EXHIBIT 10.8
SEVERANCE AND NON-COMPETITION AGREEMENT
Agreement made as of the 4th day of April, 1996, between
Maritrans Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxx, Xx.
(the "Employee").
WHEREAS, the Employee is being hired by the Company as its
Vice President, Treasurer and Chief Financial Officer;
WHEREAS, the board of directors of the Company recognizes
that, as is the case with many publicly held corporations, the possibility of a
change in control of Maritrans and the Company exists and that such possibility,
and the uncertainty and questions which it may raise among management, may
result in the departure or distraction of key management personnel to the
detriment of the Company;
WHEREAS, the board of directors of the Company has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of key members of the Company's management to their
assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change in control of the
Company; and
WHEREAS, in consideration for the Employee accepting
employment with the Company and agreeing not to compete with the Company in the
event the Employee's employment is terminated, the Company agrees that the
Employee shall receive the compensation set forth in this Agreement as a cushion
against the financial and career
impact on the Employee in the event the Employee's employment with the Company
is terminated without cause whether or not there is a Change of Control of the
Company;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Definitions. For all purposes of this Agreement, the
following terms shall have the meanings specified in this Section unless the
context clearly otherwise requires:
(a) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b) "Base Compensation" shall mean the average of the total
cash remuneration (total remuneration for the year 1996) received by the
Employee in all capacities with the Company, and its Subsidiaries or Affiliates,
as reported for Federal income tax purposes on Form W-2, together with any and
all salary reduction authorized amounts under any of the Company's benefit plans
or programs, but excluding any amounts attributable to the exercise of stock
options by the Employee under the Company's Equity Compensation Plan for the
five most recent full calendar years (annualized in accordance with applicable
regulations in the case of a calendar year in which the Employee was not paid
for the full calendar year) immediately preceding the calendar year in which
occurs a Change of Control.
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(c) "Base Salary" shall mean the rate of normal salary being
paid to the Employee at the time of his Termination Date, but in no case less
than $155,000 per annum.
(d) "Beneficial Owner" of any securities shall mean:
(i) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such right
is exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the "Beneficial
Owner" of securities tendered pursuant to a tender or exchange offer made by
such Person or any of such Person's Affiliates or Associates until such tendered
securities are accepted for payment, purchase or exchange;
(ii) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), including without limitation
pursuant to any agreement, arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be deemed the "Beneficial
Owner" of any security under this subsection (ii) as a result of an oral or
written agreement, arrangement or understanding to vote such security if such
agreement, arrangement or understanding (A) arises solely from a revocable proxy
given in response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions of the General Rules and
Regulations under the Exchange Act, and
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(B) is not then reportable by such Person on Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(iii) where voting securities are beneficially owned, directly
or indirectly, by any other Person (or any Affiliate or Associate thereof) with
which such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing) for the
purpose of acquiring, holding, voting (except pursuant to a revocable proxy as
described in the proviso to subsection (ii) above) or disposing of any voting
securities of the Company; provided, however, that nothing in this subsection
(d) shall cause a Person engaged in business as an underwriter of securities to
be the "Beneficial Owner" of any securities acquired through such Person's
participation in good faith in a firm commitment underwriting until the
expiration of forty days after the date of such acquisition.
(e) "Board" shall mean the board of directors of the Company.
(f) "Cause" shall mean 1) misappropriation of funds, 2)
habitual insobriety or substance abuse, 3) conviction of a crime involving moral
turpitude, or 4) gross negligence in the performance of duties, which gross
negligence has had a material adverse effect on the business, operations,
assets, properties or financial condition of the Company and its Subsidiaries
taken as a whole.
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(g) "Change of Control" shall be deemed to have taken place if
(i) any Person (except the Company or any employee benefit plan of the Company
or of any Affiliate, any Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such employee benefit plan),
together with all Affiliates and Associates of such Person, shall become the
Beneficial Owner in the aggregate of 20% or more of the common stock of the
Company then outstanding); provided, however, that no "Change of Control" shall
be deemed to occur during any period in which any such Person, and its
Affiliates and Associates, are bound by the terms of a standstill agreement
under which such parties have agreed not to acquire more than 30% of the common
stock of the Company of the Common Stock of the Company then outstanding or to
solicit proxies, or (ii) during any twenty-four month period, individuals who at
the beginning of such period constituted the Board cease for any reason to
constitute a majority thereof, unless the election, or the nomination for
election by the Company's shareholders, of at least seventy-five percent of the
directors who were not directors at the beginning of such period was approved by
a vote of at least seventy-five percent of the directors in office at the time
of such election or nomination who were directors at the beginning of such
period.
