Exhibit 10.O
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this 27th day of June, 1995, by and between
Nuclear Research Corporation, a corporation (hereinafter called "the
Company"), and Xxxxxx X. Xxxxxx, an individual (hereinafter called
"Employee").
W I T N E S E T H:
The Company wishes to continue employing Employee and Employee
wishes to continue being employed by the Company. Employment will continue
on the terms and conditions contained in this Agreement and not by the
terms and conditions of the prior written Agreement between the parties.
The prior Agreement, dated October 1, 1986, will be terminated as of the
date this Agreement is signed.
NOW, THEREFORE, in consideration of the facts, mutual promises
and covenants contained herein and intending to be legally bound hereby,
the Company and Employee agree as follows:
1. DEFINITIONS. As used herein, the following terms shall
have the following meanings:
(a) "AFFILIATE," shall mean a person who, (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 Employee is a parent, spouse or issue of
Employee, including persons in an adopted or step relationship.
(b) "BASE COMPENSATION" shall mean the annual rate of
compensation set forth in Section 5, as adjusted from time to time, in the
Company's sole discretion and in accordance with the formula provided in
Section 5(b). Base Compensation shall exclude any bonus payments.
(c) "CAUSE" shall include, but not be limited to, the
following: (i) Employee is convicted of any felony or any other crime
involving moral turpitude whether or not such felony or crime of moral
turpitude is related to Employee's employment; (ii) gross negligence or
willful misconduct of Employee in connection with his employment; (iii)
any act of fraud, misappropriation or personal dishonesty by Employee
relating to or involving the Company in any material way; (iv)
insubordination in connection with his employment; (v) material violation
by Employee of any of his obligations hereunder; (vi) any
misrepresentation made in this Agreement, in any application or any
information provided by Employee to the Company in connection with
Employee's employment with the Company and/or selection for Employee's
position; (vii) unauthorized disclosure of confidential information,
unless such disclosure was (A) believed in good faith by Employee to be
appropriate in the course of properly carrying out his duties under the
Agreement, or (B) required by an order of a court having jurisdiction over
the subject matter or a summons, subpoena or order of any legislative body
(including any committee thereof) or any governmental or administrative
agency; (viii) use of illegal drugs by Employee; or (ix) the existence of
any material conflict between the interests of the Company and Employee
that is not disclosed in writing by Employee to the Board and approved by
the Board in advance.
1
(d) "DISABILITY" shall mean Employee's inability to
perform the essential functions of his job, with or without a reasonable
accommodation because of a physical or mental health condition.
(e) "TERM OF EMPLOYMENT" shall mean the period specified
in Section 4 hereof.
2. EMPLOYMENT. The Company hereby continues to emploY
Employee and Employee hereby accepts continued employment by the Company
for the period and upon the terms and conditions specified in this
Agreement.
3. OFFICE AND DUTIES.
(a) Employee shall serve the Company generally as
Executive Vice President and his authority, duties and powers in such
capacity shall be such as may be determined from time to time by the Board
of Directors or the President of the Company, provided however, such
authority, duties and powers are consistent with the position of an
executive officer of a Pennsylvania business corporation.
(b) Employee's title shall not be changed without written
authorization of Employee.
(c) During Employee's employment with the Company,
Employee shall devote his entire working time, energy, skill and best
efforts to the performance of his duties hereunder in a manner which will
faithfully and diligently further the business and interests of the
Company and shall not during the term of Employee's employment with the
Company, directly or indirectly, be engaged in any other business activity
requiring any amount of his business time (whether or not such business
activity is pursued for gain, profit or pecuniary advantage), except for
services which are or may be rendered to or for the benefit of any
Affiliate of the Company.
(d) Employee is not permitted or authorized to make any
disbursements or purchases or to incur any liabilities on behalf of the
Company or otherwise to obligate the Company in any matter outside of his
general duties.
4. TERM.
(a) This Agreement shall be for an initial term of seven
(7) years, commencing on July 1, 1995, and ending on June 30, 2002, unless
sooner terminated as hereinafter provided.
