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EXHIBIT 10.34
December 23, 1991
JPS Textile Group, Inc.
Xxxxx 000
000 Xxxxx Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Gentlemen:
This letter confirms my agreement with JPS Textile Group, Inc. (the
"Company"), for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, with respect to the following:
1. If the Company terminates my employment prior to the fifth
anniversary of the date hereof (the "Five-Year Period") other than for "cause"
(as defined in Paragraph 2 below), I shall be entitled to receive as severance
an amount equal to my annual base salary in effect at the time of such
termination payable in the ordinary course, as if my employment had not been
terminated (this shall include fringe benefits accorded all active employees,
except L.T.D., provided appropriate contributions are made as required);
provided, however, that in no event shall any payment be made pursuant to this
Paragraph 1 to the extent such payment would constitute an "excess parachute
payment" as defined in Section 280G(b) of the Internal Revenue Code of 1986, as
amended, or the corresponding provisions of any successor statute.
2. For the purposes hereof, the term "cause" shall mean any of
the following:
(i) My failure to perform any material obligations of my
employment and which I shall have failed to cure within ten (10) days
after receiving written notice thereof from the Company; or
(ii) I shall have violated the provisions of Paragraph 3 hereof; or
(iii) The Company shall reasonably believe that I have committed an
act of fraud, embezzlement, theft or dishonesty against the Company; or
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JPS Textile Group, Inc
December 23, 1991
Page 2
(iv) I shall have been convicted of (or plead nolo contendere to)
any felony or any misdemeanor involving moral turpitude or which might,
in the reasonable opinion of the Company, cause embarrassment to the
Company.
In the event that during the Five-Year Period, the Company elects
to terminate my employment for "cause", the Company shall send me written
notice thereof terminating my employment and describing the action constituting
"cause", and thereupon the Company shall have no further obligations pursuant
to this letter agreement, but I shall have the obligations provided for in
Paragraph 3 below. In the event that during the Five-Year Period, I leave the
employ of the Company of my own accord, the Company shall have no further
obligations pursuant to this letter agreement but I shall have the obligations
provided for in Paragraph 3 below.
3. (a) I hereby agree that during my employment and during the
period from the date of termination of my employment through and including the
date which is one year from the date of the termination of my employment, I
shall not, without the prior written approval of the Company, directly or
indirectly through any other person, firm or corporation, (i) engage or
participate in or become employed by or render advisory or other services to or
for any person, firm or corporation, or in connection with any business
enterprise, which is, directly or indirectly, in competition with any of the
business operations or activities of the Company, (ii) hire, solicit, raid,
entice or induce any person or organization who on the date of termination of
employment is, or within the last six (6) months of my employment was a
customer of the Company, to become a customer of any person, firm or
corporation, and I shall not approach any such customer for such purpose or
knowingly approve the taking of such actions by other persons, or (iii)
solicit, raid, entice or induce any such person who on the date of termination
of my employment is, or within the last six (6) months of my employment by the
Company was, an employee of the Company, to become employed by any person, firm
or corporation, and I shall not approach any such employee for such purpose or
authorize or knowingly approve the taking of such actions by any other person;
provided, however, that I shall not be bound by the restrictions contained in
clause (i) of this Paragraph 3(a) if the Company terminates my employment prior
to the fifth anniversary of the date hereof other than for "cause" (as defined
in Paragraph 2 hereof). For the purposes hereof, a person, firm, corporation
or other business enterprise shall be deemed to be in competition with the
Company if it is a textile manufacturer or seller which sells
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JPS Textile Group, Inc.
December 23, 1991
Page 3
and/or manufacturers, as the case may be, products of the kind manufactured and
sold by the Company, within any geographic area in which the Company operates
or sells its products.
