EXHIBIT 10.54
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
made as of the 27/th/ day of June, 2001, and as set forth herein, amends and
restates in its entirety that certain Employment Agreement dated April 1, 2000,
as amended on March 20, 2001 (together, the "Original Agreement") between
ImageMax, Inc., a Pennsylvania corporation (the "Company") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
an individual (the "Employee").
WHEREAS, since the execution of and amendment to the Original
Agreement, Employee's title, duties, responsibilities and compensation have
changed; and
WHEREAS, in light of such changes, the parties desire to amend and
restate the Original Agreement in its entirety in accordance with the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the parties,
subject to the terms and conditions set forth herein, agree as follows:
1. Employment and Term. The Company hereby employs Employee as Chief
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Executive Officer (the "Position") for a period commencing June 27, 2001 and
continuing until December 31, 2004, subject to early termination pursuant to the
provisions of Section 9 hereof (the "Initial Term") and as may be extended from
time to time by mutual consent of the Company and Employee. The Initial Term of
employment and any renewal periods hereunder, subject to the provisions of
Section 9 hereof, are hereinafter referred to as the "Term."
2. Duties. During the Term, Employee shall serve the Company
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faithfully and to the best of his ability and shall devote his full time,
attention, skill and efforts to the performance of the duties required by or
appropriate for his Position. Employee agrees to assume such duties and
responsibilities as may be customarily incident to such position, and as may be
reasonably assigned to Employee from time to time by the Executive Committee of
the Board of Directors (the "Executive Committee"). Employee shall report,
throughout the Term, to the Executive Committee. Employee shall perform his
duties from the Company's office in Fort Washington, Pennsylvania, but shall
travel to the extent reasonably necessary to perform the duties hereunder. If
the Employee is required to travel internationally (excluding North America), it
shall be in business class.
3. Other Business Activities. During the Term, Employee will not,
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without the prior written consent of the Company, directly or indirectly engage
in any other business activities or pursuits whatsoever, except such activities
in connection with any charitable or civic activities, personal investments and
serving as an executor, trustee or in other similar fiduciary capacity as do not
interfere with his performance of his responsibilities and obligations pursuant
to this Agreement.
4. Compensation.
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4.1 The Company shall pay Employee, and Employee hereby agrees to
accept, as compensation for all services rendered hereunder and for Employee's
covenant not to compete as provided for in Section 8 hereof, a base salary at
the annual rate of One Hundred Seventy Five Thousand Dollars ($175,000) (as the
same may hereafter be increased, the "Base Salary"), which shall continue as
such for the remainder of the Term unless otherwise increased pursuant to this
Section 4 of this Agreement. The Base Salary shall be inclusive of all
applicable income, social security and other taxes and charges which are
required by law to be withheld by the Company or which are requested to be
withheld by Employee, and which shall be withheld and paid in accordance with
the Company's normal payroll practice for its similarly situated employees from
time to time in effect. Increases in the Base Salary may be granted from time
to time at the sole discretion of the Company. In addition to the Base Salary,
the Company shall pay Employee, within thirty (30) days after receipt of the
final audit for each fiscal year, a bonus (the "Bonus") in the same manner as
for similarly situated employees. Such Bonus shall be based on the guidelines
established by the Company in advance of each fiscal year under the Company's
formal incentive compensation plan, including, but not limited to, the results
of the Company's operations, achievement of business unit targets, if
applicable, and individual performance as compared to specific management
objectives set prior to each fiscal year. Payment of any Bonus upon termination
of Employee shall be paid in accordance with Section 9 hereof.
4.2 The Employee acknowledges that the Company granted the Employee
an incentive stock option (the "Option") to purchase seventy five thousand
(75,000) shares of Common Stock, no par value, of the Company ("Common Stock").
The Option is subject to and in accordance with the provisions of the 1997
Incentive Plan of the Company, as amended (the "Plan") and vests in accordance
with the terms set forth in the Incentive Stock Option Agreement between the
Company and the Employee dated as of February 15, 2000. In addition to the
Option, the Company may grant to the Employee additional stock options under the
Plan as determined by the Compensation Committee of the Board from time to time
in its sole discretion.
5. Benefits and Expenses. Except as otherwise provided in this
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Agreement or in Schedule A attached hereto, the Employee shall be entitled to
(i) all standard benefits for executive level vice-presidents of the Company and
(ii) those benefits set forth on Schedule A hereto (collectively, "Benefits").
