Exhibit 10.17
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made on the 30th day of
September, 2002, by and between MORO/RADO ACQUISITION CORP., a Pennsylvania
corporation (the "Company"), and XXXXXXX X. XXXX, an individual ("Rado").
Background
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Rado is the President and sole shareholder of Rado Enterprises, Inc., a
Pennsylvania corporation ("Seller"), a mechanical contracting company which was
engaged in various plumbing, heating, ventilation and air conditioning projects
for commercial, industrial and institutional buildings located in northeastern
and central Pennsylvania. Pursuant to an Asset Purchase Agreement dated July 31,
2002, by and between the Company, Seller, and Rado (the "Asset Purchase
Agreement"), the Company acquired substantially all of the operating assets of
Seller as of the date hereof (the "Sale"). The Company and Rado have agreed to
execute and deliver this Agreement at the time of such Sale.
Under the Asset Purchase Agreement, the Company has agreed to assume any
and all obligations of Seller under the Existing Nonassignable Construction
Contracts and Existing Contract Bonds
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(as such terms are defined in the Asset Purchase Agreement). Since Seller, of
which Rado is the sole shareholder, remains obligated after the Sale under the
Existing Nonassignable Construction Contracts and the Existing Contract Bonds,
Rado has an interest in controlling the quality of the work performed by the
Company under, and in the Company satisfactorily completing the Existing
Nonassignable Construction Contracts in order to discharge Seller's obligations
under the Existing Nonassignable Construction Contracts and the Existing
Contract Bonds.
The Company may not be able to satisfactorily complete the Existing
Nonassignable Construction Contracts unless the Company continues to operate as
an ongoing enterprise and only enters into new construction contracts after the
date hereof ("New Construction Contracts") under which it satisfactorily
performs and does not incur significant losses. Therefore, Rado also has an
interest in the Company's procurement (including without limitation the bidding
on, review of and acceptance of such New Construction Contracts) and
satisfactory performance of such New Construction Contracts until, at least, all
of Seller's obligations are fulfilled under the Existing Nonassignable
Construction Contracts. It is contemplated that the majority of Seller's
obligations under the Existing Nonassignable
2
Construction Contracts will be fulfilled by the Final Date (hereinafter defined)
of the Employment Period (hereinafter defined). Accordingly, Rado has a great
interest in remaining employed by the Company (as described hereunder) and
maintaining a significant role in the Company during the entire Employment
Period.
The Company has an interest in employing Rado in the significant role
contemplated hereunder during the entire Employment Period in order to (i) aid
in the transition of the former business of Seller to the Company, (ii) assist
in the training of any replacement for Rado, (iii) supervise and make decisions
concerning the bidding on, review of and acceptance of New Construction
Contracts by the Company, (iv) supervise performance of the work by the Company
on New Construction Contracts, and (v) supervise the work by the Company on the
Existing Nonassignable Construction Contracts and to ensure that the Existing
Nonassignable Construction Contracts are satisfactorily completed since the
Company has certain indemnification obligations to Seller and Rado with respect
to the performance and completion of the Existing Nonassignable Construction
Contracts.
Therefore, since each of the parties have a great interest in the
employment of Rado by the Company for the entire
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Employment Period, the parties hereto have agreed to execute and deliver this
Agreement upon the terms and conditions hereinafter set forth, which includes
the right of Rado and the Company to terminate Rado's employment during the
Employment Period only for Good Reason (hereinafter defined) and Cause
(hereinafter defined), respectively.
Agreement
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NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Background to this Agreement, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Employment. The Company hereby employs Rado as President and Chief
Executive Officer of the Company and Rado hereby accepts such employment, all
upon the terms and conditions hereinafter set forth.
2. Office and Duties. During the Employment Period (as defined in Section 4
herein), Rado shall devote his full business time and best working efforts to
being the President and Chief Executive Officer of the Company, and shall
perform such business related duties and services as shall be reasonably
directed from time to time by the Board of Directors of the Company.
