EMPLOYMENT AGREEMENT
Agreement made as of this 29th day of January, 1997, by and
between American Business Financial Services, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxxxx, Xx., an individual (the "Executive").
BACKGROUND
The Executive is currently employed by the Company in the
position of President and Chief Executive Officer. The Company and the Executive
desire to provide for the future employment of the Executive as more fully set
forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, the parties agree as
follows:
1. Duties. During the Term (as hereinafter defined), the Executive
shall be the Chairman and Chief Executive Officer of the Company, shall have
such executive duties as are reasonably determined from time to time by the
Company's Board of Directors, and shall be entitled to the powers and authority
normally incident to the office of President and Chief Executive Officer. The
Executive shall devote his full time and attention to the business of the
Company and use his best efforts to promote the interests of the Company. The
principal place of business of the Executive shall be located within 30 miles of
City Hall in the City of Philadelphia.
2. Term.
(a) This Agreement shall continue for a period beginning on
the date hereof and ending on the earliest of the following dates (the "Term"):
(i) the date the Executive dies or becomes permanently disabled (as hereinafter
defined); (ii) the date of termination of the Executive's employment with the
Company for cause (as hereinafter defined); (iii) the date of the voluntary
termination by the Executive of the Executive's employment with the Company by
resignation as provided in Section 5 hereof; (iv) the date the Executive reaches
70 years of age; or (v) the later of (A) five years from the date hereof or (B)
five years from the latest anniversary of the date hereof, except that if the
Company gives written notice to the Executive of its intention to terminate this
Agreement without cause five years from the date of such notice, this Agreement
shall terminate five years from the date of such notice.
(b) For purposes of this Agreement the Executive shall be
deemed to be disabled upon his failure, even after reasonable accommodation, to
render services of the character which he had previously rendered to the Company
because of his physical or mental illness or other incapacity beyond his control
for a continuous period of twelve months or for shorter periods aggregating
twelve months in any two year period);
(c) For purposes of this Agreement, the term "cause" shall
mean (i) conviction of the Executive for any felony, fraud or embezzlement or
(ii) the Executive being guilty of willful
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or malicious misconduct in connection with the performance of his duties for the
Company and the Executive continues such misconduct beyond twenty days after
receiving written notice from the Company's Board of Directors specifying such
misconduct.
3. Compensation. During the Term, the Executive shall be entitled to a
minimum base annual salary of not less than $300,000. The foregoing figure shall
be adjusted in January of each calendar year during the Term for any increase in
the cost of living (based upon the Consumer Price Index, Philadelphia, PA - New
Jersey: all items, 1982-84=100, as published by the U.S. Department of Labor)
from May, 1996 to November of the immediately preceding calendar year. The
minimum base annual salary of the Executive, as adjusted for the cost of living,
shall be reviewed annually, and may be increased from time to time by the
Company's Board of Directors during the Term, and once increased may not
thereafter be decreased. The Board of Directors shall establish a cash bonus
plan which provides for the following bonuses to be paid for each fiscal year
during the Term: (a) if the Executive achieves 80% of the targets approved by
the Board of Directors for the fiscal year (the "Targets"), a cash bonus equal
to 50% of base annual salary; (b) if the Executive achieves 100% of the Targets,
a cash bonus equal to 100% of base annual salary, and if the Executive achieves
more than 80% and less than 100% of the Targets, the cash bonus will be
proportional to the achievement (e.g., if 90% of the Targets are achieved, the
cash bonus would equal 75% of base annual salary); (c) if the Executive achieves
more than 100% of the Targets, the cash bonus will be 100% of the base annual
salary plus an additional 2.5% for each 1% over 100% of the Targets actually
achieved (for example, if the Executive achieves 120% of the Targets, the cash
bonus would equal 150% of the base annual salary), provided that in no event can
the cash bonus exceed 225% of base annual salary. The Targets established by the
Board of Directors may not be increased by more than twenty-five percent (25%)
from one fiscal year to the next subsequent fiscal year and may not be increased
after a Change of Control (as defined in Section 6 hereof) to which the
Executive does not give his written consent as provided in Section 6. The
Executive shall also be entitled to such stock options and other incentive
payments as are determined from time to time by the Company's Board of
Directors.
4. Other Benefits. During the Term, in addition to the compensation set
forth in Section 3 hereof, the Executive shall be entitled, at a minimum, to the
following benefits from the Company:
(i) a leased car at a rental cost to the Company not
exceeding $600 per month (as adjusted for changes in the cost of living
as provided in Section 3 hereof) plus insurance, gasoline and
maintenance costs (it being understood that the Executive may choose to
contribute to any cost exceeding such figure);
(ii) family medical, hospital, life and disability
insurance which are no less than the amount of these benefits received
by the Executive immediately prior to the date hereof; and
(iii) reimbursement for all reasonable expenses
incurred by the Executive in the performance of his duties under this
Agreement.
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If the Executive becomes permanently disabled (as defined in Section
2(b) hereof) during the Term, the Company shall pay to the Executive (even
though the Term of this Agreement has otherwise expired) during the period of
such disability but not beyond the date the Executive reaches age 65, monthly
disability benefits in an amount computed as follows: (i) compute the
Executive's base annual salary immediately prior to such disability; (ii) divide
the figure set forth in clause (i) by 12; (iii) reduce the result of clause (ii)
by the amount of the monthly disability benefits received by the Executive under
any disability insurance paid for in whole or in part by the Company.
5. Voluntary Resignation. The Executive may voluntarily resign at any
time during the Term, provided that the Executive may not terminate his
employment for three years after the first closing date of an initial public
offering of the Company's common stock unless there is a Change of Control (as
defined in Section 6 hereof) during such three year period to which the
Executive does not give his written consent as provided in Section 6 hereof.
