Exhibit 10.18
SEVERANCE AND NON-COMPETITION AGREEMENT
Agreement made as of the 12th day of July 2002, between Maritrans Inc.,
a Delaware Corporation (the "Company"), and Xxxxxx X. Xxxxxxxxx (the
"Employee").
WHEREAS, the Employee is employed by the Company as Vice President and
Chief Financial Officer of Maritrans Inc.;
WHEREAS, the Employee and Maritrans General Partner Inc. entered into
an Agreement last amended on January 7, 2000 to provide certain payments to the
Employee in exchange for agreeing not to compete with the Company in the event
the Employee's employment is terminated.
WHEREAS, the Employee and the Company now wish to revise the Agreement;
NOW, THEREFORE, in consideration of the foregoing and 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 "Associates" 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 sum of the Employee's
base salary, at the rate in effect on the Termination Date
or at the time of a Change of Control, if higher, the
Employee's annual bonus as paid for the year prior to the
Termination Date and, if applicable, any payment received
under the Company's Cash Long Term Incentive Plan in the
year prior to the year in which the Termination Date occurs,
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.
(c) "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, securities of the Company; 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
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 limitations 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 (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
participating in good faith in a firm commitment
underwriting until the expiration of forty days after
the date of such acquisition.
(d) "Board" shall mean the board of directors of the Company.
(e) "Cause" shall mean(3)) misappropriation of funds, ii)
habitual insobriety or substance abuse, iii) conviction of a
crime involving moral turpitude, iv) gross negligence in
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 or v) for purposes of Section
3(a), a judgment by the Board that the Employee is not
satisfactorily performing his duties after Employee has
received written notification of specific performance
deficiencies and has had a minimum of six months'
opportunity to correct such noted deficiencies. In such
case, employee shall receive regular updates regarding his
performance.
(f) "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 Maritrans 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 then outstanding or
to solicit proxies,
(ii) during any twenty-four month period, individuals who
at the beginning of such period constituted the board
of directors of Maritrans cease for any reason to
constitute a majority thereof, unless the election, or
the nomination for election by the Maritrans
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 directors in office at the
time of such election or nomination who were directors
at the beginning of such period,
(iii) consummation by Maritrans of a reorganization, merger
or consolidation (a Business Combination), in each
case, with respect to which all or substantially all
of the individuals and entities who were the
respective beneficial owners of the outstanding common
stock of Maritrans prior to such Business Combination
do not, following such Business Combination,
beneficially own, directly or indirectly, more than
50% of the then outstanding shares of common stock
entitled to vote generally in the election of
directors of the corporation, business trust or other
entity resulting from or being the surviving entity in
such Business Combination in substantially the same
proportion as their ownership immediately prior to
such Business Combination of the outstanding common
stock of Maritrans, or
(iv) consummation of a complete liquidation or dissolution
of Maritrans or sale or other disposition of all or
substantially all of the assets of Maritrans other
than to a corporation, business trust or other entity
with respect to which, following such sale or
disposition, more than 50% of the then outstanding
shares of common stock entitled to vote generally in
the election of the directors, is then owned
beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who
were the beneficial owners of the outstanding common
stock of Maritrans immediately prior to such sale or
disposition in substantially the same proportion as
their ownership of the outstanding common stock
immediately prior to such sale or disposition,
provided, however, that no "Change of Control" shall
be deemed to occur if a management buy-out occurs i.e.
the acquirement by then current officers and directors
of Maritrans of more than fifty percent of its
outstanding common stock. If the Employee is not a
member of the group of officers acquiring such stock,
then a Change of Control shall be deemed to have
occurred.
(g) "Normal Retirement Date" shall mean the first day of the
calendar month coincident with or next following the date
the Employee is first eligible for an unreduced Social
Security benefit.
(h) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(i) "Subsidiary" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the
Exchange Act.
(j) "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.
(k) "Termination of Employment" shall mean the termination of
Employee's actual employment with the Company.
(l) "Termination following a Change of Control" shall mean a
Termination of Employment within six months prior to or 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; provided, however in the case of a
"management buy-out" any alteration in the
Employee's position that results from the fact
that the Company is no longer a publicly traded
company shall not be ignored;
(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;
(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.