(h) "Normal Retirement Date" shall mean the first day of the
calendar month coincident with or next following the Employee's 65th birthday.
(i) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(j) "Subsidiary" shall have the meaning ascribed to such term
in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
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(k) "Termination Date" shall mean the date of receipt of the
Notice of Termination described in Section 2 hereof or any later date specified
therein, as the case may be.
(l) "Termination of Employment" shall mean the termination of
the Employee's actual employment relationship with the Company.
(m) "Termination following a Change of Control" shall mean a
Termination of Employment within two years after a Change of Control either:
(i) initiated by the Company for any reason other than (x) the
Employee's continuous illness, injury or incapacity for a period of six
consecutive months or (y) for "Cause;" or
(ii) initiated by the Employee upon one or more of the
following occurrences:
(A) any failure of the Company to comply with and satisfy any
of the terms of this Agreement;
(B) any significant reduction by the Company of the authority,
duties or responsibilities of the Employee;
(C) any removal by the Company of the Employee from the
employment grade, compensation level or officer positions
which the Employee holds as of the effective date hereof
except in connection with promotions to higher office;
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(D) the requirement that the Employee undertake business
travel to an extent substantially greater than is reasonable
and customary for the position the Employee holds.
2. Notice of Termination. Any Termination of Employment shall
be communicated by a Notice of Termination to the other party hereto given in
accordance with Section 14 hereof. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific reasons for
the termination, (ii) briefly summarizes the facts and circumstances deemed to
provide a basis for termination of the Employee's employment, and (iii) if the
Termination Date is other than the date of receipt of such notice, specifies the
Termination Date (which date shall not be more than 15 days after the giving of
such notice).
3. Severance Compensation upon Termination.
(a) In the event of the Employee's involuntary Termination of
Employment for reason other than Cause, the Company shall pay to the Employee,
upon the execution of a release in form and substance satisfactory to the
Company and its counsel, his regular Base Salary, subject to customary
employment taxes and deductions, for 18 months following the Termination Date
but all other benefit coverages, retirement benefits and fringe benefit
eligibility shall cease upon the Termination Date subject to applicable rights
under COBRA. For purposes of this subparagraph 3(a), an "involuntary Termination
of Employment for reason other than Cause" shall include the following
circumstances:
(i) The termination of this Agreement pursuant to any "Term of
Agreement" provisions in paragraph 15, unless the termination is for cause;
and/or
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(ii) if, as a condition of employment, Employee is required to
relocate his principal place of business to a location in excess of fifty (50)
miles from the Company's current offices at One Xxxxx Square, Philadelphia,
Pennsylvania.
(b) Subject to the provisions of Section 11 hereof, in the
event of the Employee's Termination following a Change of Control, the Company
shall pay to the Employee, within fifteen days after the Termination Date (or as
soon as possible thereafter in the event that the procedures set forth in
Section 11(b) hereof cannot be completed within 15 days), and in lieu of any
payment under subsection (a) above, an amount in cash equal to 2.99 times the
Employee's Base Compensation.
(c) In the event the Employee's Normal Retirement Date would
occur prior to 24 months after the Termination Date, the aggregate cash amount
determined as set forth in (a) above shall be reduced by multiplying it by a
fraction, the numerator of which shall be the number of days from the
Termination Date to the Employee's Normal Retirement Date and the denominator of
which shall be 730.
4. Other Payments. The payment due under Section 3 hereof
shall be in addition to and not in lieu of any payments or benefits due to the
Employee under any other plan, policy or program of the Company except that no
payments shall be due to the Employee under the Company's then severance pay
plan for employees.
5. Establishment of Trust. The Company may establish an
irrevocable trust fund pursuant to a trust agreement to hold assets to satisfy
its obligations hereunder.
Funding of such trust fund shall be subject to the Company's discretion, as set
forth in the agreement pursuant to which the fund will be established.
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6. Enforcement.
(a) In the event that the Company shall fail or refuse to make
payment of any amounts due the Employee under Sections 3(b) and 4 hereof within
the respective time periods provided therein, the Company shall pay to the
Employee, in addition to the payment of any other sums provided in this
Agreement, interest, compounded daily, on any amount remaining unpaid from the
date payment is required under Section 3(b) and 4, as appropriate, until paid to
the Employee, at the rate from time to time announced by Mellon Bank (East) as
its "prime rate" plus 2%, each change in such rate to take effect on the
effective date of the change in such prime rate.