6. Confidentiality. Employee recognizes and acknowledges that the
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Proprietary Information (as hereinafter defined) is a valuable, special and
unique asset of the Business of the Company. As a result, both during the Term
and thereafter, Employee shall not, without the prior written consent of the
Company, for any reason, either directly or indirectly, divulge to any third-
party or use for his own benefit, or for any purpose other than the exclusive
benefit of the Company, any confidential, proprietary, business and technical
information or trade secrets of the Company or of any subsidiary or affiliate of
the Company ("Proprietary Information") revealed, obtained or developed in the
course of his employment with the Company. Nothing herein contained shall
restrict Employee's ability to make such disclosures as may be necessary or
appropriate to the effective and efficient discharge of the duties required
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by or appropriate for his Position or as such disclosures may be required by
law; and further provided, that nothing herein contained shall restrict Employee
from divulging or using for his own benefit or for any other purpose any
Proprietary Information that is readily available to the general public so long
as such information did not become available to the general public as a direct
or indirect result of Employee's breach of this Section 6. Failure by the
Company to ▇▇▇▇ any of the Proprietary Information as confidential or
proprietary shall not affect its status as Proprietary Information under the
terms of this Agreement.
7. Property.
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(a) All right, title and interest in and to Proprietary
Information shall be and remain the sole and exclusive property of the Company.
During the Term, Employee shall not remove from the Company's offices or
premises any documents, records, notebooks, files, correspondence, reports,
memoranda or similar materials of or containing Proprietary Information, or
other materials or property of any kind belonging to the Company unless
necessary or appropriate in accordance with the duties and responsibilities
required by or appropriate for his Position and, in the event that such
materials or property are removed, all of the foregoing shall be returned to
their proper files or places of safekeeping as promptly as possible after the
removal shall serve its specific purpose. Employee shall not make, retain,
remove and/or distribute any copies of any of the foregoing for any reason
whatsoever except as may be necessary in the discharge of his assigned duties
and shall not divulge to any third person the nature of and/or contents of any
of the foregoing or of any other oral or written information to which he may
have access or with which for any reason he may become familiar, except as
disclosure shall be necessary in the performance of his duties or as otherwise
permitted pursuant to Section 6 hereof; and upon the termination of his
employment with the Company, he shall leave with or return to the Company all
originals and copies of the foregoing then in his possession, whether prepared
by Employee or by others.
(b) (i) Employee agrees that all right, title and
interest in and to any innovations, designs, systems, analyses, ideas for
marketing programs, and all copyrights, patents, trademarks and trade names, or
similar intangible personal property which have been or are developed or created
in whole or in part by Employee (1) at any time and at any place while the
Employee is employed by Company and which, in the case of any or all of the
foregoing, are related to and used in connection with the Business of the
Company, (2) as a result of tasks assigned to Employee by the Company, or (3)
from the use of premises or personal property (whether tangible or intangible)
owned, leased or contracted for by the Company (collectively, the "Intellectual
Property"), shall be and remain forever the sole and exclusive property of the
Company. The Employee shall promptly disclose to the Company all Intellectual
Property, and the Employee shall have no claim for additional compensation for
the Intellectual Property.
(ii) The Employee acknowledges that all the
Intellectual Property that is copyrightable shall be considered a work made for
hire under United States Copyright Law. To the extent that any copyrightable
Intellectual Property may not be considered a work made for hire under the
applicable provisions of the United States Copyright Law, or to
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the extent that, notwithstanding the foregoing provisions, the Employee may
retain an interest in any Intellectual Property that is not copyrightable, the
Employee hereby irrevocably assigns and transfers to the Company any and all
right, title, or interest that the Employee may have in the Intellectual
Property under copyright, patent, trade secret and trademark law, in perpetuity
or for the longest period otherwise permitted by law, without the necessity of
further consideration. The Company shall be entitled to obtain and hold in its
own name all copyrights, patents, trade secrets, and trademarks with respect
thereto.
(iii) Employee further agrees to reveal promptly
all information relating to the same to an appropriate officer of the Company
and to cooperate with the Company and execute such documents as may be necessary
or appropriate (1) in the event that the Company desires to seek copyright,
patent or trademark protection, or other analogous protection, thereafter
relating to the Intellectual Property, and when such protection is obtained, to
renew and restore the same, or (2) to defend any opposition proceedings in
respect of obtaining and maintaining such copyright, patent or trademark
protection, or other analogous protection.
