EMPLOYMENT AGREEMENT
Exhibit 10.7(h)
THIS AGREEMENT, made this 11th day of November 2005, by and between TRM
Corporation, an Oregon corporation (hereinafter called “Company”), and Xxxxxxx X. Xxxxxx, an
individual residing in Pennsylvania (hereinafter called “Executive”).
WITNESSETH:
Company wishes to continue to employ Executive and Executive wishes to continue to be in the
employ of Company on the terms and conditions contained in this Agreement.
WHEREAS, due to
Company’s desire to continue to employ Executive as President and Chief
Executive Officer and to gain the protections and benefits contained in this Employment Agreement,
Company and Executive agree to the covenants and restrictions contained herein;
WHEREAS, due to Executive’s
desire to continue to serve as President and Chief Executive
Officer and gain the protections and new and expanded benefits contained in this Employment Agreement
(“Agreement”), Executive agrees to the covenants and restrictions contained herein;
NOW, THEREFORE, in consideration of the facts, mutual promises and covenants contained herein
and intending to be legally bound hereby, Company and Executive agree as follows:
1. Definitions. As used herein, the following terms shall have the meanings set forth
below unless the context otherwise requires.
“Affiliate” shall mean a person or entity who or which (i) with respect to any entity,
directly or indirectly through one or more intermediaries, controls, or is controlled by, or is
under common control with, such entity; or (ii) with respect to Executive, is a parent, spouse,
child or issue of Executive, including persons in an adopted or step relationship.
“Annual Bonus” shall mean the bonus payment(s) available to Executive at the sole
discretion of the majority of the Board of Directors or the Compensation Committee, as set forth in
Section 5(b), as such amount may be adjusted from time to time.
“Base Salary” shall mean the annual rate of compensation set forth in Section 5(a), as
such amount may be adjusted from time to time.
“Board” shall mean the Board of Directors of Company.
“Business” shall mean the business conducted by Company or any Subsidiary or corporate
parent thereof or entity sharing a common corporate parent with the Company on the date of
execution of this Agreement, including business activities in developmental stages, business
activities which may be developed by the Company, or by any Subsidiary or corporate
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parent thereof or entity sharing a common corporate parent with the Company, during the period
of Executive’s employment by Company, and all other business activities which flow from a
reasonable expansion of any of the foregoing during Executive’s employment with the Company and
about which Executive had or has constructive or actual knowledge.
“Cause” shall include any one or more of the following:
(a) Executive breaches or neglects the material and substantial duties that Executive is
required to perform under the terms of this Agreement, including if Executive performs his duties
in an incompetent manner, after written notice of the breach or neglect and thirty (30) days to
cure such breach or neglect;
(b) The reasonable belief of a majority of the Board of Directors that Executive has committed
a crime of moral turpitude or has entered a plea of nolo contendere (or similar plea) to a charge
of such an offense;
(c) Executive uses alcohol in an inappropriate manner or any unlawful controlled substance
while performing his duties under this Agreement and such use materially interferes with the
material performance of Executive’s duties under this Agreement;
(d) Executive commits any act of criminal fraud, material dishonesty or misappropriation
relating to or involving the Company;
(e) Executive materially violates a rule(s), regulation(s), policy(ies) or plan(s) governing
Executive performance or express direction(s) of the Board;
(f) Executive engages in the unauthorized disclosure of Confidential Information; or
(g) Executive
acts in a manner that is materially contrary to the best interests of the Company
after he is given written notice of his actions, as well as 30 days to cure.
“Change of Control” shall be deemed to have occurred upon the earliest to occur of the
following events:
(a) the
direct or indirect sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets (including in the Company’s subsidiaries) of the
Company and its subsidiaries taken as a whole, to any “person” (as that term is used in Section
13(d)(3) of the Exchange Act);
(b) the adoption of a plan relating to the liquidation or dissolution of the Company;
(c) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “Person” (as that term is used in Section 13(d)(3)
of the Exchange Act), becomes the “Beneficial Owner” (as that term is used in Section
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13(d)(3) of the Exchange Act), directly or indirectly, of more than 35% of the Voting Stock of
the Company;
(d) the Company
consolidates or merges with or into another Person or any Person consolidates
or merges with or into the Company, in either case under this clause, in one transaction or a
series of related transactions in which immediately after the consummation thereof Persons
Beneficially Owning, directly or indirectly, Voting Stock representing in the aggregate a majority
of the total voting power of the Voting Stock of the Company immediately prior to such consummation
do not Beneficially Own, directly or indirectly, Voting Stock representing a majority of the total
voting power of the Voting Stock of the Company or the surviving or transferee Person; or
(l) the first day on which a majority of the members of the Board of Directors of the Company
are not Continuing Directors.