6. Change of Control.
(a) In the event of a Change of Control (as hereafter defined)
of the Company during the Term to which the Executive does not give his written
consent in his capacity as a director or shareholder of the Company, the
Executive shall receive (in addition to the payments and benefits due pursuant
to Sections 3 and 4 hereof, respectively), within thirty (30) days after the
date of such Change of Control, a cash payment equal 2.99 times the "base
amount," as said term is defined in Section 280G(b)(3) of the Internal Revenue
Code of 1986, as amended (the "Code"), less the aggregate present value of other
payments required to be taken into account under Section 280G(b)(2)(ii) of the
Code. The outside auditor for the Company shall determine the amount due
hereunder and such determination shall be final and conclusive upon all parties.
The payment due under this Section 6(a) shall be in addition to any other
payment which may otherwise become due pursuant to this Agreement.
(b) A "Change of Control" shall be deemed to have occurred
upon the happening of any of the following events: (i) a change within a two
year period in a majority of the members of the Board of Directors of the
Company (other than as a result of voluntary retirement or death); or (ii) a
person or group acting in concert as described in Section 13(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") acquires
beneficial ownership within the meaning of Rule 13(d)(3) promulgated under the
Exchange Act of a number of voting shares of the Company which constitute either
(i) more than fifty percent (50%) of the total votes which were voted in the
election of directors of the Company at the shareholders' meeting immediately
preceding such determination or (ii) more than twenty-five percent (25%) of the
total votes which may be cast by all of the Company's outstanding voting shares.
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7. Confidentiality and Non-Competition.
(a) The Executive covenants and agrees that, so long as the
Company complies with its obligations hereunder, he will not, during the Term or
at any time thereafter, except with the express prior written consent of the
Company or pursuant to the lawful order of any judicial or administrative agency
of government, directly or indirectly, disclose, communicate or divulge to any
person, or use for the benefit of any person, any knowledge or information with
respect to the conduct or details of the Company's business which he, acting
reasonably, believes or should believe to be of a confidential nature and the
disclosure of which not to be in the Company's interest.
(b) The Executive covenants and agrees that, so long as the
Company complies with its obligations hereunder, he will not, during the Term
except with the express prior written consent of the Company, directly or
indirectly, whether as employee, owner, partner, consultant, agent, director,
officer, shareholder or in any other capacity, engage in or assist any person to
engage in any act or action which he, acting reasonably, believes or should
believe would be harmful or inimical to the interests of the Company.
(c) The Executive covenants and agrees that, so long as the
Company complies with its obligations hereunder, he will not, during the Term
except with the express prior written consent of the Company, in any capacity
(including, but not limited to, owner, partner, shareholder, consultant, agent,
employee, officer, director or otherwise), directly or indirectly, for his own
account or for the benefit of any person, engage or participate in or otherwise
be connected with any competitor, except that the foregoing shall not prohibit
the Executive from owning as a shareholder less than 1% of the outstanding stock
of an issuer whose stock is publicly traded.
(d) The Company may elect to extend the period of the
covenants set forth in Section 7(b) and Section 7(c) for a period ending one
year after the last day of the Term, provided the Company has previously
complied with the provisions of this Agreement and provided the Company during
such one year period continues to pay to the Executive the highest annual
compensation (consisting of annual base salary and cash bonus) the Executive
previously received for any fiscal year during the Term.
(e) The parties agree that any breach by the Executive of any
of the covenants or agreements contained in this Section 7 will result in
irreparable injury to the Company for which money damages could not adequately
compensate the Company and therefore, in the event of any such breach, the
Company shall be entitled (in addition to any other rights and remedies which it
may have at law or in equity) to have an injunction issued by any competent
court enjoining and restraining the Executive and/or any other person involved
therein from continuing such breach. The existence of any claim or cause of
action which the Executive may have against the Company or any other person
(other than a claim for the Company's breach of this Agreement for failure to
make payments hereunder) shall not constitute a defense or bar to the
enforcement of such covenants. In the event of an alleged breach by the
Executive of any of the covenants or agreements contained in this Section 7, the
Company shall continue any and all of the payments due the Executive under this
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Agreement until such time as a Court shall enter a final and unappealable order
finding such a breach; provided, that the foregoing shall not preclude a Court
from ordering the Executive to repay such payments made to him for the period
after the breach is determined to have occurred or from ordering that payments
hereunder be permanently terminated in the event of a material and willful
breach.
(f) If any portion of the covenants or agreements contained in
this Section 7, or the application hereof, is construed to be invalid or
unenforceable, the other portions of such covenant(s) or agreement(s) or the
application thereof shall not be affected and shall be given full force and
effect without regard to the invalid or enforceable portions to the fullest
extent possible. If any covenant or agreement in this Section 7 is held
unenforceable because of the area covered, the duration thereof, or the scope
thereof, then the court making such determination shall have the power to reduce
the area and/or duration and/or limit the scope thereof, and the covenant or
agreement shall then be enforceable in its reduced form.
(g) For purposes of this Section 7, the term "the Company"
shall include the Company, any successor to the Company under Section 8 hereof,
and all present and future direct and indirect subsidiaries and affiliates of
the Company.
8. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of the Company which will
acquire, directly or indirectly, by merger, consolidation, purchase, or
otherwise, all or substantially all of the assets of the Company, and shall
otherwise inure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors and assigns.
Nothing in the Agreement shall preclude the Company from consolidating or merger
into or with or transferring all or substantially all of its assets to another
person. In that event, such other person shall assume this Agreement and all
obligations of the Company hereunder. Upon such a consolidation, merger, or
transfer of assets and assumption, the term "the Company" as used herein, shall
mean such other person and this Agreement shall continue in full force and
effect.