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Rado agrees that during the Employment Period he will not be employed by,
participate or engage in, or be a part of, in any manner, directly or
indirectly, the affairs of any other business enterprise or occupation (other
than in connection with his duties as an employee of the Company) without the
Company's express prior written consent; provided, however, that the foregoing
shall not be intended to preclude Rado from (i) participating in the winding up
or dissolution of Seller; or (ii) participating in the completion by Seller of
the Existing Nonassignable Construction Contracts; or (iii) the mere ownership
by Rado, Seller or an entity affiliated with Seller or Rado, of less than 5% of
the issued and outstanding securities of any entity if such securities are
included in the National Market Securities list of the National Association of
Securities Dealers, Inc. Automated Quotation System or listed on any national
Securities exchange; or (iv) being an investor in connection with the ownership
by Rado, Seller, or any entity affiliated with Seller or Rado, in real estate.
3. Compensation. For the services as described hereunder rendered by Rado
to the Company, and in addition to the compensation and/or payments provided for
in Sections 6 and 7, Rado shall receive the following compensation during the
Employment Period (as defined below):
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An annual base salary at the rate of One Hundred and Fifty
Thousand Dollars ($150,000), payable at such time as the Company pays its other
employees, but in no event less frequently than bi-weekly.
The Company will provide to Rado medical and health insurance
coverage which shall be substantially equal to that furnished to him by Seller
prior to the date hereof ("Health Insurance").
Rado will participate in the Company's defined contribution plan
which shall be substantially equal to the Seller's defined contribution plan
existing prior to the date hereof. Rado shall also participate in the Company's
profit sharing plan (which shall be substantially equal to the Seller's profit
sharing plan existing prior to the date hereof) during the calendar years 2002
and 2003, and during the four (4) month period ended April 30, 2004, and the
Company's contribution thereunder shall be based upon Rado's base salary at the
annualized rate of $150,000.
Rado shall be entitled to twenty (20) days of paid vacation time
during each twelve (12) month period of the Employment Period.
e. Rado shall be entitled to be reimbursed by the Company for all
reasonable expenses reasonably incurred by Rado in connection with Rado's
employment responsibilities and duties, including but not limited to business
related travel expenses and mileage. Rado shall reasonably document all requests
for expense reimbursements.
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4. Term of Employment. Subject to Section 5 hereof, the term of Rado's
employment under this Agreement shall be for a period (the "Employment Period")
of two (2) years commencing on September 30, 2002, and terminating on September
30, 2004 (the "Final Date"). Upon the expiration or earlier termination of the
Employment Period (as provided herein), Rado shall no longer be an employee of
the Company; provided, that the provisions of Sections 6 and 7 hereof shall
continue in full force and effect.
5. Termination of Employment. Notwithstanding the provisions of Section 4
hereof, Rado's employment with the Company shall be terminated, and the
Employment Period shall be terminated, upon the occurrence of any of the
following events:
Rado may terminate Rado's employment during the Employment Period only for
Good Reason (as defined below) upon sixty (60) days prior written notice to the
Company. If any such notice is given, then the Employment Period shall terminate
as of the end of the sixty day period, and thereafter Rado shall no longer be an
employee of the Company; provided that: (i) the provisions of Sections 6 and 7
hereof shall continue in full force and effect; (ii) Rado shall receive any and
all compensation, unreimbursed expenses and any and all employee benefits
provided hereunder accrued through the date of termination; and (iii) the
Company shall provide to Rado an amount equal to Rado's salary hereunder from
the date of termination through the Final Date, which shall be payable on or
before the date of termination; and (iv) the Company shall continue to pay for
and provide Health Insurance for Rado through the Final Date.