“Commencement Date” shall have the meaning specified in Section 4 hereof.
“Confidential Information” shall have the meaning specified in Section 12(b) hereof.
“Disability”
shall mean Executive’s inability, for a period of thirteen (13)
consecutive weeks, or a cumulative period of 120 business days (i.e., Mondays through Fridays,
exclusive of days on which Company is generally closed for a holiday) out of a consecutive period
of twelve (12) months, to perform the essential duties of Executive’s position, due to a disability
as that term is defined in the Americans With Disabilities Act.
“Restricted Area” shall have the meaning specified in Section 12(a)(i) hereof.
“Restricted Period A” shall have the meaning specified in Section 12(a) hereof.
“Restricted Period B” shall have the meaning specified in Section 12(b) hereof.
“Subsidiary” shall mean any company in which Company owns directly or indirectly 50%
or more of the Voting Stock or 50% or more of the equity; or any other venture in which it owns
either 50% or more of the voting rights or 50% or more of the equity.
“Term of Employment” shall mean the period specified in Section 4 hereof as the same
may be terminated in accordance with this Agreement.
2. Employment. Company
hereby employs Executive as President and Chief Executive Officer and
Executive hereby accepts employment by Company for the period and upon the terms and conditions
specified in this Agreement.
3. Office and Duties.
(a) Executive shall continue to serve as the President and Chief Executive Officer of Company.
In such capacity, Executive shall render such services as are necessary and desirable to protect
and advance the best interests of Company, acting, in all instances, under the
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supervision of and in accordance with the policies set by the Board. As President and Chief
Executive Officer, Executive shall be responsible for managing the day-to-day operations of the
business and shall have the responsibility and authority, subject to policies set by and with the
approval of the Board, to employ and terminate Executives, sign agreements and otherwise to
implement the policies and directives of the Board, all subject to the provisions of any operating
budget or budgets as may be approved from time to time by the Board and subject to the By-Laws of
the Company. Executive shall perform any other duties reasonably required by the Board and
reasonably related to his responsibilities as President and Chief Executive Officer.
(b) For as long as Executive shall remain an Executive of Company, Executive’s entire working
time, energy, skill and best efforts shall be devoted to the performance of Executive’s duties
hereunder in a manner which will faithfully and diligently further the business and interests of
Company. Executive may engage in charitable, civic, fraternal, trade and professional association
activities that do not interfere with Executive’s obligations to Company, but Executive shall not
work for any other for-profit business without so disclosing such activity to the Board, in which
event the Board may not unreasonably withhold its consent to such activity.
4. Term. Executive
shall be employed by Company for a Term of Employment (the
“Initial Term”), commencing November 1, 2005 (the “Commencement Date”), and ending on
October 31, 2008,
unless sooner terminated as hereinafter provided. However, at the end
of the Initial Term on October 31, 2008, the Term of Employment and this Employment Agreement will be automatically extended for
consecutive one (1) year terms (“Additional Term”) unless not later than thirty (30) days prior to
October 31, 2008, or thirty (30) days prior to any successive anniversary of that date, either party
gives written notice that it does not wish to extend this Employment Agreement. During any
Additional Term, this Agreement and Executive’s employment can be terminated in accordance with
Sections 7 — 10 below.
5. Compensation and Benefits.
(a) For all of the service rendered by Executive to Company, Executive shall receive Base
Compensation at the gross annual rate of four hundred and seventy-five thousand USD ($475,000.00),
payable in installments in accordance with Company’s regular payroll practices in effect from time
to time. The Base Compensation shall be reviewed annually, on or around the anniversary date of
the Commencement Date of this Agreement to ascertain, in the sole discretion of the Board or the
Compensation Committee, the amount, if at all, the Executive’s Base Compensation should be
increased, but it shall not be decreased.
(b) In addition to the foregoing compensation, Executive is eligible to receive an Annual
Bonus each fiscal year in an amount, as shall be determined by a majority of the Board of Directors
or the Compensation Committee, in their sole discretion. The Annual Bonus shall be payable in the
Company’s sole discretion, either in a single lump-sum payment, or in equal monthly installments
beginning no later than ninety (90) days after the end of the relevant fiscal year. To be eligible
for the Annual Bonus, Executive must be actively employed by the Company on the last day of the
relevant fiscal year.
