of
which is publicly held and of which the Employee shall not own or control,
directly or indirectly, in the aggregate securities which constitute 5% or more
of the voting rights or equity ownership of such Competing Entity; or (b)
solicit or divert any business or any customer from the Subsidiary or any
Affiliate of the Subsidiary or assist any person, firm or corporation in doing
so or attempting to do so; or (c) cause or seek to cause any person, firm or
corporation to refrain from dealing or doing business with the Subsidiary or
any Affiliate of the Subsidiary or assist any person, firm or corporation in
doing so. Notwithstanding any other provision of this Agreement to the
contrary, if the Employee's employment hereunder terminates under any
circumstances and there occurs a Change in Control (whether before or after
such termination of employment), the Employee shall thereupon automatically
cease to be bound by any covenants set forth in this Section 12.
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For purposes of this Section 12, (i) the term "Competing
Entity" shall mean any Person which presently or hereafter during the term
hereof is materially engaged in the Business; and (ii) the term "Territory"
shall mean the Caribbean and the area within a three hundred mile radius of (a)
the terminal facility operated by an Affiliate of the Subsidiary at Point
Xxxxxx, Nova Scotia, and (b) any terminal hereafter operated by the Subsidiary
or any Affiliate of the Subsidiary.
13. General.
(a) Governing Law; Captions. The terms of this
Agreement shall be governed by and construed under the laws of the State of
Florida. Paragraph and Section captions used herein are for convenience of
reference only, and shall not in any way affect the meaning or interpretation
of this Agreement.
(b) Assignability. The Employee may not assign his
interest in or delegate his duties under this Agreement. Notwithstanding
anything else in this Agreement to the contrary, the Subsidiary may assign this
Agreement and all rights and obligations of the Subsidiary hereunder shall
inure to the benefit of and bind the assignee or any person, firm or
corporation succeeding to all or substantially all of the business or assets of
the Subsidiary by purchase, merger or consolidation.
(c) Dispute Resolution. With the exception of the
Company's or the Subsidiary's right to elect to seek injunctive relief pursuant
to paragraph (g) of this Section 13, in the event of any dispute between either
the Company or the Subsidiary and the Employee arising out of or relating to
this Agreement or its termination or any other aspect of Employee's employment,
the parties hereby agree to submit such dispute to a non-binding mediation
under the American Arbitration Association's National Rules for the Resolution
of Employment Disputes; Arbitration and Mediation Rules (the "Rules") within
sixty (60) days of notice from any one of the parties to another. Unless the
parties can agree on a mediator within thirty (30) days of such notice,
mediation shall proceed pursuant to the Rules. In the event any such dispute is
not resolved by mediation, any party hereto may initiate an action or claim to
enforce any provision or term of this Agreement. Each party shall bear its or
his own costs and expenses (including attorney's fees) associated with any
mediation, action, or claim.
(d) Binding Effect. This Agreement is for the
employment of Employee, personally, and the services to be rendered by him must
be rendered by him and no other person. This Agreement shall be binding upon
and inure to the benefit of the Company, the Subsidiary, and the Employee and,
as the case may be, their respective successors and assigns, personal
representatives, heirs and legatees.
(e) Entire Agreement; Modification. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and may not be modified or amended in any way except in
writing by the parties.
(f) Duration. Notwithstanding the Employment Term
hereunder, this Agreement shall continue for so long as any obligations remain
under this Agreement, including
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without limitation any obligations of the Company or the Subsidiary under
Sections 9(b), 10 or 13 of this Agreement.
(g) Survival. The covenants set forth in Sections 6
and 12 of this Agreement shall survive and shall continue to be binding upon
Employee notwithstanding the termination of this Agreement for any reason
whatsoever. The covenants set forth in Section 6 and Section 12 of this
Agreement shall be deemed and construed as separate agreements independent of
any other provision of this Agreement. The existence of any claim or cause of
action by Employee against Company and/or Subsidiary, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by Company or Subsidiary of any or all covenants. It is expressly agreed that
the remedy at law for the breach of any such covenant is inadequate and that
injunctive relief shall be available to prevent the breach or any threatened
breach thereof.
(h) Severability. In case any provision in this
Agreement shall be held invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof will not in any
way be affected or impaired thereby and the parties shall in good faith agree
on a modification of the invalid, illegal or unenforceable provision which
renders it valid, legal or enforceable (as the case may be) and which as
closely as possible reflects the original intent of the parties.
(i) Guaranty of Company. The Company hereby
unconditionally guarantees to Employee the full and timely performance by
Subsidiary of its obligations under this Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have hereunto executed this Agreement the day and year first
written above.
Statia Terminals, Inc.
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title:
Statia Terminals Group N.V.
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title:
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
EMPLOYEE
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
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