(iv) In the event the Company is unable after
reasonable effort to secure Employee's signature on any of the documents
referenced in Section 7(b)(iii) hereof, whether because of Employee's physical
or mental incapacity or for any other reason whatsoever, Employee hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as Employee's agent and attorney-in-fact, to act for and in his
behalf and stead to execute and file any such documents and to do all other
lawfully permitted acts to further the prosecution and issuance of any such
copyright, patent or trademark protection, or other analogous protection, with
the same legal force and effect as if executed by Employee.
8. Noncompetition.
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8.1 Covenant Not to Compete. The Employee shall not, during the
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Term, including any extensions of the Term, and during the Restricted Period,
as hereinafter defined, do any of the following directly or indirectly without
the prior written consent of the Company:
(a) compete with the Company or any of its respective
affiliates or subsidiaries, or any of their respective successors or assigns,
whether now existing or hereafter created or acquired (collectively, the
"Related Companies"), in any document management business conducted during the
Term or, as of the date of this Agreement, contemplated to be conducted during
the Term of this Agreement (as has been determined by the Board) or in any other
business conducted by the Company in which the Employee is or has been actively
engaged (the "Restricted Business") within any geographic area located within
the United States of America, its possessions or territories (the "Restricted
Area");
(b) become interested (whether as owner, stockholder,
lender, partner, co-venturer, director, officer, employee, agent, consultant or
otherwise) in any person, firm, corporation, association or other entity that
competes with the Related Companies in the
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Restricted Business within the Restricted Area; provided, however, that nothing
contained in this Section 8(b) shall prohibit Employee from owning, as a passive
investor, not more than five percent (5%) of the outstanding securities of any
class of any publicly-traded securities of any publicly held company listed on a
well-recognized national securities exchange or on an interdealer quotation
system of the National Association of Securities Dealers, Inc;
(c) influence or attempt to influence any supplier, customer or
prospective customer of the Company or any of the Related Companies to terminate
or modify any written or oral agreement or course of dealing with the Company or
the Related Companies; or
(d) influence or attempt to influence any person (other than a
family member) to either (i) terminate or modify his employment, consulting,
agency, distributorship or other arrangement with the Company or any of the
Related Companies, or (ii) employ or retain, or arrange to have any other person
or entity employ or retain, any person who has been employed or retained by the
Company or any of the Related Companies as an employee, consultant, agent or
distributor of the Company or the Related Companies at any time during the one-
year period immediately preceding the termination of Employee's employment
hereunder.
8.2 Restricted Period. Other than as specifically provided in this
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Section 8.2, the Restricted Period shall begin on the date of the termination of
this Agreement and shall continue for a period of eighteen (18) months
thereafter, provided, however, that if this Agreement is not renewed upon the
expiration of the Initial Term, the Restricted Period shall begin on the date of
such expiration and shall continue for a period of six (6) months thereafter.
8.3 Forfeiture of Options. Notwithstanding any other provision of
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this Agreement, any unexercised stock options or unvested stock award shall
become nonexercisable and shall be forfeited if the Employee is terminated
pursuant to Section 8.1 hereof.
9. Termination. Employee's employment hereunder may be terminated during
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the Term upon the occurrence of any one of the events described in this Section
9. Upon termination, Employee shall be entitled only to such compensation and
benefits as described in this Section 9.
9.1 Termination for Disability.
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(a) In the event of the disability of the Employee such that
Employee is unable to perform his duties and responsibilities hereunder to the
full extent required by this Agreement by reasons of illness, injury or
incapacity for a period of more than one hundred twenty (120) consecutive days
or more than one hundred eighty (180) days, in the aggregate, during any seven
hundred thirty (730) day period ("Disability"), Employee's employment hereunder
may be terminated by the Company by notice to Employee pursuant to a
determination by the Executive Committee.
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(b) In the event of a termination of Employee's
employment hereunder pursuant to Section 9.1(a), Employee will be entitled to
receive all accrued and unpaid (as of the date of such termination) Base Salary,
Benefits, Earned Bonus (as defined in the Plan) and other forms of compensation
and benefits payable or provided in accordance with the terms of any then
existing compensation or benefit plan or arrangement ("Other Compensation"),
including payment prescribed under any disability or life insurance plan or
arrangement in which he is a participant or to which he is a party as an
employee of the Company. Except as specifically set forth in this Section
9.1(b), the Company shall have no liability or obligation to Employee for
compensation or benefits hereunder by reason of such termination.
