Exhibit 10.23
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PARAGON TECHNOLOGIES, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT is
made as of the 28th day of August, 2002 by and between Leon C. Kirschner, a
resident of Grand Rapids, Michigan (the "Employee"), and Paragon
Technologies, Inc. (formerly SI Handling Systems, Inc.), a corporation
organized and existing under the laws of the Commonwealth of Pennsylvania (the
"Company").
WHEREAS, the Company is engaged in the business of designing,
selling, installing and servicing technologies and integrated automated material
handling systems for industrial, warehousing and distribution customers (the
"Business").
WHEREAS, the Company and the Employee are parties to that
certain Executive Employment Agreement made as of the 7th day of August, 1999
(the "Original Agreement).
WHEREAS, the Company desires to continue to employ the
Employee and the Employee desires to continue to be employed by the Company,
upon the amended and restated terms and conditions hereinafter set forth.
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 the Employee and
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the Employee hereby accepts employment with the Company, as an at will employee,
for a period commencing on October 1, 2002 (the "Commencement Date") and
continuing until the termination of this Agreement in accordance with the
provisions of Section 7 hereof (the "Term"), to hold the office of President of
Ermanco during the Term from and after the Commencement Date (such office,
referred to herein as the "Position").
2. Duties. During the Term, the 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 the Position. Subject to the oversight of the President and
Chief Executive Officer, the Employee shall have such duties and
responsibilities as may be assigned to him from time to time by the President
and Chief Executive Officer. The Employee shall report to the President and
Chief Executive Officer. The Employee shall perform his duties and
responsibilities hereunder at the Company's facility located in Spring Lake,
Michigan or at such other location in Western Michigan as may be established
from time to time by the President and Chief Executive Officer.
3. Compensation. The Company shall pay the Employee, and the
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Employee hereby agrees to accept, as compensation for all services to be
rendered to the Company and for the Employee's intellectual property covenants
and assignments and covenant not to compete, as provided in Sections 5 and 6
hereof, the compensation set forth in this Section 3.
3.1 Salary. Beginning on the Commencement Date, the Company
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shall pay the Employee a base salary at the weekly rate of Five Thousand Two
Hundred Thirty-Seven Dollars ($5,237) (as the same may hereafter be adjusted,
the "Salary") during the term of this Agreement. The Salary shall be inclusive
of all applicable income, social security and other taxes and charges that are
required by law to be withheld by the Company (collectively, "Taxes") and shall
be paid and withheld in
accordance with the Company's normal payroll practices for its executive
employees from time to time in effect.
3.2 Bonus. The Employee shall be eligible to participate in
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the Company's Officer Incentive Plan in effect for a particular fiscal year
which is based on the achievement of earnings targets and other financial
targets as defined for such fiscal year.
3.3 Equity Participation.
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(a) Incentive Stock Options. The Employee may be
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granted "Incentive Stock Options" (as such term is defined in the Company's 1997
Equity Compensation Plan, as amended from time to time (the "Equity Compensation
Plan")) to purchase shares of Common Stock under and subject to the terms of the
Equity Compensation Plan, which shall vest at a rate of twenty five percent
(25%) per year on each of the first four (4) anniversaries of the Grant Date;
provided that as an express condition of receipt of such Incentive Stock
Options, the Employee shall enter into and agree to be bound by the terms of the
standard "Grant Instrument" (as such term is defined in the Equity Compensation
Plan) applicable to the issuance of Incentive Stock Options under the Equity
Compensation Plan.
(b) Vesting. In the event of a "Change of Control"
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(as such term is defined in the Equity Compensation Plan), all rights to acquire
Common Stock pursuant to the Grant of Incentive Stock Options described in
Section 3.3(a) hereof shall fully accelerate and be immediately vested and
exercisable; provided that, in the event such acceleration and vesting would
make the Change of Control ineligible for pooling of interests accounting
treatment, in lieu of such acceleration and vesting, the Company shall make a
payment to the Employee in an amount equal to the benefit that would have inured
to the Employee if such acceleration and vesting had occurred so long as such
payment would not make the Change of Control ineligible for pooling of interests
accounting treatment or otherwise impose adverse tax consequences on the
Company. In no event shall any right to acquire Common Stock pursuant to the
Grant Incentive Stock Options described in Section 3.3(a) hereof vest upon or
following the termination of the Employee's employment with the Company, except
as provided in the Equity Compensation Plan (as amended from time to time,
including, without limitation, with respect to the vesting of restricted stock
or incentive stock options in event of the death or disability of an employee of
the Company) or the applicable Grant Instrument.