9. Withholding. The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
10. Gross-Up for Excise Tax. If any payments or benefits to be received
by the Executive hereunder (such payments or benefits, excluding the Gross-Up
Payment described herein, being hereinafter referred to as the "Total
Payments"), will be subject to any excise tax imposed under Section 4999 of the
Code (the "Excise Tax"), the Company shall pay to the Executive an additional
amount (the "Gross-Up Payment"), such that the net amount retained by the
Executive after deduction of any Excise Tax on the Total Payments and any
Federal, state and local income and employment taxes and Excise Tax upon the
Gross-Up Payment, shall be equal to the Total Payments. For purposes of
determining the amount of the Gross-Up Payment, the Executive shall be deemed to
pay Federal income tax at the highest marginal rate of Federal income taxation
in the
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calendar year in which the Gross-Up Payment is to be made, and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of the Executive's residence on the date on which the Gross-Up Payment is
calculated for purposes of this Section 10, net of the maximum reduction in
Federal income taxes which could be obtained from the deduction of such state
and local taxes. The Executive and the Company shall each reasonably cooperate
with the other in connection with any administrative or judicial proceedings
concerning the existence or amount of liability for Excise Tax with respect to
the Total Payments.
11. (a) Nonassignability. Neither this Agreement or any right or
interest hereunder shall be assignable by the Executive or his legal
representatives without the Company's prior written consent.
(b) Attachment. Except as required by law, the right to receive
payments under this Agreement shall not be subject to anticipation, sale,
encumbrance, charge, levy, or similar process or assignment by operation of law.
12. Waivers Not to be Continued. Any waiver by a party of any breach of
this Agreement by another party shall not be construed as a continuing waiver or
as a consent to any subsequent breach by the other party.
13. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice:
A. If to the Executive, to:
Xxxxxxx X. Xxxxxxxx, Xx.
c/o American Business Financial Services, Inc.
BalaPointe Office Centre
000 Xxxxxxxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxxx, XX 00000
B. If to the Company, to:
American Business Financial Services, Inc.
BalaPointe Office Centre
000 Xxxxxxxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Board of Directors
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With a copy to: Xxxxxxxxx X. Xxxxxx, Esquire
Blank Rome Xxxxxxx & XxXxxxxx
Four Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
14. Jurisdiction. Company and the Executive consent to the exclusive
jurisdiction of the courts of the Commonwealth of Pennsylvania and the United
States District Court for the Eastern District of Pennsylvania in any and all
actions arising hereunder and irrevocably consent to service of process as set
forth in Section 13 hereof.
15. Acceleration. If the Company fails to pay the Executive any of the
amounts due to him under Sections 3, 4 or 6 hereof, thirty (30) days after
having received written notice from the Executive of such failure to pay, the
Executive shall have the right to accelerate future payments of all sums due the
Executive under Sections 3, 4 and 6 hereof, without discount.
16. Indemnity; No Mitigation. If the Company fails to pay the Executive
any of the amounts due to him under Sections 3 or 6 hereof or fails to provide
the Executive with any of the benefits due to him under Section 4 hereof, thirty
(30) days after having received written notice from the Executive of such
failure, the Executive shall be entitled to full reimbursement from the Company
for all costs and expenses (including reasonable attorneys fees) incurred by the
Executive in enforcing his rights under this Agreement, plus interest at the
rate of 9% per annum on the improperly withheld amounts or improperly withheld
benefits due to the Executive under Sections 3, 4 or 6 hereof. In the event of a
material breach of this Agreement by the Company, the Executive shall have no
duty to mitigate damages and any income earned by the Executive from other
employment after such breach shall not reduce the damages otherwise due to the
Executive by reason of such breach.
17. General Provisions.
(a) This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof, and supersedes and
replaces all prior agreements between the parties. No amendment, supplement,
waiver or termination of any of the provisions hereof shall be effective unless
in writing and signed by the party against whom it is sought to be enforced. Any
written amendment, supplement, waiver or termination hereof executed by the
Company and the Executive shall be binding upon them and upon all other persons,
without the necessity of securing the consent of any other person and no person
shall be deemed to be a third party beneficiary under this Agreement.
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(b) The term "person" as used in this Agreement means a
natural person, joint venture, corporation, sole proprietorship, trust, estate,
partnership, cooperative, association, non-profit organization or any other
legally cognizable entity.
(c) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
(d) No failure on the part of any party hereto to exercise and
no delay in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other rights, power or remedy.
(e) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
(f) This Agreement shall be governed and construed and the
legal relationships of the parties determined in accordance with the laws of the
Commonwealth of Pennsylvania applicable to contracts executed and to be
performed solely in the Commonwealth of Pennsylvania.
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
(Corporate Seal) By: /s/ Xxxxx X. Xxxxx
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Attest: /s/ Xxxxxxx X. Xxxxx, SVP
---------------------------------
Witness: /s/ Xxxxxxx X. Xxxxx
--------------------
/s/ Xxxxxxx X. Xxxxxxxx, Xx. (SEAL)
----------------------------------
XXXXXXX X. XXXXXXXX, XX.
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EMPLOYMENT AGREEMENT
Agreement made as of this 29th day of January, 1997, by and
between American Business Financial Services, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx Xxxxxxxx, an individual (the "Executive").
BACKGROUND
The Executive is currently employed by the Company in the
position of Executive Vice President and Secretary. The Company and the
Executive desire to provide for the future employment of the Executive as more
fully set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, the parties agree as
follows:
1. Duties. During the Term (as hereinafter defined), the Executive
shall be the Executive Vice President and Secretary of the Company, shall have
such executive duties as are reasonably determined from time to time by the
Company's Board of Directors, and shall be entitled to the powers and authority
normally incident to the office of Executive Vice President and Secretary. The
Executive shall devote her full time and attention to the business of the
Company and use her best efforts to promote the interests of the Company. The
principal place of business of the Executive shall be located within 30 miles of
City Hall in the City of Philadelphia.