(b) Unless either party elects to terminate this Agreement
at the end of the initial term or any renewal term by giving the other
party written notice of such election at least thirty (30) days before the
expiration of the then current term, this Agreement shall be deemed to
have been renewed for an additional term of one (1) year commencing on the
day after the expiration of the then current term.
5. BASE COMPENSATION AND BONUSES.
(a) For all of the services rendered by Employee to the
Company, Employee shall receive Base Compensation at the annual rate of
Two Hundred Twenty-One Thousand Dollars ($221,000), less taxes and other
2
deductions required by law. The Base Compensation shall be paid to the
Employee in bi-weekly installments.
(b) Employee's Base Compensation shall be automatically
increased as of January 1 of each year during the initial term hereof or
during any renewal term. The increase in Employee's Compensation shall be
at the Company's discretion and will be no less than the increase in the
Consumer Price Index (as defined by the United States's Department of
Labor) and no more than the average percentage increase in Base
Compensation (i.e., exclusive of bonuses) of the highest three percentage
Base Compensation increases of the Company's Officers, other than the
Employee, for the adjustment year.
(c) The Company may, pursuant to action by the Board of
Directors of the Company, otherwise increase, but not decrease the Base
Compensation payable to Employee hereunder during the initial term of this
Agreement or during any renewal term.
(d) In addition to the Base Compensation payable by the
Company to Employee, if the Employee is employed by the Company at the end
of each fiscal year he may be eligible to receive a bonus.
(e) If employed at the end of the fiscal year, Employee
may be eligible to receive a bonus equal to the sum of: (i) 1.5% of the
Company's income before income taxes in excess of 10% and up to 20% of the
average shareholders' equity of the Company as of the end of the preceding
fiscal year plus (ii) 2.0% of the Company's income before income taxes in
excess of 20% and up to 30% of the average shareholders' equity of the
Company as of the end of the preceding fiscal year, plus (iii) 2.25% of
the Company's income before income taxes in excess of 30% of the average
shareholders' equity of the Company as of the end of the preceding fiscal
year. For purposes of this Section, "average shareholders' equity" is
defined as the shareholders' equity of the preceding three (3) fiscal
years divided by three.
6. BENEFITS AND EXPENSES.
(a) During Employee's employment he shall be entitled to
participate in the Company's insured benefits and policies (including
payment or reimbursement of disability insurance, participation in
medical, health, accident or group insurance plans and any other benefits
or policies) generally made available by the Board from time to time to
other executive employees of the Company, according to the terms,
restrictions, conditions and exclusions of such benefits or policies.
However, both parties agree that the benefits available during the
Employee's employment may be altered, amended or eliminated by the Board
of Directors at any time and in its sole discretion. Nothing in this
Agreement shall create any rights or benefits beyond those which may exist
under the applicable plan document and/or policy statement.
(b) Employee shall be entitled to take vacations at such
time and for such duration as shall be reasonable and be approved by the
President of the Company. The total amount of vacation time per year
shall not be more than twenty (20) business days (four (4) weeks) per
year.
(c) During Employee's employment, the Company will provide
Employee with an automobile of reasonable value and age to use during his
employment with the Company and will reimburse Employee for all reasonable
and necessary expenses associated with Employee's use of the car in
3
connection with the performance of Employee's duties hereunder.
Reimbursement will be provided upon receipt of proper documentation or
vouchers from Employee. No reimbursement will be paid for any traffic or
parking tickets received by Employee.
(d) The Company also agrees to reimburse Employee upon
presentation of vouchers for all other reasonable expenses incurred by
Employee in the performance of his duties hereunder.
7. INABILITY.
(a) If Employee is unable to perform the essential
functions of his job, with or without reasonable accommodations, for
whatever reason, for a period of twelve (12) consecutive weeks or for a
cumulative period of fifteen (15) weeks during any twelve-month period,
Company shall have the right to terminate this Agreement and Employee's
employment.
(b) If Employee's inability is due to a Disability, the
Company's sole obligation is to pay Employee's last full year's Base
Compensation for one year following termination due to the Employee's
inability.