(c) For purposes of this Section 9.1, except as
hereinafter provided, the determination as to whether Employee is Disabled shall
be made by a licensed physician selected by Employee and shall be based upon a
full physical examination and good faith opinion by such physician. In the event
that the Executive Committee disagrees with such physician's conclusion, the
Executive Committee may require that Employee submit to a full physical
examination by another licensed physician selected by Employee and approved by
the Company. If the two opinions shall be inconsistent, a third opinion shall be
obtained after full physical examination by a third licensed physician selected
by Employee and approved by the Company. The majority of the three opinions
shall be conclusive.
9.2 Termination by Death. In the event that Employee dies
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during the Term, Employee's employment hereunder shall be terminated thereby and
the Company shall pay to Employee's executors, legal representatives or
administrators an amount equal to the accrued and unpaid portion of his Base
Salary, Benefits, Earned Bonus and Other Compensation through the end of the
month in which he dies. Except as specifically set forth in this Section 9.2,
the Company shall have no liability or obligation hereunder to Employee's
executors, legal representatives, administrators, heirs or assigns or any other
person claiming under or through him by reason of Employee's death, except that
Employee's executors, legal representatives or administrators will be entitled
to receive the payment prescribed under any death or disability benefits plan in
which he is a participant as an employee of the Company, and to exercise any
rights afforded under any compensation or benefit plan then in effect.
9.3 Termination By Company for Cause.
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(a) The Company may terminate Employee's employment
hereunder at any time for "cause" upon written notice to Employee based upon a
good faith determination by the Executive Committee. The good-faith nature of
the determination shall not in and of itself mean that "cause" exists. For
purposes of this Agreement, "cause" shall mean: (i) any material breach by
Employee of any of his obligations under Section 6, 7, or 8 of this Agreement,
if not cured within 30 days notice from the company, (ii) gross incompetence in
the performance by Employee of the duties required by or appropriate for his
Position, if not cured within thirty (30) days notice from the Company, (iii) a
material violation, that is not cured within 30 days notice from the company, of
the Company's employee policies, as may be amended from time to time, or (iv)
other conduct of Employee involving any type of willful
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misconduct with respect to the Company, including without limitation fraud,
embezzlement, theft or proven dishonesty in the course of his employment or
conviction of a felony.
(b) In the event of a termination of Employee's
employment hereunder pursuant to Section 9.3(a), Employee shall be entitled to
receive all accrued but unpaid (as of the effective date of such termination)
Base Salary, Benefits and Other Compensation. All Base Salary and Benefits shall
cease at the time of such termination, subject to the terms of any benefit or
compensation plan then in force and applicable to Employee. Except as
specifically set forth in this Section 9.3, the Company shall have no liability
or obligation hereunder by reason of such termination.
9.4 Termination By Company Without Cause.
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(a) The Company may terminate Employee's employment
hereunder at any time, for any reason, without cause, effective upon the date
designated by the Company upon fifteen (15) days notice to Employee.
(b) In the event of a termination of Employee's
employment hereunder pursuant to Section 9.4(a), Employee shall be entitled to
receive all accrued but unpaid (as of the effective date of such termination)
Base Salary, Benefits, Earned Bonus and Other Compensation, plus continuation of
the then current Base Salary and Benefits (including vesting of options and
other Benefits) for a period of eighteen (18) months thereafter. Except as
specifically set forth in this Section 9.4, the Company shall have no liability
or obligation hereunder by reason of such termination.
9.5 Termination By Employee
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(a) Employee may terminate Employee's employment
hereunder upon sixty (60) days notice of the termination of his employment
hereunder pursuant to this Section 9.5(a) (the date the Employee gives such
notice shall be herein referred to as the "Request Date"). Notwithstanding the
foregoing, upon receipt by the Company of such written notice of termination,
the Company in its sole discretion, may deem such termination effective
immediately (the "Accelerated Termination Date"). In the event the parties
mutually agree to an alternative date of termination, that date shall be
considered the Request Date.