2. Term.
(a) This Agreement shall continue for a period beginning on
the date hereof and ending on the earliest of the following dates (the "Term"):
(i) the date the Executive dies or becomes permanently disabled (as hereinafter
defined); (ii) the date of termination of the Executive's employment with the
Company for cause (as hereinafter defined); (iii) the date of the voluntary
termination by the Executive of the Executive's employment with the Company by
resignation as provided in Section 5 hereof; (iv) the date the Executive reaches
70 years of age; or (v) the later of (A) five years from the date hereof or (B)
five years from the latest anniversary of the date hereof, except that if the
Company gives written notice to the Executive of its intention to terminate this
Agreement without cause five years from the date of such notice, this Agreement
shall terminate five years from the date of such notice.
(b) For purposes of this Agreement the Executive shall be
deemed to be disabled upon her failure, even after reasonable accommodation, to
render services of the character which she had previously rendered to the
Company because of her physical or mental illness or other incapacity beyond her
control for a continuous period of twelve months or for shorter periods
aggregating twelve months in any two year period);
(c) For purposes of this Agreement, the term "cause" shall
mean (i) conviction of the Executive for any felony, fraud or embezzlement or
(ii) the Executive being guilty of willful
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or malicious misconduct in connection with the performance of her duties for the
Company and the Executive continues such misconduct beyond twenty days after
receiving written notice from the Company's Board of Directors specifying such
misconduct.
3. Compensation. During the Term, the Executive shall be entitled to a
minimum base annual salary of not less than $200,000. The foregoing figure shall
be adjusted in January of each calendar year during the Term for any increase in
the cost of living (based upon the Consumer Price Index, Philadelphia, PA - New
Jersey: all items, 1982-84=100, as published by the U.S. Department of Labor)
from May, 1996 to November of the immediately preceding calendar year. The
minimum base annual salary of the Executive, as adjusted for the cost of living,
shall be reviewed annually, and may be increased from time to time by the
Company's Board of Directors during the Term, and once increased may not
thereafter be decreased. The Board of Directors shall establish a cash bonus
plan which provides for the following bonuses to be paid for each fiscal year
during the Term: (a) if the Executive achieves 80% of the targets approved by
the Board of Directors for the fiscal year (the "Targets"), a cash bonus equal
to 50% of base annual salary; (b) if the Executive achieves 100% of the Targets,
a cash bonus equal to 100% of base annual salary, and if the Executive achieves
more than 80% and less than 100% of the Targets, the cash bonus will be
proportional to the achievement (e.g., if 90% of the Targets are achieved, the
cash bonus would equal 75% of base annual salary); (c) if the Executive achieves
more than 100% of the Targets, the cash bonus will be 100% of the base annual
salary plus an additional 2.5% for each 1% over 100% of the Targets actually
achieved (for example, if the Executive achieves 120% of the Targets, the cash
bonus would equal 150% of the base annual salary), provided that in no event can
the cash bonus exceed 225% of base annual salary. The Targets established by the
Board of Directors may not be increased by more than twenty-five percent (25%)
from one fiscal year to the next subsequent fiscal year and may not be increased
after a Change of Control (as defined in Section 6 hereof) to which the
Executive does not give her written consent as provided in Setion 6. The
Executive shall also be entitled to such stock options and other incentive
payments as are determined from time to time by the Company's Board of
Directors.
4. Other Benefits. During the Term, in addition to the compensation set
forth in Section 3 hereof, the Executive shall be entitled, at a minimum, to the
following benefits from the Company:
(i) a leased car at a rental cost to the Company not
exceeding $600 per month (as adjusted for changes in the cost of living
as provided in Section 3 hereof) plus insurance, gasoline and
maintenance costs (it being understood that the Executive may choose to
contribute to any cost exceeding such figure);
(ii) family medical, hospital, life and disability
insurance which are no less than the amount of these benefits received
by the Executive immediately prior to the date hereof; and
(iii) reimbursement for all reasonable expenses
incurred by the Executive in the performance of her duties under this
Agreement.
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5. Voluntary Resignation. The Executive may voluntarily resign at any
time during the Term, provided that the Executive may not terminate her
employment for three years after the first closing date of an initial public
offering of the Company's common stock unless there is a Change of Control (as
defined in Section 6 hereof) during such three year period to which the
Executive does not give her written consent as provided in Section 6 hereof.
6. Change of Control.
(a) In the event of a Change of Control (as hereafter defined)
of the Company during the Term to which the Executive does not give her written
consent in her capacity as a director or shareholder of the Company, the
Executive's stock options shall vest in full and the Executive shall receive (in
addition to the payments and benefits due pursuant to Sections 3 and 4 hereof,
respectively), within thirty (30) days after the date of such Change of Control,
a cash payment equal 2.99 times the "base amount," as said term is defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the
"Code"), less the aggregate present value of other payments required to be taken
into account under Section 280G(b)(2)(ii) of the Code. The outside auditor for
the Company shall determine the amount due hereunder and such determination
shall be final and conclusive upon all parties. The payment due under this
Section 6(a) shall be in addition to any other payment which may otherwise
become due pursuant to this Agreement.
(b) A "Change of Control" shall be deemed to have occurred
upon the happening of any of the following events: (i) a change within a two
year period in a majority of the members of the Board of Directors of the
Company (other than as a result of voluntary retirement or death); or (ii) a
person or group acting in concert as described in Section 13(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") acquires
beneficial ownership within the meaning of Rule 13(d)(3) promulgated under the
Exchange Act of a number of voting shares of the Company which constitute either
(i) more than fifty percent (50%) of the total votes which were voted in the
election of directors of the Company at the shareholders' meeting immediately
preceding such determination or (ii) more than twenty-five percent (25%) of the
total votes which may be cast by all of the Company's outstanding voting shares.
7. Confidentiality and Non-Competition.
(a) The Executive covenants and agrees that, so long as the
Company complies with its obligations hereunder, she will not, during the Term
or at any time thereafter, except with the express prior written consent of the
Company or pursuant to the lawful order of any judicial or administrative agency
of government, directly or indirectly, disclose, communicate or divulge to any
person, or use for the benefit of any person, any knowledge or information with
respect to the conduct or details of the Company's business which she, acting
reasonably, believes or should believe to be of a confidential nature and the
disclosure of which not to be in the Company's interest.