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For purposes of this Agreement, "Good Reason" shall mean, without Rado's
express written consent, the occurrence of any of the following circumstances:
(A) a Company Change in Control pursuant to which the buyer does not either
assume this Agreement or otherwise agree to employ Rado at or after the
acquisition date on terms substantially comparable in the aggregate to this
Agreement, or (B) unless such circumstances are fully corrected within 60 days
after written notice thereof (1) a permanent material diminution in Rado's
position, duties, responsibilities (including reporting responsibilities) or
authority (except during periods when Rado is unable to perform all or
substantially all of Rado's duties and/or responsibilities on account of Rado's
illness (either physical or mental) or other incapacity), or (2) a failure by
the Company to pay Rado's salary or any other amounts or benefits as provided
herein. For purposes of this Agreement, a "Company Change in Control" shall mean
a sale for cash or noncash consideration of all or substantially all of the
stock of the Company, or all or substantially all of the assets of the Company,
to the extent such sale occurs after the date of this Agreement.
The Company may terminate Rado's employment during the Employment
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Period only for Cause, upon written notice to Rado. The term "Cause" shall mean
any of the following: (i) the commitment of any criminal or fraudulent act by
Rado against the Company or in connection with its business; (ii) the willful
and continued (after notice and reasonable opportunity to cure) failure of Rado
to perform his duties and responsibilities as an employee of the Company,
including but not limited to, his insubordination or failure to follow the
instructions of the Board of Directors of the Company which materially and
adversely affects the Company; (iii) Rado engages in conduct which involves
dishonesty or moral turpitude and which is materially injurious to the Company;
or (iv) the material breach by Rado of any term or condition hereof, provided
that the Company provide to Rado notice of such breach and the opportunity to
cure such breach within 30 days of such notice. In such event, upon such
termination of employment, other than in connection with any unpaid
compensation, any unreimbursed expenses and any and all other employee benefits
provided hereunder accrued through the date of such termination, the Company
shall have no further obligations hereunder; provided that the provisions of
Sections 6 and 7 hereof shall continue in full force and effect.
The death or disability of Rado. The term "disability" shall mean
the reasonable determination by the Company, as provided herein, that Rado is
incapacitated by a medical cause so as to render him mentally or physically
incapable of performing all of his employment duties with the Company for a
period of one hundred and eighty (180) consecutive days, provided that the
Company notifies Rado of its determination of his disability within (10) days
after such one hundred and eighty (180) day consecutive period. The Company
shall be entitled to rely upon the advice and opinion of any qualified and
licensed physician of its choosing in making any determination with respect to
disability under this Agreement. Upon such death or disability, other than in
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connection with any unpaid compensation, any unreimbursed expenses and any and
all other employee benefits provided hereunder which have accrued through the
date of such death or disability, the Company shall have no further obligations
hereunder; provided that the provisions of Sections 6 and 7 hereof shall
continue in full force and effect.
Upon the expiration or earlier termination of the Employment
Period, or upon the request of the Company at any time, Rado shall immediately
deliver to the Company any and all materials, equipment, products, documents,
software, computer discs, manuals, records, drawings, or other items in Rado's
possession or control, which concern or refer to the business or policies of the
Company, and, except for such items which relate, in any way, to the Existing
Nonassignable Construction Contracts, Rado shall not retain or use any copies or
summaries thereof.
e. The Company and the shareholder of the Company, Moro Corporation,
each covenant and agree that they each will not effect any Company Change in
Control (as defined above) prior to the expiration or earlier termination of the
Employment Period without the prior written consent of Rado.
f. The payment by the Company to Rado of any and all amounts due to
Rado hereunder (including without limitation any such amounts under Sections 5,
6, and 7 hereof) have been guaranteed by Moro Corporation pursuant to the
Guaranty Agreement entered into as of even date herewith.
6. Bonus Payments to Rado.
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A. In addition to the compensation payable to Rado by the Company in
Sections 3, 6.B, and 7, the Company shall pay to Rado a signing bonus in the
amount of Three Hundred Thousand Dollars ($300,000) to be paid in three equal
installments of $100,000 on the following dates: September 30, 2003; September
30, 2004; and September 30, 2005. These three payments shall be made to Rado by
the Company whether or not the Employment Period or this Agreement has been
terminated and whether or not Rado is then an employee of the Company, and
subject to Section 6.C., the three payments shall be absolute and unconditional
obligations of the Company. The payment due by the Company on September 30, 2005
has been guaranteed by Xxxxx X. Xxxxxx and Xxxxxxxxxx X. Xxxxxx, jointly and
severally, pursuant to the Limited Guaranty dated of even date herewith. This
Section 6.A shall survive any termination of this Agreement, the death or
disability of Rado, or the employment of Rado hereunder.