3.4 Annual Compensation Review. The President and Chief
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Executive Officer shall review the Employee's compensation annually which review
shall include, without limitation, an evaluation of the Employee's contribution
to the Company's annual financial performance, including pre-tax earnings,
effective management of the Company's operations, and backlog adequacy.
3.5 Fringe Benefits. During the Term, the Employee shall be
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entitled to participate in standard management benefits programs of the Company,
including, without limitation, the Company's standard program with respect to
automobile benefits, as amended from time to time (the "Benefits"). Employee
shall be entitled to four (4) weeks paid vacation per year.
3.6 Reimbursement of Expenses. During the course of
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employment, the Employee shall be reimbursed for items of travel, food and
lodging and miscellaneous expenses reasonably incurred by him on behalf of the
Company, provided that such expenses are incurred, documented and submitted to
the Company, all in accordance with the reimbursement policies of the Company as
in effect from time to time.
4. Confidentiality. The Employee recognizes and acknowledges that
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the Proprietary Information (as hereinafter defined) is a valuable, special and
unique asset of the Company. As a result, both during the Term and thereafter,
the Employee shall not, without the prior written consent
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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 (the "Proprietary Information") revealed, obtained or
developed in the course of his employment with the Company. Proprietary
Information shall include, but shall not be limited to the intangible personal
property described in Section 5(b) hereof and, in addition, technical
information, including research design, results, techniques and processes;
apparatus and equipment design; and computer software; technical management
information, including project proposals, research plans, status reports,
performance objectives and criteria, and analyses of areas for business
development; and business information, including project, financial, accounting
and personnel information, business strategies, plans and forecasts, customer
lists, customer information and sales and marketing plans, efforts, information
and data. In addition, "Proprietary Information" shall include all information
and materials received by the Company or the Employee from a third party subject
to an obligation of confidentiality and/or non-disclosure. Nothing contained
herein shall restrict the Employee's ability to make such disclosures during the
course of the employment as may be necessary or appropriate to the effective and
efficient discharge of the duties required by or appropriate for the Position or
as such disclosures may be required by law or by a governmental body or court.
Furthermore, nothing contained herein shall restrict the 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 the Employee's breach of this Section 4. Failure by the
Company to mark any of the Proprietary Information as confidential or
proprietary shall not affect its status as Proprietary Information under the
terms of this Agreement.
5. 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, the 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 the 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. The 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 the 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 the duties; and upon the
termination of his employment with the Company, he shall return to the Company
all originals and copies of the foregoing then in his possession or under his
control, whether prepared by the Employee or by others.
(b) (i) The Employee acknowledges that all right, title
and interest in and to any and all writings, documents, inventions, discoveries,
ideas, developments, information, computer programs or instructions (whether in
source code, object code, or any other form), algorithms, formulae, plans,
memoranda, tests, research, designs, innovations, systems, analyses,
specifications, models, data, diagrams, flow charts, and/or techniques (whether
patentable or non-patentable or whether reduced to written or electronic form or
otherwise) relating to the Business or any other business in which the Company
or any of the Company's subsidiaries or affiliates is engaged during the Term
that the Employee creates, makes, conceives, discovers or develops, either
solely or jointly with any other person, at any time during the Term, during
working hours or using any property or facility of the Company, and whether upon
the request or suggestion of the Company or otherwise, (collectively,
"Intellectual Work Product") shall be the sole and exclusive property of the
Company. The Employee
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shall promptly disclose to the Company all Intellectual Work Product, and the
Employee shall have no claim for additional compensation for the Intellectual
Work Product.
(ii) The Employee acknowledges that all the
Intellectual Work Product that is copyrightable shall be considered a work made
for hire under United States Copyright Law. To the extent that any copyrightable
Intellectual Work Product may not be considered a work made for hire under the
applicable provisions of the United States Copyright Law, or to the extent that,
notwithstanding the foregoing provisions, the Employee may retain an interest in
any Intellectual Work Product, 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 Work Product 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) The Employee shall reveal promptly all
information relating to any Intellectual Work Product to the Board of Directors
of the Company, cooperate with the Company and execute such documents as may be
necessary or appropriate (A) in the event that the Company desires to seek
copyright, patent or trademark protection, or other analogous protection,
thereafter relating to the Intellectual Work Product, and when such protection
is obtained, renew and restore the same, or (B) to defend any opposition
proceedings in respect of obtaining and maintaining such copyright, patent or
trademark protection, or other analogous protection.