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(b) The Executive covenants and agrees that, so long as the
Company complies with its obligations hereunder, she will not, during the Term
except with the express prior written consent of the Company, directly or
indirectly, whether as employee, owner, partner, consultant, agent, director,
officer, shareholder or in any other capacity, engage in or assist any person to
engage in any act or action which she, acting reasonably, believes or should
believe would be harmful or inimical to the interests of the Company.
(c) The Executive covenants and agrees that, so long as the
Company complies with its obligations hereunder, she will not, during the Term
except with the express prior written consent of the Company, in any capacity
(including, but not limited to, owner, partner, shareholder, consultant, agent,
employee, officer, director or otherwise), directly or indirectly, for her own
account or for the benefit of any person, engage or participate in or otherwise
be connected with any competitor, except that the foregoing shall not prohibit
the Executive from owning as a shareholder less than 1% of the outstanding stock
of an issuer whose stock is publicly traded.
(d) The Company may elect to extend the period of the
covenants set forth in Section 7(b) and Section 7(c) for a period ending one
year after the last day of the Term, provided the Company has previously
complied with the provisions of this Agreement and provided the Company during
such one year period continues to pay to the Executive the highest annual
compensation (consisting of annual base salary and cash bonus) the Executive
previously received for any fiscal year during the Term.
(e) The parties agree that any breach by the Executive of any
of the covenants or agreements contained in this Section 7 will result in
irreparable injury to the Company for which money damages could not adequately
compensate the Company and therefore, in the event of any such breach, the
Company shall be entitled (in addition to any other rights and remedies which it
may have at law or in equity) to have an injunction issued by any competent
court enjoining and restraining the Executive and/or any other person involved
therein from continuing such breach. The existence of any claim or cause of
action which the Executive may have against the Company or any other person
(other than a claim for the Company's breach of this Agreement for failure to
make payments hereunder) shall not constitute a defense or bar to the
enforcement of such covenants. In the event of an alleged breach by the
Executive of any of the covenants or agreements contained in this Section 7, the
Company shall continue any and all of the payments due the Executive under this
Agreement until such time as a Court shall enter a final and unappealable order
finding such a breach; provided, that the foregoing shall not preclude a Court
from ordering the Executive to repay such payments made to her for the period
after the breach is determined to have occurred or from ordering that payments
hereunder be permanently terminated in the event of a material and willful
breach.
(f) If any portion of the covenants or agreements contained in
this Section 7, or the application hereof, is construed to be invalid or
unenforceable, the other portions of such covenant(s) or agreement(s) or the
application thereof shall not be affected and shall be given full force and
effect without regard to the invalid or enforceable portions to the fullest
extent possible.
-4-
If any covenant or agreement in this Section 7 is held unenforceable because of
the area covered, the duration thereof, or the scope thereof, then the court
making such determination shall have the power to reduce the area and/or
duration and/or limit the scope thereof, and the covenant or agreement shall
then be enforceable in its reduced form.
(g) For purposes of this Section 7, the term "the Company"
shall include the Company, any successor to the Company under Section 8 hereof,
and all present and future direct and indirect subsidiaries and affiliates of
the Company.
8. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of the Company which will
acquire, directly or indirectly, by merger, consolidation, purchase, or
otherwise, all or substantially all of the assets of the Company, and shall
otherwise inure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors and assigns.
Nothing in the Agreement shall preclude the Company from consolidating or merger
into or with or transferring all or substantially all of its assets to another
person. In that event, such other person shall assume this Agreement and all
obligations of the Company hereunder. Upon such a consolidation, merger, or
transfer of assets and assumption, the term "the Company" as used herein, shall
mean such other person and this Agreement shall continue in full force and
effect.
9. Withholding. The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
10. Gross-Up for Excise Tax. If any payments or benefits to be received
by the Executive hereunder (such payments or benefits, excluding the Gross-Up
Payment described herein, being hereinafter referred to as the "Total
Payments"), will be subject to any excise tax imposed under Section 4999 of the
Code (the "Excise Tax"), the Company shall pay to the Executive an additional
amount (the "Gross-Up Payment"), such that the net amount retained by the
Executive after deduction of any Excise Tax on the Total Payments and any
Federal, state and local income and employment taxes and Excise Tax upon the
Gross-Up Payment, shall be equal to the Total Payments. For purposes of
determining the amount of the Gross-Up Payment, the Executive shall be deemed to
pay Federal income tax at the highest marginal rate of Federal income taxation
in the calendar year in which the Gross-Up Payment is to be made, and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of the Executive's residence on the date on which the Gross-Up Payment
is calculated for purposes of this Section 10, net of the maximum reduction in
Federal income taxes which could be obtained from the deduction of such state
and local taxes. The Executive and the Company shall each reasonably cooperate
with the other in connection with any administrative or judicial proceedings
concerning the existence or amount of liability for Excise Tax with respect to
the Total Payments.
-5-
11. (a) Nonassignability. Neither this Agreement or any right or
interest hereunder shall be assignable by the Executive or her legal
representatives without the Company's prior written consent.
(b) Attachment. Except as required by law, the right to receive
payments under this Agreement shall not be subject to anticipation, sale,
encumbrance, charge, levy, or similar process or assignment by operation of law.
12. Waivers Not to be Continued. Any waiver by a party of any breach of
this Agreement by another party shall not be construed as a continuing waiver or
as a consent to any subsequent breach by the other party.
13. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice:
A. If to the Executive, to:
Xxxxxxx Xxxxxxxx
c/o American Business Financial Services, Inc.
BalaPointe Office Centre
000 Xxxxxxxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxxx, XX 00000
B. If to the Company, to:
American Business Financial Services, Inc.