(b) It is the intent of the parties that the Employee not be
required to incur any expenses associated with the enforcement of his rights
under Section 3(b) of this Agreement by arbitration, litigation or other legal
action because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Employee hereunder. Accordingly, the
Company shall pay the Employee on demand the amount necessary to reimburse the
Employee in full for all expenses (including all attorneys' fees and legal
expenses) incurred by the Employee in enforcing any of the obligations of the
Company under this Agreement.
7. No Mitigation. The Employee shall not be required to
mitigate the amount of any payment or benefit provided for in this Agreement by
seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for herein be reduced by any compensation earned by other
employment or otherwise.
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8. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Employee's continuing or future participation in or rights
under any benefit, bonus, incentive or other plan or program provided by the
Company or any of its Subsidiaries or Affiliates and for which the Employee may
qualify; provided, however, that the Employee hereby waives the Employee's right
to receive any payments under any severance pay plan or similar program
applicable to other employees of the Company .
9. No Set-Off. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Employee or others.
10. Taxes. Any payment required under this Agreement shall be
subject to all requirements of the law with regard to the withholding of taxes,
filing, making of reports and the like, and the Company shall use its best
efforts to satisfy promptly all such requirements.
11. Certain Reduction of Payments.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event that it shall be determined that any payment or
distribution by the Company to or for the benefit of the Employee, whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would constitute an "excess
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parachute payment" within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), then the aggregate present value of
amounts payable or distributable to or for the benefit of the Employee pursuant
to this Agreement (such payments or distributions pursuant to this Agreement are
hereinafter referred to as "Agreement Payments") shall be reduced (but not below
zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed
in present value which maximizes the aggregate present value of Agreement
Payments without causing any Payment to be subject to the taxation under Section
4999 of the Code. For purposes of this Section 11, present value shall be
determined in accordance with Section 280G(d)(4) of the Code.
(b) All determinations to be made under this Section 11 shall
be made by Ernst & Young (or the Company's independent public accountant
immediately prior to the Change of Control if other than Ernst & Young (the
"Accounting Firm")), which firm shall provide its determinations and any
supporting calculations both to the Company and the Employee within 10 days of
the Termination Date. Any such determination by the Accounting Firm shall be
binding upon the Company and the Employee. Within five days after this
determination, the Company shall pay (or cause to be paid) or distribute (or
cause to be distributed) to or for the benefit of the Employee such amounts as
are then due to the Employee under this Agreement.
(c) As a result of the uncertainty in the application of
Section 280G of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Agreement Payments, as the case
may be, will have been made by the Company which should not have been made
("Overpayment") or that additional Agreement
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Payments which have not been made by the Company could have been made
("Underpayment"), in each case, consistent with the calculations required to be
made hereunder. Within two years after the Termination of Employment, the
Accounting Firm shall review the determination made by it pursuant to the
preceding paragraph. In the event that the Accounting Firm determines that an
Overpayment has been made, any such Overpayment shall be treated for all
purposes as a loan to the Employee which the Employee shall repay to the Company
together with interest at the applicable Federal rate provided for in Section
7872(f)(2) of the Code (the "Federal Rate"); provided, however, that no amount
shall be payable by the Employee to the Company if and to the extent such
payment would not reduce the amount which is subject to taxation under Section
4999 of the Code. In the event that the Accounting Firm determines that an
Underpayment has occurred, any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Employee together with interest at the
Federal Rate.
(d) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in subsections (b) and (c) above shall
be borne solely by the Company. The Company agrees to indemnify and hold
harmless the Accounting Firm of and from any and all claims, damages and
expenses resulting from or relating to its determinations pursuant to
subsections (b) and (c) above, except for claims, damages or expenses resulting
from the gross negligence or willful misconduct of the Accounting Firm.
12. Confidential Information. The Employee recognizes and
acknowledges that, by reason of his employment by and service to the Company, he
has had and will continue to have access to confidential information of the
Company and its
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affiliates, including, without limitation, information and knowledge pertaining
to products and services offered, innovations, designs, ideas, plans, trade
secrets, proprietary information, distribution and sales methods and systems,
sales and profit figures, customer and client lists, and relationships between
the Company and its affiliates and other distributors, customers, clients,
suppliers and others who have business dealings with the Company and its
affiliates ("Confidential Information"). The Employee acknowledges that such
Confidential Information is a valuable and unique asset and covenants that he
will not, either during or after his employment by the Company, disclose any
such Confidential Information to any person for any reason whatsoever without
the prior written authorization of the Board, unless such information is in the
public domain through no fault of the Employee or except as may be required by
law.