(c) If Executive’s employment is terminated by the Company at any time within three months
before, or twelve months after the occurrence of a Change in Control (except for cause), (i) all
Stock Options and Restricted Stock granted to Executive by Company, which
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pursuant to the terms of the applicable plan vest upon a Change in Control, shall vest upon
the date of Executive’s employment termination, and shall be exercisable to Executive for ten (10)
years thereafter and (ii) Company shall pay Executive an amount equal to the average of Executive’s
highest three (3) years of Base Compensation multiplied by 2.99, so long as Executive executes and
does not revoke a Separation Agreement and General Release Agreement acceptable to Company which
will be substantially in the terms and form attached hereto as Exhibit “A”. Except as otherwise
specifically set forth in this Section 5(c), all Base Compensation, Annual Bonus, additional bonus,
and any other compensation and benefits provided herein shall cease at the time of such
termination, subject to the terms of any benefit or compensation plans then in force and applicable
to Executive, and Company shall have no liability or obligation hereunder by reason of such
termination.
(d) In the event any amounts payable
under this Agreement (and/or under any other plan,
agreement or arrangement by which Executive is to receive payments in the nature of compensation from
the Company) would constitute “excess parachute payments,” as that term is defined for purposes of
Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury Regulations
promulgated pursuant thereto, Executive will receive additional cash payments such that, after payment of
all federal, state and local income taxes and federal excise taxes on the excess parachute payments
and on the additional cash payments made under this paragraph,
Executive will have a net amount equal to
the amount Executive would have received under the terms of this Agreement and/or under any other plan,
agreement or arrangement pursuant to which Executive entitled to receive payments in the nature of
compensation from the Company (but not including the excess parachute gross-up payments payable to
Executive pursuant to this paragraph) if no portion of such payments and/or benefits were treated as
excess parachute payments for purposes of Code Section 280G.
(e) Executive agrees and acknowledges that his employment and the other protections and
benefits of this Agreement are full, adequate and sufficient consideration for the restrictions and
obligations set forth in Sections 11 and 12 of this Agreement.
6. Fringe Benefits. As an inducement to Executive to continue employment hereunder,
and in consideration of Executive’s covenants under this Agreement, Executive shall be eligible to
the benefits set forth below (the “Fringe Benefits”) during the Term of Employment:
(a) Executive shall be eligible to participate in any health, life, accident or disability
insurance, sick leave or other benefit plans or programs made available to other similarly situated
Executives of Company on terms at least equal to those available to other similarly situated
Executives of Company as long as the plans and programs are kept in force by Company and provided
that Executive meets the eligibility requirements and other terms, conditions and restrictions of
the respective plans and programs, with the understanding that the Company will keep in force
throughout the Term of this Agreement health, life, accident and disability insurance and sick
leave benefits equal to or greater than those in effect at the Commencement Date.
(b) Executive shall be entitled to four (4) weeks paid vacation during each year, subject to
Company’s generally applicable policies relating to vacations, and excluding standard Company
holidays.
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(c) Executive shall be entitled to an automobile leased by the Company on his behalf or an
automobile allowance, consistent with Company policy and practice. Company shall pay the
automobile insurance for one vehicle used by Executive in connection with his employment by
Company.
7. Disability. If Executive suffers a Disability as that term is defined in Section 1
herein, the Company may terminate Executive’s employment relationship with Company at any time
thereafter (after the expiration of time periods described in the definition of “Disability” in
Section 1) by giving Executive thirty (30) days written notice of termination. Thereafter, Company
shall have no obligation to Executive for Base Compensation, Annual Bonus, Fringe Benefits or any
other form of compensation or benefit to Executive, except as otherwise required by law or by
benefit plans provided at Company expense, other than (a) amounts of Base Compensation accrued
through the date of termination, (b) vested Stock and Stock Options, and (c) reimbursement of
appropriately documented expenses incurred by Executive before the termination of employment, to
the extent that Executive would have been entitled to such reimbursement but for the termination of
employment.
8. Death. If Executive dies during the Term of Employment, the Term of Employment and
Executive’s employment with Company shall terminate as of the date of Executive’s death. Company
shall have no obligation to Executive or Executive’s estate for Base Compensation, Annual Bonus,
Fringe Benefits or any other form of compensation or benefit, except as otherwise required by law
or by benefit plans provided at Company expense, other than (a) amounts of Base Compensation that
have accrued through the date of Executive’s death, (b) vested Stock and Stock Options, and (c)
reimbursement of appropriately documented expenses incurred by Executive before the termination of
employment, to the extent that Executive would have been entitled to such reimbursement but for the
termination of employment.