BalaPointe Office Centre
000 Xxxxxxxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Board of Directors
With a copy to: Xxxxxxxxx X. Xxxxxx, Esquire
Blank Rome Xxxxxxx & XxXxxxxx
Four Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
-6-
14. Jurisdiction. Company and the Executive consent to the exclusive
jurisdiction of the courts of the Commonwealth of Pennsylvania and the United
States District Court for the Eastern District of Pennsylvania in any and all
actions arising hereunder and irrevocably consent to service of process as set
forth in Section 13 hereof.
15. Acceleration. If the Company fails to pay the Executive any of the
amounts due to her under Sections 3, 4 or 5 hereof, thirty (30) days after
having received written notice from the Executive of such failure to pay, the
Executive shall have the right to accelerate future payments of all sums due the
Executive under Sections 3, 4 and 6 hereof, without discount.
16. Indemnity; No Mitigation. If the Company fails to pay the Executive
any of the amounts due to her under Sections 3 or 6 hereof or fails to provide
the Executive with any of the benefits due to her under Section 4 hereof, thirty
(30) days after having received written notice from the Executive of such
failure, the Executive shall be entitled to full reimbursement from the Company
for all costs and expenses (including reasonable attorneys fees) incurred by the
Executive in enforcing her rights under this Agreement, plus interest at the
rate of 9% per annum on the improperly withheld amounts or improperly withheld
benefits due to the Executive under Sections 3, 4 or 5 hereof. In the event of a
material breach of this Agreement by the Company, the Executive shall have no
duty to mitigate damages and any income earned by the Executive from other
employment after such breach shall not reduce the damages otherwise due to the
Executive by reason of such breach.
17. General Provisions.
(a) This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof, and supersedes and
replaces all prior agreements between the parties. No amendment, supplement,
waiver or termination of any of the provisions hereof shall be effective unless
in writing and signed by the party against whom it is sought to be enforced. Any
written amendment, supplement, waiver or termination hereof executed by the
Company and the Executive shall be binding upon them and upon all other persons,
without the necessity of securing the consent of any other person and no person
shall be deemed to be a third party beneficiary under this Agreement.
(b) The term "person" as used in this Agreement means a
natural person, joint venture, corporation, sole proprietorship, trust, estate,
partnership, cooperative, association, non-profit organization or any other
legally cognizable entity.
(c) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
(d) No failure on the part of any party hereto to exercise and
no delay in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any
-7-
single or partial exercise of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other rights, power or
remedy.
(e) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
(f) This Agreement shall be governed and construed and the
legal relationships of the parties determined in accordance with the laws of the
Commonwealth of Pennsylvania applicable to contracts executed and to be
performed solely in the Commonwealth of Pennsylvania.
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
(Corporate Seal) By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Attest: /s/ Xxxxxxx X. Xxxxx SVP
---------------------------------
Witness: /s/ Xxxxxxx X. Xxxxx
--------------------
/s/ Xxxxxxx Xxxxxxxx (SEAL)
----------------------------------
XXXXXXX X. XXXXXXXX
-8-
EMPLOYMENT AGREEMENT
Agreement made as of this 29th day of January, 1997, by and
between American Business Financial Services, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxx, an individual (the "Executive").
BACKGROUND
The Executive is currently employed by the Company in the
position of Senior Vice President and General Counsel. The Company and the
Executive desire to provide for the future employment of the Executive as more
fully set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, the parties agree as
follows:
1. Duties. During the Term (as hereinafter defined), the Executive
shall be the Senior Vice President and General Counsel of the Company, shall
have such executive duties as are reasonably determined from time to time by the
Company's Chief Executive Officer and shall be entitled to the powers and
authority normally incident to the office of Senior Vice President and General
Counsel. The Executive shall devote his full time and attention to the business
of the Company and use his best efforts to promote the interests of the Company.
2. Term.
(a) This Agreement shall continue for a period beginning on
the date hereof and ending on the earliest of the following dates (the "Term"):
(i) the date the Executive dies or becomes permanently disabled (as hereinafter
defined); (ii) the date of termination of the Executive's employment with the
Company for cause (as hereinafter defined); (iii) the date of the voluntary
termination by the Executive of the Executive's employment with the Company by
resignation as provided in Section 5 hereof; (iv) the date the Executive reaches
70 years of age; or (v) the later of (A) three years from the date hereof or (B)
three years from the latest anniversary of the date hereof, except that if the
Company gives written notice to the Executive of its intention to terminate this
Agreement without cause three years from the date of such notice, this Agreement
shall terminate three years from the date of such notice; provided, however,
during the period when Xxxxxxx X. Xxxxxxxx, Xx. is serving as Chief Executive of
the Company this Agreement may be terminated without cause upon the payment by
the Company to Executive of an amount equal to the Executive's base salary for
the year in which such termination occurs.
(b) For purposes of this Agreement the Executive shall be
deemed to be disabled upon his failure, even after reasonable accommodation, to
render services of the character which he had previously rendered to the Company
because of his physical or mental illness or other incapacity beyond his control
for a continuous period of twelve months or for shorter periods aggregating
-1-
twelve months in any two year period);
(c) For purposes of this Agreement, the term "cause" shall
mean (i) conviction of the Executive for any felony, fraud or embezzlement or
(ii) the Executive being guilty of willful or malicious misconduct in connection
with the performance of his duties for the Company and the Executive continues
such misconduct beyond twenty days after receiving written notice from the
Company's Board of Directors specifying such misconduct.
3. Compensation. During the Term, the Executive shall be entitled to a
minimum base annual salary of not less than $125,000. The foregoing figure shall
be adjusted in January of each calendar year during the Term for any increase in
the cost of living (based upon the Consumer Price Index, Philadelphia, PA - New
Jersey: all items, 1982-84=100, as published by the U.S. Department of Labor)
from May, 1996 to November of the immediately preceding calendar year. The
minimum base annual salary of the Executive, as adjusted for the cost of living,
shall be reviewed annually, and may be increased from time to time by Xxxxxxx X.