(E) a transfer of the Employee, without his express
written consent, to a location that is outside the
metropolitan Tampa area (fifty miles surrounding
the Company's principal location as of the date
hereof), or the general area in which his
principal place of business immediately preceding
the Change of Control may be located at such time
if other than the metropolitan Tampa.
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 17 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
continue to pay to the Employee, upon the execution of a
release substantially in the form being used by the Company,
prior to a Change of Control, for terminating executives, an
amount equal to his Base Compensation, subject to customary
employment taxes and deductions, for twelve months following
the Termination Date but all other benefit coverages (except
as specified by law or regulation), retirement benefits and
fringe benefit eligibility shall cease upon the Termination
Date.
(b) Subject to the provisions of Section 11 hereof, in the event
of the Employee's Termination following a Change of Control
or in the event that a Change of Control occurs within six
months after a Termination of Employment requiring a payment
under subsection (a), the Company shall pay to the Employee,
within 30 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 30
days or payments have already commenced under subsection (a)
above), a single sum in cash equal to 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.
(d) As additional consideration for the non-competition and
non-solicitation covenants contained in Sections 12 and 13,
(i) if payments are made under subsection (a) above an
amount equal to his Base Compensation, subject to customary
employment taxes and deductions, for 12 months following his
Termination Date, or (ii) if payments are made under
subsection (b) above, Employee will receive a single cash
payment, within 30 days after the effective date of the
Termination of Employment, equal to Employee's Base
Compensation. This payment will be made even if Employee is
terminated under the provision of Section 1(e)(v).
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.
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.
(c) The party or parties challenging the right of Employee to
the benefits of this Agreement shall in all circumstances
have the burden of proof.
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.
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
parachute payment" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), and
that it would be economically advantageous to the Employee
to reduce the Payment to avoid or reduce the taxation of
excess parachute payments under Section 4999 of the Code,
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. The Employee shall in his sole discretion
determine which and how much of the Agreement Payments shall
be eliminated or reduced consistent with the requirements of
this Section. Within five days after the Employee's
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 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 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 in
competition with the Company and engaged in a geographic
area in which the Company or any of its affiliates is
operating (i) on the date of reference, during his
employment by the Company or (ii) following his Termination
Date, on the Termination Date. The Employee recognizes that
the Company presently operates on the East Coast of the
United States and at all ports in the Gulf of Mexico
(whether or not such business is physically located within
those areas) (the "Geographic Area"). "Competition" includes
any business that is a customer of, competitive to, or in a
business segment 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, hire 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 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 or posting a bond, 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 in Florida,
or if such court does not have jurisdiction or will not
accept jurisdiction, in any court of general jurisdiction in
Tampa, Florida, (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. Except as
provided in Section 6(b), in the event of a lawsuit by
either party to enforce the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable
costs, expenses and attorney's fees from the other party.
(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 13 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; provided, however, that (i) a failure of
the Company to renew at a time when the Employee is employed by the
Company shall constitute an involuntary Termination of Employment
entitling the Employee to terminate employment from the Company and to
the payments provided by Secton 3(a) unless the Employee elects to
continue employment, within 30 days after a non-renewal, and, thereby,
waives such payments in connection with the failure to renew, (ii)
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 or have expired, and (iii) this
Agreement shall terminate if, prior to a Change of Control, the
employment of the Employee with the Company, Maritrans or any the
latter's Subsidiaries, as the case may be, shall terminate for any
reason, or the Employee shall cease to be an Employee, except as
provided in clause (i) or in Section 1(1).
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.
000 Xxxxxxx Xxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
If to the Employee, to:
Xxxxxx X. Xxxxxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 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 state of Florida 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
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 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.
23. Termination of Agreement. This Agreement shall supersede and replace
the Agreement which shall hereafter be null and void and of no further
force and effect.
IN WITNESS WHEREOF, the undersigned, intending to be
legally bound, have executed this Agreement as of the
date first above written.
Attest: Maritrans General Partner Inc.
[Seal]
/s/ Xxxxxx X. Xxxxxx /s/ XX Xxx Xxxx
----------------------- By_________________________
Asst. Secretary
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxxx
----------------------- --------------------------
Witness Xxxxxx X. Xxxxxxxxx
14