9. Termination for Cause. Company may terminate Executive’s employment relationship
with Company at any time for Cause as that term is defined in Section 1 herein, effective not less
than ten (10) days after written notice of such termination. Upon the effective date of
termination of Executive under this Section 9, Company shall have no obligation to Executive for
Base Compensation, Annual Bonus, Fringe Benefits, or any other form of compensation or benefits
other than (a) amounts of Base Compensation, and vested Stock and Stock Options accrued through the
effective date of termination, and (b) reimbursement of appropriately documented expenses incurred
by Executive before the written notice of termination of employment, to the extent that Executive
would have been entitled to such reimbursement but for the termination of employment. In such
event, Executive will be entitled to elect to continue participation in any health, life, accident
or disability insurance plans of the Company at Executive’s expense if plans allow for continuation
at no cost to the Company.
10. Termination without Cause.
(a) Company may terminate Executive’s employment relationship with Company at any time without
Cause upon ninety (90) days written notice. Notwithstanding termination of Executive under this
Section 10, Company shall pay Executive an amount equal to the average of Executive’s highest three
(3) years of Base Compensation plus Annual Bonus multiplied by 2.99, and Executive shall be entitled to receive all
vested Stock and Stock Options (all of which will fully vest upon such termination), so long as
Executive executes and does not revoke a Separation Agreement
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and General Release Agreement acceptable to Company which will be substantially in the terms
and form attached hereto as Exhibit “A”.
(b) Executive may terminate his employment with Company for any or no reason, upon ninety (90)
days written notice. If such notice is provided by Executive, Employer, in its sole discretion,
may waive the notice period or any portion thereof, with pay (Base Compensation only) to Executive
for the remaining notice period. Upon termination by Executive of his employment under the
provisions of this Subsection 10(b), the Company shall have no obligation to Executive for Base
Compensation, Annual Bonus, Fringe Benefits or any other form of compensation or benefits other
than (a) amounts of Base Compensation, vested Stock and Stock Options accrued through the
effective date of termination, and (b) reimbursement of appropriately documented expenses incurred
by Executive before the termination of employment, to the extent that Executive would have been
entitled to such reimbursement but for his termination of his employment.
(c) Termination of Executive’s employment pursuant to Sections 7 through 10 shall release the
Company of all its liabilities and obligations under this Agreement, except as expressly provided
in Sections 7 through 10. Termination of Executive’s employment pursuant to this Section shall
not, however, release Executive from Executive’s obligations and restrictions as stated in Sections
11 and 12 of this Agreement.
(d) Executive shall not be entitled to any payment or benefit under any Company severance plan
other than as reflected herein under Section 10, and supercedes
any or all other practice or policy, if any, in effect at or after
the time of Executive’s termination since this Agreement.
11. Company Property. All advertising, sales, manufacturers’ and other materials or
articles or information, including without limitation data processing reports, computer programs,
software, customer information and records, business records, price lists or information, samples,
or any other materials or data of any kind physically furnished to Executive by Company or
developed by Executive on behalf of Company or at Company’s direction or for Company’s use or
otherwise in connection with Executive’s employment hereunder, are and shall remain the sole
property of Company, including in each case all copies thereof in any medium, including computer
tapes and other forms of information storage. If Company requests the return of such materials at
any time during or at or after the termination of Executive’s employment, Executive shall deliver
all copies of the same to Company immediately.
12. Noncompetition, Trade Secrets, Etc. Executive hereby acknowledges that, during
and solely as a result of his employment by Company, Executive has had and will have access to
Confidential Information as that term is defined herein. In consideration of such special and
unique opportunities afforded by Company to Executive as a result of Executive’s employment and the
other benefits referred to within this Agreement, the Executive hereby agrees as follows:
(a) From the date hereof until twenty-four (24) months following the termination of
Executive’s employment with Company, for any or no reason, whether initiated by Executive or
Company, (“Restricted Period A”);
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(i) Executive shall not, for his own benefit or the benefit of any third party, directly or
indirectly engage in (as a principal, shareholder, partner, director, officer, agent, Executive,
consultant or otherwise) or be financially interested in any business operating within the United
States or Canada (the “Restricted Area”), which provides consumer convenience services materially
the same as the services Company provides to third parties, or any other business activities which
are materially the same as and which are in direct competition with the Business, or with any
business activities carried on by Company or being planned by Company, at the time of the
termination of Executive’s employment, or any other business activities which are materially the
same as the Business for any of the Company’s past, present or prospective clients, customers or
accounts; provided however, nothing contained in this Section 12 shall prevent Executive from
holding for investment less than five percent (5%) of any class of equity securities of a company
whose securities are publicly traded on a national securities exchange or in a national market
system.