(b) In the event of a termination of Employee's
employment hereunder pursuant to Section 9.5(a) hereof, Employee shall be
entitled to receive all accrued but unpaid (as of the earlier of the Request
Date or the Accelerated Termination Date), Base Salary and Benefits. If the
Company does not terminate the Employee immediately upon receipt of the
termination notice and Employee performs his duties in a satisfactory manner, as
determined in the sole discretion of the Company, until the Request Date,
Employee shall also be entitled to an amount equal to one month's Base Salary
(in
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effect at such time). In addition, in the event of a termination of Employee's
employment pursuant to Section 9.5(a) at the end of the Term upon sixty days
(60) prior written notice and upon the satisfactory completion, in the sole
discretion of the Company, of Employee's duties during the 60-day period after
receipt of such termination notice, Employee shall be entitled to receive an
amount equal to one month's Base Salary (in effect at such time) multiplied by
the number of the complete 12-month periods of ImageMax service (whether or not
pursuant to this Agreement) completed prior to giving notice of termination.
Except as specifically set forth in this Section 9.5(b), all Base Salary,
Benefits and Bonuses shall cease at the time of such termination, subject to the
terms of any benefit or compensation plan then in force and applicable to
Employee. Except as specifically set forth in this Section 9.5, the Company
shall have no liability or obligation hereunder by reason of such termination.
9.6 Sale of Company/Change of Control.
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(a) If there is a Sale of the Company or a Change of
Control during the Term, then the Company or the successor to all or
substantially all of the Company's assets, capital stock or business (the
"Successor Entity"), as the case may be, must offer Employee employment pursuant
to a written contract offer (the "Offer") within five (5) days of such Sale of
the Company or Change of Control. Employee shall, within fifteen (15) days after
receipt of such Offer, either (i) accept the terms of the Offer, such acceptance
indicated by return of a copy of the Offer duly executed, (ii) elect in writing,
provided to the Company or the Successor Entity, as the case may be, to remain
employed under this Agreement for the remainder of the Term, or (iii) elect to
terminate Employee's employment hereunder upon sixty (60) days prior notice,
such termination to be effective at the expiration of said sixty (60) day
period, or sooner, if desired by the Company or the Successor Entity.
(b) For purposes of this Agreement, a "Change of
Control" means either (i) the sale, transfer, assignment or other disposition by
stockholders of the Company, in one transaction or a series of related
transactions, of more than thirty percent (30%) of either the outstanding shares
of common stock or the combined voting power represented by the Company's then
outstanding voting securities entitled to vote generally or the approval by the
stockholders of the Company of a reorganization, merger or consolidation, in
each case, with respect to which persons who were stockholders of the Company
immediately prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than fifty percent (50%) of the combined voting
power entitled to vote generally in the election of directors of the
reorganized, merged or consolidated company's then outstanding securities, in a
liquidation or dissolution of Company or of the sale of all or substantially all
of Company's assets, other than (A) any such sales, transfers, assignments or
other dispositions by such stockholders to their respective Affiliates, (B) any
such transaction effected primarily to reincorporate the Company in another
jurisdiction or (C) any transaction in connection with the simultaneous
acquisition of document management companies and the initial public offering of
the common stock of the Company or its affiliate; or (ii) a majority of members
of the Company's Board of Directors is replaced during any 12-month period by
directors whose appointment or election is not advised by a majority of the
members of the Company's Board of Directors prior to the date of the appointment
or election.
(c) For purposes of this Agreement, "Affiliate" means,
with respect to any stockholder of the Company, (i) any Person directly or
indirectly controlling, controlled by or under common control with such
stockholder, (ii) any Person owning or
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controlling ten percent (10%) or more of the outstanding voting securities of
such stockholder, (iii) any officer, director or general partner of such
stockholder, or (iv) any Person who is an officer, director, general partner,
trustee or holder of ten percent (10%) or more of the outstanding voting
securities of any Person described in clauses (i) through (iv) of this paragraph
(c).
(d) For purposes of this Agreement, "Person" means an
individual, partnership, corporation, joint venture, association, trust,
unincorporated association, other entity or association.
(e) For purposes of this Agreement, a "Sale of the
Company" means a sale, transfer, assignment or other disposition (including by
merger or consolidation), of all of the outstanding stock of the Company, or of
all or substantially all of the assets of the Company, a liquidation or
dissolution of the Company. A "Sale of the Company" shall not include the
consummation of a public offering of Common Stock of the Company or its
affiliate pursuant to a registration statement or any transaction effected
primarily to reincorporate the Company in another jurisdiction.
(f) In the event of termination of Employee's
employment hereunder pursuant to clause (iii) in paragraph (a) above, Employee
shall be entitled to receive all accrued but unpaid (as of the effective date of
such termination) Base Salary, Benefits and Earned Bonus and Other Compensation.