13. Non-Competition.
(a) During his employment by the Company and for a period of
one year thereafter, the Employee will not, unless acting with the prior written
consent of the Board, directly or indirectly, own, manage, operate, join,
control, finance or participate in the ownership, management, operation, control
or financing of, or be connected as an officer, director, employee, partner,
principal, agent, representative, consultant or otherwise with or use or permit
his name to be used in connection with, any business or enterprise engaged in a
geographic area in which the Company or any of its affiliates is operating
either during his employment by the Company or on the Termination Date, as
applicable, presently on the East Coast of the United States or at any port in
the Gulf of Mexico (whether or not such business is physically located within
those areas) (the "Geographic Area"), in any business
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that is a customer of, competitive to, a business from which the Company or any
of its affiliates derive at least five percent of its respective gross revenues
either during his employment by the Company or on the Termination Date, as
applicable. It is recognized by the Employee that the business of the Company
and its affiliates and the Employee's connection therewith is or will be
involved in activity throughout the Geographic Area, and that more limited
geographical limitations on this non-competition covenant are therefore not
appropriate. The Employee also shall not, directly or indirectly, during such
one-year period (a) solicit or divert business from, or attempt to convert any
client, account or customer of the Company or any of its affiliates, whether
existing at the date hereof or acquired during Employee's employment nor (b)
following Employee's employment, solicit or attempt to hire any then employee of
the Employer or of any of its affiliates.
(b) The foregoing restriction shall not be construed to
prohibit the ownership by the Employee of less than one percent (1%) of any
class of securities of any corporation which is engaged in any of the foregoing
businesses having a class of securities registered pursuant to the Securities
Exchange Act of 1934, provided that such ownership represents a passive
investment and that neither the Employee nor any group of persons including
Employee in any way, either directly or indirectly, manages or exercises control
of any such corporation, guarantees any of its financial obligations, otherwise
takes any part in its business, other than exercising his rights as a
shareholder, or seeks to do any of the foregoing.
14. Equitable Relief.
(a) Employee acknowledges that the restrictions contained in
Sections 12 and 13 hereof are reasonable and necessary to protect the legitimate
interests of the
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Company and its affiliates, that the Company would not have entered into this
Agreement in the absence of such restrictions, and that any violation of any
provision of those Sections will result in irreparable injury to the Company.
The Employee represents that his experience and capabilities are such that the
restrictions contained in Section 13 hereof will not prevent the Employee from
obtaining employment or otherwise earning a living at the same general level of
economic benefit as anticipated by this Agreement. The Employee further
represents and acknowledges that (i) he has been advised by the Company to
consult his own legal counsel in respect of this Agreement, and (ii) that he has
had full opportunity, prior to execution of this Agreement, to review thoroughly
this Agreement with his counsel.
(b) The Employee agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of Sections 12 or 13 hereof, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled. In the event that any of the provisions of
Sections 12 or 13 hereof should ever be adjudicated to exceed the time,
geographic, service, or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, service, or other limitations permitted by
applicable law.
(c) The Employee irrevocably and unconditionally (i) agrees
that any suit, action or other legal proceeding arising out of Section 12 or 13
hereof, including without limitation, any action commenced by the Company for
preliminary and permanent injunctive relief or other equitable relief, may be
brought in the United States District Court
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for the Eastern District of Pennsylvania, or if such court does not have
jurisdiction or will not accept jurisdiction, in any court of general
jurisdiction in Philadelphia County, Pennsylvania, (ii) consents to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding, and (iii) waives any objection which Employee may have to the laying
of venue of any such suit, action or proceeding in any such court. Employee also
irrevocably and unconditionally consents to the service of any process,
pleadings, notices or other papers in a manner permitted by the notice
provisions of Section 17 hereof.
(d) Employee agrees that he will provide, and that the Company
may similarly provide, a copy of Sections 12 and 13 hereof to any business or
enterprise (i) which he may directly or indirectly own, manage, operate,
finance, join, control or participate in the ownership, management, operation,
financing, control or control of, or (ii) with which he may be connected with as
an officer, director, employee, partner, principal, agent, representative,
consultant or otherwise, or in connection with which he may use or permit his
name to be used; provided, however, that this provision shall not apply in
respect of Section 3 hereof after expiration of the time period set forth
therein.