(ii) Induce or attempt to influence any Executive, customer, independent contractor or
supplier of Company to terminate employment or any other relationship with Company. During the
Restricted Period, while Executive is still employed by the Company, Executive shall not, directly
or indirectly, disclose or otherwise communicate to any of the clients, customers or accounts of
Company, its Affiliates or any Subsidiary thereof that he has been terminated, is considering
terminating or has decided to terminate employment with Company.
(b) From the date hereof until twenty-four (24) months following the termination of
Executive’s employment with the Company, for any or no reason, whether initiated by Executive or
Company (“Restricted Period B”), Executive shall not use for Executive’s personal benefit, or
disclose, communicate or divulge to, or use for the direct or indirect benefit of any person, firm,
association, or company other than Company, any “Confidential Information” which term shall mean
any information regarding the business methods, business policies, policies, procedures,
techniques, research or development projects or results, historical or projected financial
information, budgets, trade secrets, or other knowledge or processes of or developed by Company or
any names and addresses of customers or clients or any data on or relating to past, present or
prospective Company customers or clients or any other confidential information relating to or
dealing with the business operations or activities of Company, made known to Executive or learned
or acquired by Executive while in the employ of Company. Confidential Information shall not
include (1) information unrelated to the Company which was lawfully received by Executive free of
restriction from another source having the right to so furnish such Confidential Information; or
(2) information after it has become generally available to the public or to industry competitors
without breach of this Agreement by the Executive; or (3) information which at the time of
disclosure to the Executive was known to the Executive to be free of restriction as evidenced by
documentation from the Company which the Executive possesses, or (4) information which Company
agrees in writing is free of such restrictions. All memoranda, notes, lists, records, files,
documents and other papers and other like items (and all copies, extracts and summaries thereof)
made or compiled by Executive or made available to Executive concerning the business of Company
shall be Company’s property and shall be delivered to Company promptly upon the termination of
Executive’s employment with Company or at any other time on request. The foregoing provisions of
this Subsection 12(b) shall apply during and for a period of two (2) years after Executive is an
Executive of Company and shall be in addition to (and not a limitation of) any legally applicable
protections of Company’s interest in confidential information, trade secrets and the like. At the
termination of
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Executive’s employment with Company, Executive shall return to Company all copies of
Confidential Information in any medium, including computer tapes and other forms of data storage.
(c) Any and all writings, inventions, improvements, processes, procedures and/or techniques
which Executive may make, conceive, discover or develop, either solely or jointly with any other
person or persons, at any time when Executive is an Executive of Company, whether or not during
working hours and whether or not at the request or upon the suggestion of Company, which relate to
or are useful in connection with the Business or with any business now or hereafter carried on or
contemplated by Company, including developments or expansions of its present fields of operations,
shall be the sole and exclusive property of Company. Executive shall make full disclosure to
Company of all such writings, inventions, improvements, processes, procedures and techniques, and
shall do everything necessary or desirable to vest the absolute title thereto in Company.
Executive shall write and prepare all specifications and procedures regarding such inventions,
improvements, processes, procedures and techniques and otherwise aid and assist Company so that
Company can prepare and present applications for copyright or Letters Patent therefor and can
secure such copyright or Letters Patent wherever possible, as well as reissues, renewals, and
extensions thereof, and can obtain the record title to such copyright or patents so that Company
shall be the sole and absolute owner thereof in all countries in which it may desire to have
copyright or patent protection. Executive shall not be entitled to any additional or special
compensation or reimbursement regarding any and all such writings, inventions, improvements,
processes, procedures and techniques.
(d) Executive acknowledges that the restrictions contained in the foregoing Subsections in
view of the nature of the business in which Company is engaged, are reasonable and necessary in
order to protect the legitimate interests of Company, that their enforcement will not impose a
hardship on Executive or significantly impair Executive’s ability to earn a livelihood, and that
any violation thereof would result in irreparable injuries to Company. Executive and Company
acknowledge that, in the event either party believes the other party has violated any of the terms
of this Agreement, the other party shall be entitled to seek from any court of competent
jurisdiction, without attempting arbitration, preliminary and permanent injunctive relief.
(e) If the Restricted Periods or the Restricted Area specified above should be adjudged
unreasonable in any proceeding, then the period of time shall be reduced by such amount or the area
shall be reduced by the elimination of such portion or both such reductions shall be made so that
such restrictions may be enforced for such time and in such area as is adjudged to be reasonable.