In addition, in such case Employee shall be entitled to receive Base Salary and
Benefits for the eighteen (18) months following the effective date of such
termination (the "Additional Amount"). At his sole option, Employee may receive
the Additional Amount paid either (i) monthly for eighteen (18) months, or (ii)
in one payment on the effective date of such termination, in which case the
value of the Benefits otherwise payable will be monetized, and such payment of
the Additional Amount will be discounted at the then current Federal Short Term
Rate as defined in the Internal Revenue Code of 1986, as amended.
(g) In the event Employee chooses to continue
employment hereunder pursuant to clause (i) or (ii) in paragraph (a) above and
Employee's employment is thereafter terminated prior to the expiration of the
Term for any reason other than Death, Disability or termination pursuant to
clause (iii) in paragraph (a) above, Employee shall be entitled to receive all
the benefits and compensation referred to in paragraph (f) above. In the event
Employee chooses to continue employment hereunder pursuant to clause (ii) in
paragraph (a) above, at the expiration of the Term, Employee shall be entitled
to receive an amount equal to two months' Base Salary (in effect at such time)
multiplied by the number of complete 12-month periods of service completed prior
to such termination
(h) If this Agreement is assumed by any Successor
Entity, any payments set forth herein shall be the obligation of such Successor
Entity. Except as specifically set forth in this Agreement, (i) all Base Salary,
Benefits and Bonuses shall cease at the time of such termination, subject to the
terms of any benefit or compensation plans then in force and applicable to
Employee, and (ii) the Company shall have no liability or obligation hereunder
by reason of such termination.
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(i) If the Successor Entity fails to make the Offer, Employee
shall be entitled to receive all of the benefits and compensation referred to in
paragraph (f) above.
9.7 Severance Upon Expiration of the Initial Term. If this Agreement
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is not renewed by the parties upon the expiration of the Initial Term, Employee
shall be entitled to receive all accrued but unpaid (as of the effective date of
such termination) Base Salary, Benefits, Earned Bonus and Other Compensation,
plus continuation of the then current Base Salary and Benefits (including
vesting of options and other Benefits) for a period of six (6) months
thereafter. Except as specifically set forth in this Section 9.7, the Company
shall have no liability or obligation hereunder by reason of such termination.
10. Other Agreements. Employee represents and warrants to the Company
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that:
(a) There are no restrictions, agreements or understandings
whatsoever to which Employee is a party which would prevent or make unlawful
Employee's execution of this Agreement or Employee's employment hereunder, or
which is or would be inconsistent or in conflict with this Agreement or
Employee's employment hereunder, or would prevent, limit or impair in any way
the performance by Employee of his obligations hereunder,
(b) That Employee's execution of this Agreement and Employee's
employment hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which Employee is a party or by which
Employee is bound, and
(c) That Employee is free to execute this Agreement and to enter
into the employ of the Company pursuant to the provisions set forth herein.
(d) In the event that they are still in effect, that Employee
shall disclose the existence and terms of the restrictive covenants set forth in
this Agreement to any employer that the Employee may work for during the term of
this Agreement (which employment is not hereby authorized) or after the
termination of the Employee's employment at the Company.
11. Survival of Provisions. The provisions of this Agreement set forth in
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Sections 6, 7, 8, 9, 22 and 23 hereof shall survive the termination of
Employee's employment hereunder.
12. Acknowledgment of Continued Obligations of Employment. Notwithstanding
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any amendment to the "Term" of Employee's employment with the Company as set
forth in Section 1 hereof, the Employee and the Company hereby acknowledge that
Sections 6, 7, 8, 22 and 23 hereof are binding upon the parties for the
continuous term of employment set forth in both the Original Agreement and this
Agreement, and, as such, Employee is and will continue to be bound by those
provisions for the entire duration of his employment (and thereafter) with the
Company, whether pursuant to the Original Agreement, this Agreement or
otherwise.
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13. Indemnification. The Company shall indemnify the Employee from and
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against any and all losses, costs, damages or expenses the Employee may sustain
by reason of his employment hereunder in the same manner and to the same extent
as the executive officers of the Company.