(c) If Employee's inability is not due to a Disability,
Employee is entitled only to payment for all unpaid, Base Compensation
accrued to the date of termination.
(d) The termination of this Agreement and Employee's
employment with the Company pursuant to this Section 7 shall release the
Company from all liabilities and obligations, other than as described in
this Section 7. The Employee is not released from Employee's obligations
and restrictions under Sections 13 and 14 of this Agreement.
8. DEATH.
(a) In the event the Employee dies, subject to Subsections
8(b) and 8(c), the Company's obligation to Employee shall be limited to
payment to Employee's beneficiary of a sum equal to the Employee's Base
Compensation, less taxes and other normal deductions, for his most recent
two (2) full years of employment with the Company, not to exceed Five
Hundred Thousand Dollars ($500,000).
The gross payments to Employee's beneficiary shall be
made in accordance with the terms, conditions and restrictions of any life
insurance policy obtained by the Company as provided in Subsection 8(b)
below; provided, however, the Company may prepay any amounts due to
Employee's beneficiary.
(b) Payments described within Subsection 8(a) above are
contingent upon the Company obtaining a life insurance policy, at a
reasonable cost, to completely cover the obligation contained therein.
(c) If the Company is not able to obtain a policy
described above in Subsection 8(b) for at least Five Hundred Thousand
Dollars ($500,000), the Company will only be responsible to pay Employee's
beneficiary a sum equal to Employee's most recent year's Base
Compensation. Payments will be made over a twelve month period in equal
installments, beginning one month from Employee's death.
4
(d) This Agreement terminates immediately upon Employee's
death and only Section 8 of the Agreement survives the termination.
9. TERMINATION OF THE COMPANY'S BUSINESS.
(a) If the Company merges or consolidates with a company
that controls over 50% of the voting control of the Company or is acquired
by any party who is not an Affiliate of the Company as of the date hereof,
the Company may terminate this Agreement and Employee's employment on two
(2) weeks prior notice.
(b) If termination of Employee's employment and this
Agreement are pursuant to this Section 9, the Company shall pay Employee
his Base Compensation accrued through the date of termination plus a sum
equal to the Employee's most recent two (2) full years' Base Compensation,
less taxes and other normal deductions. Any such payment to the Employee
shall be made in two lump sums: one half (1/2) of the two years of Base
Compensation to be paid within thirty (30) days of Employee's termination
and one half (1/2) of the two years of Base Compensation to be paid within
thirteen (13) months of the Employee's date of termination. Employee
shall not, however, be released from Employee's obligations and
restrictions under Sections 13 and 14 of this Agreement.
10. TERMINATION BY THE COMPANY FOR CAUSE.
(a) The Company may terminate this Agreement for Cause on
one (1) days notice after providing Employee with ten (10) days to cure.
(b) Upon termination for Cause, the Company shall have no
liability or obligation under this Agreement, except to pay Employee his
unpaid Base Compensation accrued through the date of termination.
(c) Employee's termination for Cause does not relieve
Employee of the obligations or restrictions in Sections 13 and 14 of this
Agreement.
11. TERMINATION BY THE COMPANY WITHOUT CAUSE.
(a) Notwithstanding any other provision of this Agreement,
Employee remains an at-will employee, and therefore, the Company shall
have the right to terminate the employment of Employee hereunder for any
or no reason at all.
(b) If the Employee is terminated without Cause the
Company shall be obligated to pay Employee, subject to the restriction in
Subsection 11(c), Employee's Base Compensation accrued through the date of
termination and the Employee's Base Compensation for the remainder of the
Agreement. The rate of Base Compensation paid for the remainder of the
Agreement will be at the rate of Employee's Base Compensation as of the
date of Employee's termination. Payments will be made in accordance with
the regular pay practices of the Company as if Employee were an employee.