If Executive violates any of the restrictions contained in the foregoing Subsections, the relevant
Restricted Period shall be extended by a period equal to the length of time from the commencement
of any such violation until such time as such violation shall be cured by Executive to the
satisfaction of Company. Executive hereby expressly consents to the jurisdiction of any court
within the Eastern District of Pennsylvania for the purpose of seeking a preliminary or permanent
injunction as described above in Section 12(d), and agrees to accept service of process by
certified mail return receipt requested relating to any such proceeding. Company may supply a copy
of Section 12 of this Agreement to any future or prospective employer of Executive or to any person
to whom Executive has supplied information if Company determines in good faith that there is a
reasonable likelihood that Executive has violated or will violate such Section.
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13. Prior Agreements. Executive represents to Company that there are no restrictions,
agreements or understandings, oral or written, to which Executive is a party or by which Executive
is bound that prevent or make unlawful Executive’s execution or performance of this Agreement.
14. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the part of either party
to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude
any other or further exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
(b) Controlling Law. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation, provisions concerning
limitations of actions), shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, notwithstanding any conflict-of-laws doctrines of such jurisdiction
to the contrary, and without the aid of any canon, custom or rule of law requiring construction
against the draftsman.
(c) Notices. All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have been duly given,
made and received only when personally delivered, on the day specified for delivery when deposited
with a recognized national or regional courier service for delivery to the intended addressee or
two (2) days following the day when deposited in the United States mails, first class postage
prepaid, addressed as set forth below:
If to Executive:
If to Company:
Xxx X. Xxxxxxxx, Esq.
Senior Vice President
TRM Corporation
0000 X.X. 000x Xxxxxx
Xxxxxxxx, XX 00000
Senior Vice President
TRM Corporation
0000 X.X. 000x Xxxxxx
Xxxxxxxx, XX 00000
with a copy, given in the manner prescribed above, to:
Xxxx X. Xxxxxxx, Esq.
Xxxx, Block, Xxxxxx and Xxxxx-Xxxxx, LLP
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx, Esq.
Xxxx, Block, Xxxxxx and Xxxxx-Xxxxx, LLP
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
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In addition, notice by mail shall be by air mail if posted outside of the continental United
States. Any party may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this Section for the giving
of notice.
(d) Binding Nature of Agreement. This Agreement shall be binding upon Company and
shall inure to the benefit of Company, its present and future Subsidiaries, Affiliates, successors
and assigns including any transferee of the business operation, as a going concern, in which
Executive is employed and shall be binding upon Executive, Executive’s heirs and personal
representatives. None of the rights or obligations of Executive hereunder may be assigned or
delegated, except that in the event of Executive’s death or Disability, any rights of Executive
hereunder shall be transferred to Executive’s estate or personal representative, as the case may
be. Company may assign its rights and obligations under this Agreement in whole or in part to any
one or more Affiliates or successors, but no such assignment shall relieve Company of its
obligations to Executive if any such assignee fails to perform such obligations.
(e) Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any party whose signature
appears thereon, and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as the signatories.
(f) Provisions Separable. The provisions of this Agreement are independent of and
separable from each other, and no provision shall be affected or rendered invalid or unenforceable
by virtue of the fact that for any reason any other or others of them may be invalid or
unenforceable in whole or in part.
(g) Entire Agreement. This Agreement contains the entire understanding among the
parties hereto with respect to the employment of Executive by Company, and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement
may not be modified or amended other than by an agreement in writing. Notwithstanding the
foregoing, nothing herein shall limit the application of any generally applicable Company policy,
practice, plan or the terms of any manual or handbook applicable to Company’s Executives generally,
except to the extent the foregoing directly conflict with this Agreement, in which case the terms
of this Agreement shall prevail.
(h) Section Headings. The Section headings in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its interpretation.
(i) Number of Days. Except as otherwise provided herein, for example, in the context
of vacation days, in computing the number of days for purposes of this Agreement, all days shall be
counted, including Saturdays, Sundays and holidays; provided, however, that if the final day of any
time period falls on a Saturday, Sunday or holiday on which federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not a Saturday, Sunday or
such holiday.
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(j) Gender, Etc. Words used herein, regardless of the number and gender specifically
used, shall be deemed and construed to include any other number, singular or plural, and any other
gender, masculine, feminine or neuter, as the context indicates is appropriate.