Xxxxxxxx, Xx. during the Term, and once increased may not after a Change in
Control thereafter be decreased. The Board of Directors shall establish a cash
bonus plan in which Executive shall participate. The Executive shall also be
entitled to such stock options and other incentive payments as are determined
from time to time by the Company's Board of Directors.
4. Other Benefits. During the Term, in addition to the compensation set
forth in Section 3 hereof, the Executive shall be entitled, at a minimum, to the
following benefits from the Company:
(i) medical, hospital, life and disability insurance
for Executive which are no less than the amount of these benefits
received by the Executive immediately prior to the date hereof; and
(ii) reimbursement for all reasonable expenses
incurred by the Executive in the performance of his duties under this
Agreement.
5. Voluntary Resignation. The Executive may voluntarily resign at any
time during the Term, provided that the Executive may not terminate his
employment for three years after the first closing date of an initial public
offering of the Company's common stock unless there is a Change of Control (as
defined in Section 6 hereof) during such three year period.
-2-
6. Change of Control.
(a) In the event of a Change of Control (as hereafter defined)
of the Company during the Term, Executive's stock options shall vest in full. In
addition, if Executive's employment is terminated in connection with such Change
in Control, the Executive shall receive, within thirty (30) days after the date
of such termination, a cash payment equal 2.99 times the "base amount," as said
term is defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"), less the aggregate present value of other payments
required to be taken into account under Section 280G(b)(2)(A)(ii) of the Code.
The outside auditor for the Company shall determine the amount due hereunder and
such determination shall be final and conclusive upon all parties. The payment
due under this Section 6(a) shall be in lieu of any other payment which may
otherwise become due pursuant to this Agreement.
(b) A "Change of Control" shall be deemed to have occurred
upon the happening of any of the following events: (i) a change within a two
year period in a majority of the members of the Board of Directors of the
Company (other than as a result of voluntary retirement or death) unless
Xxxxxxx X. Xxxxxxxx, Xx. remains Chairman of the Board; or (ii) a person or
group acting in concert as described in Section 13(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") acquires beneficial
ownership within the meaning of Rule 13(d)(3) promulgated under the Exchange Act
of a number of voting shares of the Company which constitute either (i) more
than fifty percent (50%) of the total votes which were voted in the election of
directors of the Company at the shareholders' meeting immediately preceding such
determination or (ii) more than twenty-five percent (25%) of the total votes
which may be cast by all of the Company's outstanding voting shares.
7. Confidentiality and Non-Competition.
(a) The Executive covenants and agrees that, so long as the
Company complies with its obligations hereunder, he will not, during the Term or
at any time thereafter, except with the express prior written consent of the
Company or pursuant to the lawful order of any judicial or administrative agency
of government, directly or indirectly, disclose, communicate or divulge to any
person, or use for the benefit of any person, any knowledge or information with
respect to the conduct or details of the Company's business which he, acting
reasonably, believes or should believe to be of a confidential nature and the
disclosure of which not to be in the Company's interest.
(b) The Executive covenants and agrees that, so long as the
Company complies with its obligations hereunder, he will not, during the Term
except with the express prior written consent of the Company, directly or
indirectly, whether as employee, owner, partner, consultant, agent, director,
officer, shareholder or in any other capacity, engage in or assist any person to
engage in any act or action which he, acting reasonably, believes or should
believe would be harmful or inimical to the interests of the Company.
(c) The Executive covenants and agrees that, so long as the
Company complies with its obligations hereunder, he will not, during the Term
except with the express prior written
-3-
consent of the Company, in any capacity (including, but not limited to, owner,
partner, shareholder, consultant, agent, employee, officer, director or
otherwise), directly or indirectly, for his own account or for the benefit of
any person, engage or participate in or otherwise be connected with any
competitor, except that the foregoing shall not prohibit the Executive from
owning as a shareholder less than 1% of the outstanding stock of an issuer whose
stock is publicly traded.
(d) In the event Executive's employment is terminated without
cause and he receives a cash payment as herein provided, the period of the
covenants set forth in Section 7(b) and 7(c) shall be extended for one year
unless the Executive returns a pro rata portion of the termination payment to
the Company. With Executive's consent, which Executive may withhold, in the
event of any other termination, the Company may elect to extend the period of
the covenants set forth in Section 7(b) and Section 7(c) for a period ending one
year after the last day of the Term, provided the Company has previously
complied with the provisions of this Agreement and provided the Company during
such one year period continues to pay to the Executive the highest annual
compensation (consisting of annual base salary and cash bonus) the Executive
previously received for any fiscal year during the Term.
(e) The parties agree that any breach by the Executive of any
of the covenants or agreements contained in this Section 7 will result in
irreparable injury to the Company for which money damages could not adequately
compensate the Company and therefore, in the event of any such breach, the
Company shall be entitled (in addition to any other rights and remedies which it
may have at law or in equity) to have an injunction issued by any competent
court enjoining and restraining the Executive and/or any other person involved
therein from continuing such breach. The existence of any claim or cause of
action which the Executive may have against the Company or any other person
(other than a claim for the Company's breach of this Agreement for failure to
make payments hereunder) shall not constitute a defense or bar to the
enforcement of such covenants. In the event of an alleged breach by the
Executive of any of the covenants or agreements contained in this Section 7, the
Company shall continue any and all of the payments due the Executive under this
Agreement until such time as a Court shall enter a final and unappealable order
finding such a breach; provided, that the foregoing shall not preclude a Court
from ordering the Executive to repay such payments made to him for the period
after the breach is determined to have occurred or from ordering that payments
hereunder be permanently terminated in the event of a material and willful
breach.
-4-
(f) If any portion of the covenants or agreements contained in
this Section 7, or the application hereof, is construed to be invalid or
unenforceable, the other portions of such covenant(s) or agreement(s) or the
application thereof shall not be affected and shall be given full force and
effect without regard to the invalid or enforceable portions to the fullest
extent possible. If any covenant or agreement in this Section 7 is held
unenforceable because of the area covered, the duration thereof, or the scope
thereof, then the court making such determination shall have the power to reduce
the area and/or duration and/or limit the scope thereof, and the covenant or
agreement shall then be enforceable in its reduced form.