B. In addition to the compensation payable to Rado by the Company in
Sections 3, 6.A, and 7, the Company shall pay to Rado an additional signing
bonus in the amount of Three Hundred Thousand Dollars ($300,000). The additional
signing bonus shall be paid by the Company to Rado in three equal installments
of $100,000 on the following dates: Septemebr 30, 2006; September 30, 2007; and
September 30, 2008, and shall be evidenced by a non-interest bearing promissory
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note of the Company in the form attached hereto as Exhibit "A". These three
payments shall be made to Rado by the Company whether or not the Employment
Period or this Agreement has been terminated and whether or not Rado is then an
employee of the Company, and subject to Section 6.C., the three payments shall
be absolute and unconditional obligations of the Company. The additional signing
bonus payments and the promissory note have been guaranteed by Xxxxx X. Xxxxxx
and Xxxxxxxxxx X. Xxxxxx, jointly and severally, pursuant to the Limited
Guaranty dated of even date herewith. This Section 6.B shall survive any
termination of this Agreement, the death or disability of Rado, or the
employment of Rado hereunder.
C. Notwithstanding Section 6.A or 6.B, if on the due date of any bonus
payment under subsection A. or B., any indemnification claims against Seller or
Xxxxxxx X. Xxxx under Section XIX.A. of the Asset Purchase Agreement which have
been finally judicially determined or settled and agreed upon by the parties
thereto, or have been determined by the Independent Accounting Firm (as defined
in the Asset Purchase Agreement) pursuant to Section VI.B of the Asset Purchase
Agreement ("Company Finally Determined Claims"), then the Company shall (x)
retain a portion of such bonus payment equal to the judicially determined,
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Independent Accounting Firm determined, or agreed or settled amount, as
applicable, of any such Company Finally Determined Claims until such time as the
Company Finally Determined Claims are paid, and (y) pay the remainder of the
bonus payment, if any, to Rado. Reference is made to the Asset Purchase
Agreement for all of the terms, conditions, and covenants contained therein.
D. The bonus payments to be made to Rado by the Company referred to in
Section 6.A or 6.B shall be reduced by and subject to applicable payroll tax
withholding, and in addition, shall be further reduced in the amount of the
employer's portion of any payroll taxes required to paid by the Company.
7.Profit Participation Payments.
A. In addition to the compensation payable to Rado by the Company in
Sections 3 and 6, on or before 90 days following the end of each of the two
twelve month periods immediately following the date hereof, the Company shall
deliver to Rado a profit participation payment ("Profit Participation Payment")
equal to the sum of the following: (i) fifty percent (50%) of the amount, if
any, by which the net pre-tax earnings of the Company during each such twelve
month period equals or exceeds $725,000 and is less than $1,000,000; and
(ii)fifty-five percent (55%) of the amount, if any, by which the net pre-tax
13
earnings of the Company during each such twelve month period equals or exceeds
$1,000,000 and is less than $1,250,000; and (iii) sixty percent (60%) of the
amount, if any, by which the net pre-tax earnings of the Company during each
such twelve month period equals or exceeds $1,250,000. Any such payment shall be
paid in cash. The Profit Participation Payments shall be made to Rado by the
Company whether or not the Employment Period or this Agreement has been
terminated and whether or not Rado is then an employee of the Company, and
subject to Section 7.F, the payments shall be absolute and unconditional
obligations of the Company. Each Profit Participation Payment shall be reduced
by and subject to any applicable payroll tax withholding and in addition, shall
be further reduced in the amount of the employer's portion of any payroll taxes
required to paid by the Company. This Section 7 shall survive any termination of
this Agreement, the death or disability of Rado, or the employment of Rado
hereunder.