(c) If the Employee is terminated by the Company without
Cause and then obtains other employment, Employee shall promptly advise
Company in writing and any Compensation earned by Employee from such other
employment will be deducted from the amount owed by the Company to
Employee. Compensation, for purposes of this Subsection 9(c), includes
but is not limited to wages, overtime pay, commissions and bonus payments
received by the Employee.
5
(d) Employee's termination pursuant to this Section 11
does not relieve him of his obligations and restrictions stated in
Sections 13 and 14 of this Agreement.
12. TERMINATION BY EMPLOYEE.
(a) Notwithstanding any other provision of this Agreement,
Employee may terminate his Employment and this Agreement for any or no
reason, upon thirty (30) days' written notice to the Company. The Company
may waive Employee's obligation to work during this thirty (30) day notice
period and terminate his employment immediately. However, if the Company
takes this action in the absence of agreement by Employee, Employee shall
receive unpaid Base Compensation which otherwise would be due through the
end of the notice period.
(b) Other than as specifically set forth in this Section
12, Employee's termination pursuant to this Section 12 will release the
Company from all liabilities and obligations to the Employee.
(c) Termination of Employee's employment with Company
pursuant to this Section 12 shall not, however, release Employee from
Employee's obligation and restrictions under Sections 13 and 14 of this
Agreement.
13. THE COMPANY PROPERTY.
(a) All advertising, sales, and other materials or
articles or information, including without limitation data processing
reports, customer sales analyses, invoices, price lists or information,
samples, or any other materials or data of any kind furnished to Employee
by the Company or developed by Employee on behalf of the Company or at the
Company's direction or for the Company's use or otherwise in connection
with Employee's employment hereunder, are and shall remain the sole and
confidential property of the Company. If the Company requests the return
of such materials at any time during, at or after the termination of
Employee's employment, Employee shall deliver the same to the Company
immediately, retaining no copies.
(b) Immediately upon termination of Employee's employment,
whether initiated by Employee or Company, whether with or without Cause,
Employee shall deliver to the Company's President, retaining no copies,
all Company property (for example, keys and credit cards), and all
documents, records, files, customer lists, computer programs and other
data relating to the Company, regardless of where or by whom said writings
were kept or prepared.
14. NONCOMPETITION, TRADE SECRETS, ETC.
(a) During Employee's employment with the Company and for
a period of one (1) year after the termination of Employee's employment,
for whatever reason, whether initiated by Employee or the Company, whether
with or without cause, Employee shall not directly or indirectly (i)
induce or attempt to induce, any employee, present or future customer or
supplier of the Company or any Affiliate to terminate his employment or
its relationship with the Company or any Affiliate; (ii) solicit or
attempt to solicit, sell, lease, or offer to sell or lease, except on
behalf of the Company or any Affiliate, to any present or future customer
of the Company or any Affiliate, any goods or services competitive to the
goods and services now or hereafter offered for sale or lease by the
6
Company or any Affiliate; or (iii) engage in (as a principal, shareholder,
partner, director, officer, agent, employee, consultant or stockholder who
owns greater than five percent (5%) of the outstanding shares of stock, or
in any other capacity) or be financially interested in any business
operation within the United States of America which is involved in
business activities which can reasonably be deemed to be in competition
with business activities carried on by the Company, or being definitely
planned by the Company at the time of the termination of Employee's
employment.
(b) During Employee's employment and at all times
thereafter, Employee shall not use for Employee'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 the
Company, any other information which Employee acquires in the course of
his employment which is not otherwise lawfully known by and readily
available to the general public. This confidential information includes,
but is not limited to: any information regarding the Company's business
methods, policies, procedures, or techniques; research or development
projects or results; trade secrets or other knowledge or processes of or
developed by the Company; any names and addresses of customers or clients
or any data on or relating to past, present or prospective customers or
clients; any other confidential information relating to or dealing with
the business operations or activities of the Company, made known to
Employee or learned or acquired by Employee while in the employ of the
Company.