(k) Dispute Resolution. In the event of any disagreement of any nature whatsoever
between the parties to this Employment Agreement in any way relating to this Employment Agreement,
except for the ability of the parties to seek a preliminary or permanent injunction as described
above, which need not be discussed between the parties or arbitrated, the parties shall meet to
attempt to resolve such disagreement. In the event of their failure to do so within fifteen (15)
days or such longer period of time as shall be mutually agreed upon by the parties, either party
may serve notice in writing upon the other party requesting arbitration, which notice shall specify
in reasonable detail the nature of the dispute. Any arbitration under this Section shall be held
in Philadelphia, Pennsylvania or such other place as shall be mutually agreed to by the parties,
and conducted in accordance with the procedures set forth hereafter and, to the extent not
inconsistent with this Section, in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association in effect on the date of this Agreement. Company shall have the
right and remedy to ask the arbitrator to require Executive to account to Company for
all compensation, profits, monies, accruals, increments or other benefits derived or received by
Executive as the result of any transactions constituting a breach of Section 12, and Executive
shall account for and pay over such amounts to Company upon the arbitrator’s determination thereof.
(i) Any arbitration under this Section shall be before an arbitrator who shall be experienced
in the area of employment law. The arbitrator shall be selected by the parties from lists provided
by the American Arbitration Association. The parties agree to exchange all relevant documents
prior to any hearing, and further agree that any dispute over such exchange may be submitted to the
arbitrator for decision, which decision shall be binding on the parties. The parties further agree
to exchange hearing exhibits and designations of witnesses to be called at the hearing at least ten
(10) calendar days before any hearing as a party may not offer at the hearing as part of its direct
case any witness, evidence or document not so disclosed, unless such witness(es), evidence or
document(s) became available and/or known to the party who wishes to introduce such witness(es),
evidence and/or document(s) within the ten (10) calendar days prior to the arbitration, and such
witness(es), evidence or document(s) is immediately provided to the arbitrator and the other party,
or unless the evidence is for rebuttal or impeachment purposes and its need was not anticipated or
foreseen before the hearing.
(ii) Within 60 days of the production of all documents, evidence and witness list as outlined
in the preceding section, the arbitrator shall conduct the arbitration hearing. Each party will
have one day to present its case, unless, upon request the arbitrator determines that more or less
time is appropriate. Within 30 days of the arbitration hearing, the arbitrator shall render a
decision in writing to each party.
(iii) Any arbitration award must (i) be rendered in accordance with applicable law as
described in this Employment Agreement and (ii) be set forth in a written decision which sets forth
the reasons (including, without limitation, the conclusions of fact and/or law) upon which such
award is rendered. Judgment upon an arbitration award may be rendered in any court of competent
jurisdiction or application may be made to any such state or federal court of competent
jurisdiction for judicial acceptance of an order to enforcement of an
44
arbitration award, as the case may be. Any arbitration award shall be final and binding on
the parties. Once an issue has been arbitrated pursuant hereto, the decision of the arbitrator
shall be res judicata with respect to such issue.
(iv) The arbitrator shall have the power to issue subpoenas compelling testimony and/or the
production of documents from any person whether or not a party hereto, which subpoenas shall be
enforceable in all courts of competent jurisdiction in the Eastern District of Pennsylvania. In
addition, the arbitrator and attorney-of-record shall have the power to request through the
above-mentioned courts of competent jurisdiction the taking of depositions from any person, not a
party or a director, officer, executive, employee or agent of a party, who cannot be subpoenaed or
is unable to attend the arbitration, whose testimony the arbitrator deems both important and
relevant to the resolution of the issues presented for arbitration.
(v) The cost of the arbitration and all attorney fees shall be borne by the parties in such
proportion as the arbitrator shall direct, with such arbitrator to give due consideration to the
fault of the parties.
(vi) Notwithstanding
the foregoing, the parties need not arbitrate any request for
preliminary or permanent injunctive relief; such relief may be brought by either party in any state
or federal court in the Eastern District of Pennsylvania. Such litigation will toll the Restricted
Periods beginning on the alleged date of Executive’s violation until the date the dispute
is resolved.
(l) Jurisdiction of Courts. Any legal suit, action, claim, proceeding or
investigation arising out of or relating to Sections 11 or 12 of this Agreement may be instituted
in any state or federal court in the Eastern District of Pennsylvania, and each of the parties
hereto waives any objection which party may now or hereafter have to such venue of any such suit,
action, claim, proceeding or investigation, and irrevocably submits to the jurisdiction of any such
court. Any and all service of process and any other notice in any such suit, action, claim,
proceeding or investigation shall be effective against any party if given by registered or
certified mail, return receipt requested, or by any other means of mail which requires a signed
receipt, postage prepaid, mailed to such party as herein provided. If for any reason such service
of process by mail is ineffective, then Company shall be deemed to have appointed Xxxx X. Xxxxxxx,
Esquire, Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP, 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, as the authorized agent of Company to accept and acknowledge, on behalf of
Company, service of any and all process which may be served in any such suit, action, claim,
proceeding or investigation. Nothing herein contained shall be deemed to affect the right of any
party to serve process in any manner permitted by law or to commence legal proceedings or otherwise
proceed against any other party in any jurisdiction other than Pennsylvania.