B. As used in this Section 7, the term the Company shall include the
Company (and its successors and assigns) as well as any business or businesses
conducted by the Company, or by any subsidiary or affiliated corporations of the
Company, which represent a succession to, a continuation of, or an expansion of
the business conducted by Seller.
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C. As used in this Section 7, the term "net pre-tax earnings" shall mean
the net earnings, before all income taxes, of the Company computed on the
accrual basis of accounting in accordance with generally accepted accounting
principles consistently applied and consistent with the accounting practices
applied by Seller prior to the date hereof, except that the following provisions
shall govern the computation of the net pre-tax earnings of the Company for
purposes of this Section 7:
1. Any extraordinary and nonrecurring items of income, gain, loss or
expense shall be excluded from such computation.
2. Any loss, charge or expense not related to the ordinary business
operations of the Company, or paid, incurred or charged in connection with the
expansion of the business operations of the Company (as conducted by Seller
prior to the Sale) as a result of the making of acquisitions or the opening and
staffing of new offices, or any income or revenues directly derived therefrom,
shall be excluded from such computation. During the two twelve month periods
covered by this Section 7, neither the Company nor any of its affiliates shall
15
take any expansion action that effectively competes against or could take
business away from the Company's business (as conducted by Seller prior to the
Sale) without Rado's prior written consent.
3. Any payments, charges or expenses for the allocation of executive,
general and administrative expenses or other payments, charges or expenses of
the Company's sole shareholder, Moro Corporation, or Xxxxx X. Xxxxxx, or his or
its affiliates, shall be excluded from such computation; provided, however, that
there shall be included for purposes of such computation (i.e., a deductible
expense) an annual charge for management fees paid by the Company to Moro
Corporation, Xxxxx X. Xxxxxx or any affiliate(s) of the foregoing, in an amount
not greater than $100,000.
4. Any interest expenses or charges shall be excluded from such
computation.
5. Any amortization of any and all capitalized acquisition expenses
associated with the transactions contemplated by this Agreement shall be
excluded from such computation.
6. The six payments of $100,000 to be made to Rado under Sections 6.A
and 6.B hereof shall be excluded from such computation and the fifteen percent
(15%)
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portion of the Additional Cumberland Project Excess Profits (as defined in the
Asset Purchase Agreement) retained by the Company and not paid to Seller
pursuant to Section VI.E. of the Asset Purchase Agreement shall be excluded from
such computation.
7. Any and all Profit Participation Payments incurred or paid shall be
excluded from such computation.
8. All cash out of pocket expenses reasonably incurred by the Company
for consulting fees and new management costs shall be included in the
calculation and be taken by the Company as a deductible expense, subject to the
approval of Rado which approval shall not be unreasonably withheld or delayed.
9. Any depreciation expenses for the fixed assets of Seller acquired
by the Company shall be based upon the book value assigned thereto pursuant to
the Asset Purchase Agreement, which fixed assets shall be depreciated over
periods and by methods consistent with generally accepted accounting principles
and the practice of the Seller prior to the date hereof.
10. Except as otherwise expressly provided above, all amounts
determined in accordance with subparagraphs 1 through 9 of this Section 7.C
shall be determined in accordance with generally accepted accounting principles
consistently applied.
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D. Rado shall have reasonable access to the financial books and records of
the Company in order to determine the amount of any Profit Participation Payment
owed to him. Until all Profit Participation Payments have been made by the
Company to Rado, the Company shall deliver to Rado the annual financial
statements of the Company within 90-days following the close of each calendar
year.