6. Covenant not to Compete. The Employee shall not, during the
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Term (except in the performance of the Employee's duties hereunder) and for a
period of two (2) years immediately following the termination of the Employee's
employment hereunder do any of the following directly or indirectly without the
prior written consent of the Board of Directors in its sole discretion:
(a) engage or participate, directly or indirectly,
in any business activity substantially competitive with the Business, as
engaged in by the Company at the time enforcement of this provision is sought;
(b) become interested (as owner, stockholder,
lender, partner, co-venturer, director, officer, employee, agent, consultant or
otherwise) in any person, firm, corporation, association or other entity engaged
in any business that is competitive with the Business, or become interested in
(as owner, stockholder, lender, partner, co-venturer, director, officer,
employee, agent, consultant or otherwise) any portion of the business of any
person, firm, corporation, association or other entity where such portion of
such business is competitive with the Business, as engaged in by the Company at
the time enforcement of this provision is sought, (notwithstanding the
foregoing, the Employee may hold not more than five percent (5%) of the
outstanding securities of any class of any publicly-traded securities of a
company that is engaged in the Business);
(c) engage, either directly or indirectly, in any
business activity substantially competitive with the Business, as engaged in by
the Company at the time enforcement of this provision is sought, with any (A)
customer with whom the Company shall have dealt at any time during the one (1)
year period immediately preceding the termination of the Employee's employment
hereunder, or (B) corporate partner, collaborator, independent contractor or
supplier with whom the Company shall have dealt at any time during the one (1)
year period immediately preceding the termination of the Employee's employment
hereunder;
(d) influence or attempt to influence any then
current or prospective supplier, customer, corporate partner, collaborator, or
independent contractor of the Company to terminate or modify any written or oral
agreement or course of dealing with the Company; or
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(e) make any agreement or contract with any person
with the purpose of influencing or attempting to influence any person either (i)
to terminate or modify an employment, consulting, agency, distributorship or
other arrangement with the Company, or (ii) to 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 as an employee, consultant, agent or
distributor of the Company at any time during the two (2) year period
immediately preceding the termination of the Employee's employment hereunder.
The Employee acknowledges that he has carefully read and
considered the provisions of this Section 6. The Employee acknowledges that the
foregoing restrictions may limit his ability to earn a livelihood in a business
similar to the Business, but he nevertheless believes that he has received and
will receive sufficient consideration and other benefits in connection with the
payment by the Company of the compensation set forth in Sections 3 and 7 hereof
to justify such restrictions, which restrictions the Employee does not believe
would prevent him from earning a living in businesses that are not competitive
with the Business and without otherwise violating the restrictions set forth
herein.
7. Termination. Upon termination of the Employee's employment
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hereunder, the Employee shall be entitled only to such compensation and benefits
as described in this Section 7.
7.1 Termination by the Company Without Cause.
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(a) Notwithstanding anything to the contrary set
forth herein, the Company shall have the right to terminate the Employee's
employment hereunder at any time, for any reason or for no reason, without
cause, effective upon the date designated by the Company upon written notice to
the Employee.
(b) In the event of a termination of the Employee's
employment hereunder (A) pursuant to Section 7.1(a) hereof prior to the
Expiration Date or (B) pursuant to a Constructive Termination (as defined in
Section 7.4(b) hereof), the Employee shall be entitled to receive all accrued
but unpaid (as of the effective date of such termination) Salary and the
severance payments in the manner set forth in Section 7.1(c) hereof; provided
that the Employee has complied with all of his obligations under this Agreement
and continues to comply with all of his surviving obligations hereunder listed
in Section 9 hereof. Except as specifically set forth in this Section 7.1, all
Salary and Benefits shall cease at the time of such termination, except as
required under applicable law and the Company shall have no further liability or
obligation hereunder by reason of or subsequent to such termination.
(c) In the event of the termination of the
Employee's employment hereunder (A) pursuant to Section 7.1(a) hereof prior to
the Expiration Date, or (B) pursuant to a Constructive Termination (as defined
in Section 7.4(b) hereof), the Employee shall be entitled, as severance pay, for
a period of one year following effective date of termination, to continue to
receive, his Salary and (to the extent permitted by the terms of the applicable
insurance policy then in effect) health insurance coverage, each as in effect as
of the effective date of termination, provided that if the continuation of such
health insurance coverage is not permitted by the terms of such policy, the
Company shall reimburse the Employee in an amount equal to the cost to the
Employee of purchasing such health insurance coverage under COBRA (29 U.S.C.
ss.ss. 1161-1169) for a period of one year following effective date of
termination.