(b) Recognizing that the knowledge, information and relationship with
customers, suppliers, and agents, and the knowledge of the Company's and its
subsidiary companies' business methods, systems, plans and policies which I
have established, received or obtained during my employment or hereafter shall
establish, receive or obtain as an employee of the Company or its subsidiary
companies, are valuable and unique assets of the respective businesses of the
Company and its subsidiary companies, I agree that, during my employment and at
all times thereafter, I shall not (otherwise than pursuant to my duties)
disclose or use, without the prior written approval of the Company, any such
knowledge or information pertaining to the Company or any of its subsidiary
companies, their business, personnel or policies, to any person, firm,
corporation or other entity, for any reason or purpose whatsoever. The
provisions of this Paragraph 3(b) shall not apply to information which is or
shall become generally known to the public or the trade (except by reason of
the breach of my obligations hereunder), information which is or shall become
available in trade or other publications, information known to me prior to
entering the employ of the Company, and information which I am required to
disclose by law or an order of a court of competent jurisdiction. If I am
required by law or a court order to disclose such information, I shall notify
the Company of such requirement prior to disclosing such information and
provide the Company an opportunity (if the Company so elects) to contest such
law or court order.
4. If any provision of this letter agreement or the application
of any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this letter agreement or the application of such provision to
such person or circumstances other than those to which it is so determined to
be invalid and unenforceable, shall not be affected thereby, and each provision
thereof shall be validated and shall be enforced to the fullest extent
permitted by law.
5. This letter agreement (i) is in lieu of any other provision
for severance payments by the Company which are hereby waived, (ii) contains
the entire agreement among the parties hereto with respect to the subject
matter hereof and supercedes all prior and contemporaneous agreements with
respect thereto, (iii) may be executed and delivered in one or more
counterparts, all of which
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JPS Textile Group, Inc.
December 23, 1991
Page 4
taken together shall constitute but one and the same original instrument, and
(iv) shall be governed and construed in accordance with the laws of the State
of New York without regard to the conflicts of law principles of such state.
Very truly yours,
By: /s/ Xxxxx X. Xxxxx (Signature)
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Print Name: Xxxxx X. Xxxxx
Print Title: V.P./General Manager
ACCEPTED AND AGREED TO:
JPS TEXTILE GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: President
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MUTUAL MODIFICATION
AND ASSIGNMENT OF
EMPLOYMENT AGREEMENT
The parties to this modification and assignment are Xxxxx X. Xxxxx
(hereafter "Employee"), JPS Textile Group, Inc. (hereafter "Company"), and JPS
Elastomerics Corp. (hereafter "Employer").
1. BACKGROUND AND STATEMENT OF INTENT. On December 23, 1991, the
Employee and the Company entered into an Employment Agreement, a copy of which
is attached as Attachment A. It is the intent and desire of the parties that
the Employment Agreement be assigned from the Company to the Employer. After
the execution of this document, the Employer shall be the employer-in-fact of
the Employee, and the Company shall be released from any and all liability
under the prior agreement.
2. ASSIGNMENT AND MODIFICATION. The parties to this agreement do hereby
specifically modify the Employment Agreement by replacing the Company (JPS
Textile Group, Inc.) in the Employment Agreement, with the Employer (JPS
Elastomerics Corp.), such that the Employer shall be the employer-in-fact of
the Employee. To this end, the Company transfers and assigns to the Employer
all of its right, title, and interest in and to the Employment Agreement.
Likewise, the Employer accepts and assumes all of the obligations and
responsibilities of the Employment Agreement, including the payment of
compensation to the Employee, as stated herein. Moreover, the Employer does
also release, acquit, and discharge the Company from any and all liability and
responsibility under the Employment Agreement.
3. CONSENT BY EMPLOYEE. The Employee does hereby consent to the
modification and assignment of the Employment Agreement from the Company to the
Employer, and does
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acknowledge that the assignment and modification is supported by good and
sufficient consideration which includes, but is not limited to, the assumption
by the Employer of the financial responsibility of the Employment Agreement,
and the Employee's opportunity for continued employment and payment of
compensation as provided in the Employment Agreement. Furthermore, since the
Employment Agreement has been assigned and the Employer has assumed all of the
responsibilities thereunder, the Employee does hereby release, acquit, and
discharge the Company from any liability, claim, debt, payment, or
consideration, whatsoever, under the Employment Agreement.