E. As soon as may be practicable after each such twelve month period
covered by this Section 7, but not later than 90 days thereafter, the Company
shall deliver to Rado a statement setting forth in reasonable detail its
calculation of the net pre-tax earnings of the Company during such twelve month
period and the amount of any Profit Participation Payment to be paid to Rado
pursuant to this Section 7, which statement shall be accompanied by payment to
Rado of the amount shown thereon (a "Profit Participation Statement"). If within
30 days after delivery of the Profit Participation Statement, Rado has not given
written notice to the Company (a "Profit Participation Dispute Notice")
disputing such Profit Participation Statement (a "Profit Participation Dispute")
and indicating the basis of such Profit Participation Dispute and the amount of
the Profit Participation Payment claimed to be due by the Company to Rado, the
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Company shall thereafter have no liability to Rado under this Section 7 for such
twelve month period except for the amount of the Profit Participation Payment
listed in the Profit Participation Statement.
In the event that Rado delivers to the Company a Profit Participation Dispute
Notice within such 30-day period, Rado and the Company shall use their best
efforts to settle the Profit Participation Dispute within 30 days after the
giving of such Profit Participation Notice. Any Profit Participation Dispute
unresolved after such 30-day period may be submitted by the Company and Rado to
an independent accounting firm acceptable to the parties (a "Profit
Participation Independent Accounting Firm"), which firm shall use the methods
and criteria and such procedures as it may deem necessary in its sole discretion
to decide the Profit Participation Dispute, and the Profit Participation
Independent Accounting Firm shall choose either the Profit Participation Payment
set forth in the Profit Participation Statement or the Profit Participation
Payment set forth in the Profit Participation Dispute Notice. The decision of
the Profit Participation Independent Accounting Firm shall be final, conclusive
and binding upon the parties and not subject to any appeal. The fees and
expenses of the Profit Participation Independent Accounting Firm shall be paid
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by the non-prevailing party, not the prevailing party.
If upon the determination of the Profit Participation Dispute, any amount is
due to Rado, the amount shall be paid to Rado by the Company within five days
thereafter. Any such amount due to Rado shall bear interest from and after the
date of the Profit Participation Dispute Notice until paid at the rate of six
percent (6%) per annum and shall be paid in immediately available funds.
F. If on the date of delivery of any Profit Participation Statement, any
indemnification claims against Seller or Rado under Section XIX.A. of the Asset
Purchase Agreement which have been finally judicially determined or settled and
agreed upon by the parties thereto, or have been determined by the Independent
Accounting Firm (as defined in the Asset Purchase Agreement) pursuant to Section
VI.B of the Asset Purchase Agreement ("Company Finally Determined Claims"), then
the Company shall (x) retain a portion of such Profit Participation Payment
equal to the equal to the judicially determined, Independent Accounting Firm
determined, or agreed or settled amount, as applicable, of any such Company
Finally Determined Claims until such time as the Company Finally Determined
Claims are paid, and (y) pay the remainder of the
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Profit Participation Payment, if any, to Rado. Reference is made to the Asset
Purchase Agreement for all of the terms, conditions, and covenants contained
therein.
8. Termination of Employment Period. The Company and Rado have entered into a
Non-Competition Agreement dated of even date herewith ("Non-Competition
Agreement"). The expiration or termination for any reason whatsoever of the
Employment Period or this Agreement, or termination of Rado's employment with
the Company for any reason whatsoever, shall not affect, modify, limit or vary
in any manner whatsoever any of the terms or conditions of the Non-Competition
Agreement, and the Non-Competition Agreement shall nevertheless remain in full
force and effect in accordance with its terms.
9. Notices. All notices required or permitted hereunder shall be in writing
and shall be sent by personal delivery, recognized overnight delivery service,
or certified or registered mail, return receipt requested, postage prepaid, as
follows:
If to Rado:
Xx. Xxxxxxx X. Xxxx
0000 Xxxxx Xxxxx 000
Xxxxxxxxxx, XX 00000
With copy to:
Xxxxxx X. Xxxxxxxx, Esquire
White and Xxxxxxxx LLP
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0000 Xxx Xxxxxxx
Xxxxx Xxxxxxxxxxxx, XX 00000
If to the Company:
Moro/Rado Acquisition Corp.