7.2 Termination for Cause.
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(a) The Company shall have the right to terminate
the Employee's employment hereunder at any time for "cause" upon written notice
to the Employee. For purposes of this Agreement, "cause" shall mean:
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(i) any material breach by the Employee of
any material obligations under this Agreement, which breach has not been cured
within thirty (30) days of written notice by the Company to the Employee;
(ii) conduct of the Employee involving
disloyalty to the Company or willful misconduct with respect to the Company,
including without limitation fraud, embezzlement, theft or proven dishonesty in
the course of the employment, which conduct or willful misconduct, if capable of
cure, has not been cured within thirty (30) days of written notice by the
Company to the Employee; or
(iii) conviction of a felony or other criminal
act, provided that in the case of such other criminal act the Employee is
sentenced to a term of more than one (1) year in prison.
(b) In the event of a termination of the Employee's
employment hereunder pursuant to Section 7.2(a) hereof, the Employee shall be
entitled to receive all accrued but unpaid (as of the effective date of such
termination) Salary and such other benefits as are normally provided by the
Company upon the death of an employee; provided that the Employee has complied
with all of his obligations under this Agreement. All Salary and Benefits shall
cease at the time of such termination, subject to the requirements of applicable
law, and, except as specifically set forth in this Section 7.2, the Company
shall have no further liability or obligation hereunder by reason of or
subsequent to such termination.
7.3 Termination by the Employee.
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(a) Voluntary Termination. Notwithstanding anything
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to the contrary set forth herein, the Employee shall have the right to terminate
the Employee's employment hereunder at any time, for any reason or for no reason
by giving the Company written notice of such termination no less than 180 days
prior to the effective date of such termination as set forth in such written
notice (the "Voluntary Termination Date"). In the event of a voluntary
termination by the Employee of his employment hereunder, the Employee will be
entitled to receive all accrued and unpaid (through the Voluntary Termination
Date) Salary; provided that the Employee has complied with all of his
obligations under this Agreement; and further provided that, upon receipt of
such written notice of termination from the Employee, the Company shall have the
right to accelerate the effective date of the Employee's termination to any date
prior to Voluntary Termination Date, in which event the Employee shall continue
to be entitled to receive his Salary and Benefits for the period through and
including the Voluntary Termination Date. Except as specifically set forth in
this Section 7.3(a) or as provided by applicable law, the Company shall have no
further liability or obligation to the Employee for compensation or benefits
hereunder by reason of or subsequent to such termination.
(b) Termination by Death. In the event that the
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Employee dies during the Term, the Employee's employment hereunder shall be
terminated thereby and the Company shall pay to the Employee's executors, legal
representatives or administrators an amount equal to all accrued and unpaid (as
of the date of death) Salary and any such other benefits as are normally
provided by the Company upon the death of an employee; provided that the
Employee has complied with all of his obligations under this Agreement. Except
as specifically set forth in this Section 7.3(b) or as provided by applicable
law, the Company shall have no further liability or obligation hereunder to the
Employee's executors, legal representatives, administrators, heirs or assigns or
any other person claiming under or through him by reason of or subsequent to the
Employee's death.
7.4 Termination upon a Change of Control.
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(a) During the one (1) year period following a
Change of Control, in the event of the termination of the Employee's employment
hereunder pursuant to a Constructive
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Termination (as defined in Section 7.4(b) hereof), in lieu of the severance pay
described in Section 7.1(c) hereof, the Employee shall be entitled, as severance
pay, to (A) continue to receive his Salary for a period of eighteen (18) months,
subject to all applicable Taxes, calculated on the basis of the Salary in effect
on the date of termination and paid in the same manner as Salary was then paid
hereunder and (B) receive a lump sum payment in an amount equal to one and
one-half times the average of the Bonus paid to the Employee for the two (2)
fiscal years preceding the year in which the termination becomes effective,
subject to all applicable Taxes, which lump sum amount shall be payable to the
Employee within thirty (30) days following the date of termination.
(b) For purposes of this Section 7.4, "Constructive
Termination" shall mean the termination of the Employee's employment hereunder
by the Employee within one year of a Change of Control as a result of any of the
following: (i) the Employee is demoted; (ii) the Employee's duties hereunder are
materially altered; (iii) the Salary is reduced; or (iv) the Employee's primary
work location is changed to a location other than a location in Western
Michigan.