15. Term of Agreement. The term of this Agreement shall be for
two years from the date hereof and shall be automatically renewed for successive
one-year periods unless the Company notifies the Employee in writing that this
Agreement will not be renewed at least sixty days prior to the end of the
current term (such notice shall be deemed an involuntary Termination of
Employment); provided, however, that (i) after a Change of Control during the
term of this Agreement, this Agreement shall remain in effect until all of the
obligations of the parties hereunder are satisfied, and (ii) this Agreement
shall terminate
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if, prior to a Change of Control, the employment of the Employee with the
Company or any of its Subsidiaries, as the case may be, shall terminate for any
reason other than as provided herein.
16. Successor Company. The Company shall require any successor
or successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Employee, to
acknowledge expressly that this Agreement is binding upon and enforceable
against the Company in accordance with the terms hereof, and to become jointly
and severally obligated with the Company to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession or successions had taken place. Failure of the Company to
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement. As used in this Agreement, the Company shall mean
the Company as hereinbefore defined and any such successor or successors to its
business and/or assets, jointly and severally.
17. Notice. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be delivered personally or mailed by registered or
certified mail, return receipt requested, or by overnight express courier
service, as follows:
If to the Company, to:
Maritrans Inc.
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Corporate Secretary
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If to the Employee, to:
Xxxxxx X. Xxxx, Xx.
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
or to such other names or addresses as the Company or the Employee, as the case
may be, shall designate by notice to the other party hereto in the manner
specified in this Section; provided, however, that if no such notice is given by
the Company following a Change of Control, notice at the last address of the
Company or to any successor pursuant to Section 16 hereof shall be deemed
sufficient for the purposes hereof. Any such notice shall be deemed delivered
and effective when received in the case of personal delivery, five days after
deposit, postage prepaid, with the U.S. Postal Service in the case of registered
or certified mail, or on the next business day in the case of overnight express
courier service.
18. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the Commonwealth of Pennsylvania without giving
effect to any conflict of laws provisions.
19. Contents of Agreement, Amendment and Assignment.
(a) This Agreement supersedes all prior agreements, sets forth
the entire understanding between the parties hereto with respect to the subject
matter hereof and cannot be changed, modified, extended or terminated except
upon written amendment executed by the Employee and approved by the Board and
executed on the Company's behalf by a duly authorized officer. The provisions of
this Agreement may provide for payments to the Employee under certain
compensation or bonus plans under circumstances where such plans would not
provide for payment thereof. It is the specific intention of the
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parties that the provisions of this Agreement shall supersede any provisions to
the contrary in such plans, and such plans shall be deemed to have been amended
to correspond with this Agreement without further action by the Company or the
Board.
(b) Nothing in this Agreement shall be construed as giving the
Employee any right to be retained in the employ of the Company.
(c) All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, representatives, successors and assigns of the parties hereto, except
that the duties and responsibilities of the Employee and the Company hereunder
shall not be assignable in whole or in part by the Company.
20. Severability. If any provision of this Agreement or
application thereof to anyone or under any circumstances shall be determined to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application.
21. Remedies Cumulative; No Waiver. No right conferred upon
the Employee by this Agreement is intended to be exclusive of any other right or
remedy, and each and every such right or remedy shall be cumulative and shall be
in addition to any other right or remedy given hereunder or now or hereafter
existing at law or in equity. No delay or omission by the Employee in exercising
any right, remedy or power hereunder or existing at law or in equity shall be
construed as a waiver thereof, including, without limitation, any delay by the
Employee in delivering a Notice of Termination pursuant to Section 2 hereof
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after an event has occurred which would, if the Employee had resigned, have
constituted a Termination following a Change of Control pursuant to Section
1(l)(ii) of this Agreement.
22. Miscellaneous. All section headings are for convenience
only. This Agreement may be executed in several counterparts, each of which is
an original. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, have executed this Agreement as of the date first above written.
Attest: MARITRANS INC.
[Seal]
/s/ Xxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxx Xxxx
----------------------------- --------------------------------
Secretary Chairman
/s/ X.X. Xxxxxxxxxxx /s/ Xxxxxx X. Xxxx, Xx.
----------------------------- --------------------------------
Witness Xxxxxx X. Xxxx, Xx.
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