000 Xxxxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Chairman
With copy to:
Xxxxxxx X. Xxxxx, Esquire
Lurio & Associates, P.C.
0000 Xxxxxx Xxxxxx; Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
or to such other address as such parties may designate in a written notice
served upon the other parties in the manner provided herein. All notices
required or permitted hereunder shall be deemed duly given and received when
delivered by personal delivery, on the next business day when sent by recognized
overnight delivery service, and on the second day next succeeding the date of
mailing when sent by certified or registered mail, return receipt requested.
10. Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective permitted personal
representatives, heirs, successors, and assigns. This Agreement may not be
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assigned, in whole or in part, by Rado or the Company without the prior written
consent of the other party.
11. Background; Entire Agreement. The parties hereto agree that the
Background to this Agreement is incorporated herein by reference and is part of
this Agreement. This Agreement embodies the entire understanding and agreement
of the parties hereto relating to the subject matter hereof, supersedes all
prior and contemporaneous agreements, understandings and negotiations, whether
oral or written of the parties, and no promise, condition, representation or
warranty, expressed or implied, not herein set forth, shall bind any party with
respect to the subject matter hereof.
12. Choice of Law. This Agreement has been executed and delivered in the
Commonwealth of Pennsylvania and shall be construed in accordance with and
governed by the laws of the Commonwealth of Pennsylvania without regard to its
conflicts of laws rules.
13. Jurisdiction. Except as provided otherwise herein, the Company and Rado
irrevocably consent and agree that any legal action or proceeding whatsoever
arising out of or in any way connected with this Agreement or the transactions
contemplated hereby shall be solely and exclusively commenced, filed, instituted
or brought in the state or federal courts of the Commonwealth of Pennsylvania,
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and each irrevocably submits and accepts with regard to any such legal action or
proceeding to the jurisdiction of such courts. Except as otherwise provided
herein, the Company and Rado irrevocably consent to service of process out of
any of the aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to the
Company and Rado, such service to become effective upon mailing. Except as
otherwise provided herein, the Company and Rado hereby irrevocably waive, to the
fullest extent permitted by law, any objection which either of them may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
arising out of or relating to this Agreement brought in such Pennsylvania
courts, and hereby further irrevocably waive any claim, that any such suit,
action or proceeding brought in such courts, has been brought in an inconvenient
forum.
14. Waivers, Modifications, etc. Any party to this Agreement may waive any of
the terms or conditions of this Agreement or agree to an amendment or
modification to this Agreement by an agreement in writing executed in the same
manner as this Agreement. No amendment or modification of this Agreement shall
be binding unless executed in writing by all of the parties hereto. No waivers
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shall be binding unless in writing executed by the party waiving such term or
condition of this Agreement.
15. Invalid Provision. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
any such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. If any of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to duration,
scope, activity or subject, it shall be construed by limiting and reducing it,
so as to be valid and enforceable to the extent compatible with the applicable
law.
16. Understanding of Agreement. Rado hereby represents and warrants each of
the following: (i) he has carefully read all of the terms and conditions of this
Agreement; and (ii) he fully understands the meaning and effect of this
Agreement; and (iii) the entry into and execution of this Agreement by him is
his own free and voluntary act and deed; and (iv) he has received (or had the
opportunity to receive) the advice of his own attorney, accountant, or other
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advisors, concerning this Agreement and its meaning and legal effect, and has
(or has had the opportunity to) fully and completely discuss and review the
Agreement and its meaning and legal effect, with his own attorney, accountant or
other advisors.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
MORO/RADO ACQUISITION CORP.
Attest:_____________________ By: /S/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx, Chairman
Witness:____________________ /S/ Xxxxxxx X. Xxxx
-------------------
XXXXXXX X. XXXX, Individually
LIMITED JOINDER OF MORO CORPORATION
-----------------------------------
The undersigned, Moro Corporation, hereby joins in this Agreement solely
for the purpose of agreeing to the terms and conditions of Section 5.e hereof.
MORO CORPORATION
Witness: By: /S/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
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