(c) Employee acknowledges that the restrictions and
covenants contained in this Section 14, in view of the nature of the
business in which the Company is engaged and the Employee's position
within the Company, are reasonable and necessary in order to protect the
legitimate interests of the Company, that their enforcement will not
impose a hardship on Employee or significantly impair his ability to earn
a livelihood, and that any violation thereof would result in irreparable
injuries to the Company. Therefore, Employee acknowledges that, in the
event of his violation of any of these restrictions, the Company shall be
entitled to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain preliminary and
permanent injunctive relief, as well as damages and an equitable
accounting of all earnings, profits and other benefits arising from such
violation and/or to enforce a specific performance thereof by Employee,
which rights shall be cumulative and in addition to any other rights or
remedies to which the Company may be entitled.
(d) If the restrictions in this Subsections 14 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 in such area and for such time as is adjudged
to be reasonable. If Employee violates any of the restrictions contained
in this Subsection 14, the period of such violation (from the commencement
of any such violation until such time as such violation shall be cured by
Employee to the satisfaction of the Company) shall not count toward or be
included in the two year restrictive period contained in the Subsections
above.
(e) The provisions of this Section 14 shall survive the
expiration of this Agreement at the end of its term, at any time prior
thereto, or at the end of any renewal term.
7
15. PRIOR AGREEMENTS. Employee represents to the Company (a)
that there are no restrictions, agreements or understandings whatsoever to
which Employee is a party which would prevent or make unlawful his
execution or performance of this Agreement, (b) that there are no
agreements or restrictions or understandings whatsoever to which Employee
is a party which place any limitations on the companies or individuals
with which or whom he may do business; (c) that he is free and able to
execute any agreement and to enter into employment with the Company and
(d) that this Agreement supersedes any other written or oral agreement(s)
between Employee and the Company.
16. 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 state or other 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
when delivered (personally, by courier services such as Federal Express,
or by Messenger) or when deposited in the United States mails, registered
or certified mail, postage pre-paid, return receipt requested, addressed
as set forth below:
(i) If to Employee:
Xxxxxx X. Xxxxxx
0 Xxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
------------------------
------------------------
------------------------
8
(ii) If to the Company:
Nuclear Research Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, President
With a copy to:
Xxxx X. Xxxxxxx, Esquire
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx
Twelfth Floor Packard Building
15th & Chestnut Streets
Philadelphia, PA 19102
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 16(c). Such
changed designation is effective ten (10) days after such changed
designated is supplied.
(d) BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the Company and its Affiliates
and its successors and assigns including any transferee of the business
operation, as a going concern, in which Employee will be employed and
shall be binding upon Employee, his Affiliates and personal
representatives. The Company may assign its rights and obligations under
this Agreement in whole or in part to any one or more Affiliates, but no
such assignment shall relieve the Company of its obligations to Employee
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. Any photographic or xerox
copy of this Agreement, with all signatures reproduced on one or more sets
of signature pages, shall be considered for all purposes as if it were an
executed counterpart of this Agreement.
(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 subject matter
hereof, 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
9
with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing, signed by both parties.
(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) SETTLEMENT OF DISPUTES. Any disputes regarding the
interpretation or enforcement of the Agreement shall be resolved by
binding arbitration to be held in the Commonwealth of Pennsylvania in
accordance with the rules and procedures of the American Arbitration
Association then in effect, except claims by the Company with regard to
alleged breaches by Employee of any obligations and restrictions in
Sections 13 and 14 above may be brought by the Company in any court of
competent jurisdiction. The Arbitration Hearing will take place in the
Commonwealth of Pennsylvania. If the parties cannot agree on a location
for the Hearing within thirty (30) days, the Arbitrator will select the
location.
IN WITNESS WHEREOF, the parties have duly executed and delivered
this Agreement as of the day and year first above written.
NUCLEAR RESEARCH CORPORATION
/s/ Xxxxxx X. Xxxxxx 06/27/95(SEAL) By: /s/ Xxxx X. Xxxxxxx 06/27/95
------------------------------ ------------------------------
Xxxxxx X. Xxxxxx Date President Date
Attest: /s/ Xxxxxx X. Xxxxx Attest: /s/ Xxxx X. Xxxxxxx
--------------------- ------------------------