(g) For purposes of this Section 7, the term "the Company"
shall include the Company, any successor to the Company under Section 8 hereof,
and all present and future direct and indirect subsidiaries and affiliates of
the Company.
8. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of the Company which will
acquire, directly or indirectly, by merger, consolidation, purchase, or
otherwise, all or substantially all of the assets of the Company, and shall
otherwise inure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors and assigns.
Nothing in the Agreement shall preclude the Company from consolidating or merger
into or with or transferring all or substantially all of its assets to another
person. In that event, such other person shall assume this Agreement and all
obligations of the Company hereunder. Upon such a consolidation, merger, or
transfer of assets and assumption, the term "the Company" as used herein, shall
mean such other person and this Agreement shall continue in full force and
effect.
9. Withholding. The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
10. Gross-Up for Excise Tax. If any payments or benefits to be received
by the Executive hereunder (such payments or benefits, excluding the Gross-Up
Payment described herein, being hereinafter referred to as the "Total
Payments"), will be subject to any excise tax imposed under Section 4999 of the
Code (the "Excise Tax"), the Company shall pay to the Executive an additional
amount (the "Gross-Up Payment"), such that the net amount retained by the
Executive after deduction of any Excise Tax on the Total Payments and any
Federal, state and local income and employment taxes and Excise Tax upon the
Gross-Up Payment, shall be equal to the Total Payments. For purposes of
determining the amount of the Gross-Up Payment, the Executive shall be deemed to
pay Federal income tax at the highest marginal rate of Federal income taxation
in the calendar year in which the Gross-Up Payment is to be made, and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of the Executive's residence on the date on which the Gross-Up Payment
is calculated for purposes of this Section 10, net of the maximum
-5-
reduction in Federal income taxes which could be obtained from the deduction of
such state and local taxes. The Executive and the Company shall each reasonably
cooperate with the other in connection with any administrative or judicial
proceedings concerning the existence or amount of liability for Excise Tax with
respect to the Total Payments.
11. (a) Nonassignability. Neither this Agreement or any right or
interest hereunder shall be assignable by the Executive or his legal
representatives without the Company's prior written consent.
(b) Attachment. Except as required by law, the right to receive
payments under this Agreement shall not be subject to anticipation, sale,
encumbrance, charge, levy, or similar process or assignment by operation of law.
12. Waivers Not to be Continued. Any waiver by a party of any breach of
this Agreement by another party shall not be construed as a continuing waiver or
as a consent to any subsequent breach by the other party.
13. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice:
A. If to the Executive, to:
Xxxxxxx X. Xxxxx, Esq.
c/o American Business Financial Services, Inc.
BalaPointe Office Centre
000 Xxxxxxxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxxx, XX 00000
B. If to the Company, to:
American Business Financial Services, Inc.
BalaPointe Office Centre
000 Xxxxxxxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Board of Directors
With a copy to: Xxxxxxxxx X. Xxxxxx, Esquire
Blank Rome Xxxxxxx & XxXxxxxx
Four Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
-6-
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
14. Jurisdiction. Company and the Executive consent to the exclusive
jurisdiction of the courts of the Commonwealth of Pennsylvania and the United
States District Court for the Eastern District of Pennsylvania in any and all
actions arising hereunder and irrevocably consent to service of process as set
forth in Section 13 hereof.
15. Acceleration. If the Company fails to pay the Executive any of the
amounts due to him under Sections 3, 4 or 6 hereof, thirty (30) days after
having received written notice from the Executive of such failure to pay, the
Executive shall have the right to accelerate future payments of all sums due the
Executive under Sections 3, 4 and 6 hereof, without discount.
16. Indemnity; No Mitigation. If the Company fails to pay the Executive
any of the amounts due to him under Sections 3 or 6 hereof or fails to provide
the Executive with any of the benefits due to him under Section 4 hereof, thirty
(30) days after having received written notice from the Executive of such
failure, the Executive shall be entitled to full reimbursement from the Company
for all costs and expenses (including reasonable attorneys fees) incurred by the
Executive in enforcing his rights under this Agreement, plus interest at the
rate of 9% per annum on the improperly withheld amounts or improperly withheld
benefits due to the Executive under Sections 3, 4 or 6 hereof. In the event of a
material breach of this Agreement by the Company, the Executive shall have no
duty to mitigate damages and any income earned by the Executive from other
employment after such breach shall not reduce the damages otherwise due to the
Executive by reason of such breach.
17. General Provisions.
(a) This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof, and supersedes and
replaces all prior agreements between the parties. No amendment, supplement,
waiver or termination of any of the provisions hereof shall be effective unless
in writing and signed by the party against whom it is sought to be enforced. Any
written amendment, supplement, waiver or termination hereof executed by the
Company and the Executive shall be binding upon them and upon all other persons,
without the necessity of securing the consent of any other person and no person
shall be deemed to be a third party beneficiary under this Agreement.
(b) The term "person" as used in this Agreement means a
natural person, joint venture, corporation, sole proprietorship, trust, estate,
partnership, cooperative, association, non-profit organization or any other
legally cognizable entity.
(c) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
-7-
(d) No failure on the part of any party hereto to exercise and
no delay in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other rights, power or remedy.
(e) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
(f) This Agreement shall be governed and construed and the
legal relationships of the parties determined in accordance with the laws of the
Commonwealth of Pennsylvania applicable to contracts executed and to be
performed solely in the Commonwealth of Pennsylvania.
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
(Corporate Seal) By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------------
Attest: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Witness: /s/ Xxxxxxx Xxxxxxxx
-----------------------
/s/ Xxxxxxx X. Xxxxx (SEAL)
----------------------------------
XXXXXXX X. XXXXX
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