(m) Survival. All provisions of this agreement which by their terms survive the
termination of Executive’s employment with Company, including without limitation the covenants of
Executive set forth in Sections 11 and 12 and the obligations of Company to make any
post-termination payments under this Agreement, shall survive termination of Executive’s employment
by Company and shall remain in full force and effect thereafter in accordance with their terms.
45
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement in
Philadelphia, Pennsylvania as of the date first above written.
| TRM Corporation |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chairman of the Board | |||
| Executive |
||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxx | ||||
46
ATTACHMENT “A”
SAMPLE RELEASE AGREEMENT
SAMPLE RELEASE AGREEMENT
1. In consideration for your General Release and the covenants and agreements expressed herein
and in the Employment Agreement, the Company, intending to be legally bound, agrees to pay you
(___) months of severance and the other severance payments, less taxes and other
deductions required by law, as stated in Section ___of the attached Employment Agreement.
2. In consideration of the receipt of the Company’s payments set forth in Section ___of
the attached Employment Agreement, you, intending to be legally bound, agree to release and forever
discharge the Company and its related or affiliated companies and Subsidiaries, and each of their
past, present and future officers, directors, attorneys, employees, executives, owners and agents,
and their respective successors and assigns (collectively, the “Releasees”), jointly and
severally, from any and all actions, complaints, charges, causes of action, lawsuits or claims of
any kind (collectively, “Claims”), known or unknown, which you, your heirs, agents, successors or
assigns ever had, now have or hereafter may have against the Releasees arising heretofore out of
any matter, occurrence or event existing or occurring prior to the execution hereof, including,
without limitation: any claims relating to or arising out of your employment with and/or
termination of employment by the Company and/or any of its related and/or affiliated companies or
Subsidiaries; any claims for unpaid or withheld wages, severance, benefits, bonuses, commissions
and/or other compensation of any kind; any claims for attorneys’ fees, costs or expenses; any
claims of discrimination and/or harassment based on age, sex, race, religion, color, creed,
disability, handicap, citizenship, national origin, ancestry, sexual preference or orientation, or
any other factor prohibited by Federal, State or Local law (such as the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act, the Pennsylvania Human Relations Act) any claims for retaliation
and/or any whistleblower claims; and/or any other statutory or common law claims, now existing or
hereinafter recognized, including, but not limited to, breach of contract, libel, slander, fraud,
wrongful discharge, promissory estoppel, equitable estoppel and misrepresentation.
3. The General Release does not apply to any claims to enforce this Release Agreement or to
any claims arising out of any matter, occurrence or event occurring after the execution of this
Release Agreement.
4. You acknowledge and agree that the Company’s payment under Section 1 above is not required
by any policy or plan and constitutes adequate consideration to support this Release Agreement, as
well as your covenants and agreements within the Employment Agreement.
5. You agree and represent that:
(a) You have read carefully the terms of this Release Agreement;
(b) You have had an opportunity to and have been encouraged to review this Release Agreement
with an attorney;
(c) You understand the meaning and effect of the terms of this Release Agreement;
47
(d) You were given as much time as you needed to determine whether you wished to enter into
this Release Agreement;
(e) The entry into and execution of this Release Agreement is your own free and voluntary act
without compulsion of any kind;
(f) No promise or inducement not expressed herein has been made to you; and
(g) You have adequate information to make a knowing and voluntary waiver.
6. After delivering a signed copy of this Release Agreement to the Company, attention of the
undersigned, you may revoke such acceptance by delivering a letter of revocation to the Company,
attention of the undersigned, within seven (7) days thereafter (the “Revocation Period”). This
Release Agreement shall become effective on the day following the expiration of the Revocation
Period if you have not exercised the revocation right as indicated in the preceding sentence. If
you exercise the revocation right, neither you nor the Company shall have any obligation hereunder.
* * *
If you agree with the terms set forth above, please sign this Agreement indicating that you
understand, agree with and intend to be bound by such terms.
We wish you the best in the future.
| Sincerely, | ||||||
| By: | ||||||
| Dated: | ||||||
UNDERSTOOD AND AGREED, |
||
INTENDING TO BE LEGALLY BOUND: |
||
Date |
||
Witness |
48