14. Successors and Assigns. This Agreement shall inure to the benefit of
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and be binding upon the Company and Employee and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided, however,
that neither Employee nor the Company may make any assignments of this Agreement
or any interest herein, by operation of law or otherwise, without the prior
written consent of the other party hereto, except that, without such consent,
the Company may assign this Agreement to an Affiliate or any successor to all or
substantially all of its assets and business by means of liquidation,
dissolution, merger, consolidation, transfer of assets, or otherwise, provided
that such successor assumes in writing all of the obligations of the Company
under this Agreement, subject, however, to Employee's rights as to termination
as provided in Section 9.6 hereof.
15. Notice. Any notice or communication required or permitted under this
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Agreement shall be made in writing and sent by certified or registered mail,
return receipt requested, addressed as follows:
If to Employee:
▇▇▇▇ ▇▇▇▇▇▇▇▇
ImageMax, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Company:
ImageMax, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Attention: Executive Committee of the Board of Directors
or to such other address as either party may from time to time duly specify by
notice given to the other party in the manner specified above.
16. Entire Agreement; Amendments. This Agreement contains the entire
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agreement and understanding of the parties hereto relating to the subject matter
hereof, and, except as provided in Section 12 hereof, merges and supersedes all
prior and contemporaneous discussions, agreements and understandings of every
nature between the parties hereto relating to the employment of Employee with
the Company. This Agreement specifically supersedes the Original Agreement and
the Employment Agreement between the Company and Employee dated May, 1999. This
Agreement may not be changed or modified, except by an agreement in writing
signed by each of the parties hereto.
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17. Waiver. The waiver of the breach of any term or provision of this
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Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
18. Governing Law. This Agreement shall be construed and enforced in
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accordance with the laws of the Commonwealth of Pennsylvania.
19. Invalidity. In case any one or more of the provisions contained in
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this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the validity of any other provision of this Agreement, and such
provision(s) shall be deemed modified to the extent necessary to make it
enforceable.
20. Section Headings. The section headings in this Agreement are for
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convenience only; they form no part of this Agreement and shall not affect its
interpretation.
21. Number of Days. In computing the number of days for purposes of this
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Agreement, all days shall be counted, including Saturdays, Sundays and legal
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or day which is a holiday in Philadelphia, Pennsylvania, then
such final day shall be deemed to be the next day which is not a Saturday,
Sunday or legal holiday.
22. Specific Enforcement; Extension of Period.
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(a) Employee acknowledges that the restrictions contained in
Sections 6, 7, and 8 hereof are reasonable and necessary to protect the
legitimate interests of the Company and its affiliates and that the Company
would not have entered into this Agreement in the absence of such restrictions.
Employee also acknowledges that any breach by him of Sections 6, 7, or 8 hereof
will cause continuing and irreparable injury to the Company for which monetary
damages would not be an adequate remedy. The Employee shall not, in any action
or proceeding to enforce any of the provisions of this Agreement, assert the
claim or defense that an adequate remedy at law exists. In the event of such
breach by Employee, the Company shall have the right to enforce the provisions
of Sections 6, 7, and 8 of this Agreement by seeking injunctive or other relief
in any court, and this Agreement shall not in any way limit remedies of law or
in equity otherwise available to the Company. If an action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover, in addition to any other relief, reasonable
attorneys' fees, costs and disbursements. In the event that the provisions of
Sections 6, 7, or 8 hereof should ever be adjudicated to exceed the time,
geographic, or other limitations permitted by applicable law in any applicable
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, or other limitations permitted by applicable
law.
(b) In the event that Employee shall be in breach of any of the
restrictions contained in Section 8 hereof, then the Restricted Period shall be
extended for a period of time equal to the period of time that Employee is in
breach of such restriction.
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23. Arbitration. In the event that the parties are unable to resolve any
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disputes arising hereunder, such dispute shall be submitted for a binding
determination by a neutral third party designated by the President of the
Philadelphia office of the American Arbitration Association.
24. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed the day and year first written above.
IMAGEMAX, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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SCHEDULE A
1. Life Insurance. Company will provide Employee, at no expense to the
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Employee, life insurance coverage in an amount equal to three (3) times
Employee's initial Base Salary.
2. Vacation. The Employee shall be entitled to twenty (20) days per year of
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paid vacation.
3. Business Travel Accident Insurance. Company will provide Employee, at no
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expense to the Employee, business travel accident insurance coverage in an
amount equal to six (6) times Employee's base salary through either: (i) a
group policy covering similarly situated employees, or (ii) a policy
specific to Employee, depending on the cost and availability of coverage.
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