4. This modification and assignment is the entire agreement of the
parties and supersedes any prior agreement or understanding between them
regarding the subject of this agreement. Its language shall be construed as a
whole and according to its fair meaning, and not strictly for or against either
party. It is expressly understood and agreed that any rule requiring
construction of this modification and assignment against its drafter shall not
be applied in this case. This modification and assignment is governed by the
laws of the State of New York.
5. The parties acknowledge having an adequate opportunity to consider
the terms of this modification and assignment with counsel and advisors of
their choice and do voluntarily accept and agree to its terms, as evidenced by
their signatures below.
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IN WITNESS WHEREOF, this agreement is made and entered into on this 20
day of August, 1996.
WITNESSES:
/s/Xxxxx X. Xxxxxx /s/Xxxxx X. Xxxxx
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Signature of "Employee"
-------------------------
/s/Xxxxxxx Xxxxx /s/Xxxxx X. Xxxxxx
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/s/Xxxxxx Xxxxxx JPS Textile Group, Inc.
------------------------- (the "Company")
/s/Xxxxxxx Xxxxx /s/Xxxxx X. Xxxxxx
------------------------- --------------------------
/s/Xxxxxx Xxxxxx (the "Employer")
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SECOND MODIFICATION OF EMPLOYMENT AGREEMENT
The parties to this Second Modification of Employment Agreement are Xxxxx
X. Xxxxx ("Employee") and JPS Elastometrics Corp. ("Employer").
1. BACKGROUND AND STATEMENT OF INTEREST. On December 23, 1991, the
Employee entered into an Employment Agreement, a copy of which is attached and
incorporated by reference. That Agreement was subsequently modified and
assigned by mutual agreement on August 20, 1996, to JPS Elastometrics Corp.
Significant portions of the Employment Agreement are scheduled to expire in
December 23, 1996, and it is the intent of the Employee and Employer to
postpone the original expiration date and extend the Employment Agreement for a
period of three years, or until December 23, 1999.
2. MUTUAL MODIFICATION. In exchange for good and valuable consideration,
including the promises made herein, the Employee and Employer agree to extend
the duration of the Employment Agreement by modifying it as follows:
a. At Paragraph 1, page 1, substitute the following language:
"If the Company [JPS Elastometrics Corp.] terminates my
employment between December 23, 1996, to December 23, 1999
(the "Three-Year-Period"), other than for "cause" (as defined
in paragraph 2 below), I shall be entitled to receive as
severance an amount equal to my annual base salary in effect
at the time of such termination payable in the ordinary course,
as if my employment had not been terminated (this shall include
fringe benefits accorded all active employees, except L.T.D.,
provided appropriate contributions are made as required);
provided, however, that in no event shall any payment be made
pursuant to this paragraph 1 to the extent such payment would
constitute as "excess parachute payment" as defined in Section
280G(b) of the Internal Revenue Service Code of 1986, as
amended, or the corresponding provisions of any successor
statute.
b. At paragraph 2, page 2, substitute "Three-Year-Period" for
"Five-Year-Period."
c. At paragraph 3(a), fifth line from the bottom of page 2,
substitute "third anniversary" for "fifth anniversary."
d. At any other portions of the Employment Agreement referencing
"Five-Year Period" or "Five-Year Anniversary" substitute
"Three-Year Period" or "Three-Year Anniversary."
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3. EFFECTIVE DATE. The parties agree that this Second Modification of
the Employment Agreement shall take effect on the last day of the original term
of the Employment Agreement, December 23, 1996, such that employment shall
continue until December 23, 1999, unless sooner terminated pursuant to the
provisions of the Employment Agreement.
4. Except as specifically modified above, all other provisions of the
Employment Agreement will remain in full force and effect for the new term of
the Employment Agreement.
Accepted and Agreed to: Accepted and Agreed to:
By: /s/Xxxxx X. Xxxxxx By:
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V.P. JPS Elastomerics Corp. Xxxxx X. Xxxxx
Date: 11-5-96 Date:
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