8. Representations, Warranties and Covenants of the Employee.
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(a) The Employee represents and warrants to the
Company that:
(i) to the best of the Employee's knowledge,
there are no restrictions, agreements or understandings whatsoever to which the
Employee is a party which would prevent or make unlawful the Employee's
execution of this Agreement or the Employee's employment hereunder, or which is
or would be inconsistent or in conflict with this Agreement or the Employee's
employment hereunder, or would prevent, limit or impair in any way the
performance by the Employee of the obligations hereunder; and
(ii) the Employee has disclosed to the
Company all restraints, confidentiality commitments or other employment
restrictions that he has with any other employer, person or entity.
(b) The Employee covenants that in connection with
his provision of services to the Company, he shall not breach any obligation
(legal, statutory, contractual or otherwise) to any former employer or other
person, including, but not limited to obligations relating to confidentiality
and proprietary rights.
9. Survival of Provisions. The provisions of this Agreement set
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forth in Sections 3.6, 4, 5, 6, 7, 8, 18 and 19 hereof shall survive the
termination of the Employee's employment hereunder.
10. Successors and Assigns. This Agreement shall inure to the
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benefit of and be binding upon the Company and the Employee and their respective
successors, executors, administrators, heirs and/or assigns; provided that the
Employee shall not make any assignment of this Agreement or any interest herein,
by operation of law or otherwise, without the prior written consent of the
Company.
11. Notice. Any notice hereunder by either party shall be given by
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personal delivery or by sending such notice by certified mail, return-receipt
requested, or telecopied, addressed or telecopied, as the case may be, to the
other party at its address set forth below or at such other address designated
by notice in the manner provided in this section. Such notice shall be deemed to
have been received upon the date of actual delivery if personally delivered or,
in the case of mailing, two (2) days after deposit with the U.S. mail, or, in
the case of facsimile transmission, when confirmed by the facsimile machine
report.
(a) if to the Company, to:
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Paragon Technologies, Inc.
600 Kuebler Road
P.O. Box 70
Easton, Pennsylvania 18040-9295
Attention: Chairman of the Board
Telecopier: (610) 253-0254
with a copy to:
Jeffrey P. Libson, Esquire
Pepper Hamilton LLP
1235 Westlakes Drive - Suite 400
Berwyn, Pennsylvania 19312-2401
Telecopier: (610) 640-7835
(b) if to the Employee, to:
Leon C. Kirschner
4855 N. Quail Crest Dr.
Grand Rapids, MI 49546
Telecopier: 616-954-9663
with a copy to:
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Telecopier:
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12. 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 merges and supersedes all prior and contemporaneous discussions,
agreements and understandings of every nature between the parties hereto
relating to the employment of the Employee with the Company. This Agreement may
not be changed or modified, except by an agreement in writing signed by each of
the parties hereto.
13. Waiver. The waiver of the breach of any term or provision of
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this Agreement shall not operate as or be construed to be a waiver of any other
or subsequent breach of this Agreement.
14. Governing Law. This Agreement shall be construed and enforced
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in accordance with the laws of the Commonwealth of Pennsylvania, without regard
to the principles of conflicts of laws of any jurisdiction.
15. Invalidity. If any provision of this Agreement shall be
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determined to be void, invalid, unenforceable or illegal for any reason, the
validity and enforceability of all of the remaining provisions hereof shall not
be affected thereby. If any particular provision of this Agreement shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such amendment to apply only to the operation of such provision
in the particular jurisdiction in which such adjudication is made; provided
that, if any provision contained in this Agreement shall be adjudicated to be
invalid or unenforceable because such provision is held to be excessively broad
as to duration, geographic scope, activity or subject, such provision shall be
deemed amended by limiting and reducing it so as to be valid and enforceable to
the maximum extent compatible with the applicable laws of such jurisdiction,
such
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amendment only to apply with respect to the operation of such provision in
the applicable jurisdiction in which the adjudication is made.
16. 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.
17. Number of Days. In computing the number of days for purposes of
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this Agreement, all days shall be counted, including Saturdays, Sundays and
legal holidays; provided that, if the final day of any time period falls on a
Saturday, Sunday or day which is a legal holiday in the Commonwealth of
Pennsylvania, then such final day shall be deemed to be the next day which is
not a Saturday, Sunday or legal holiday.
18. Specific Enforcement; Consent to Suit. The Employee acknowledges
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that the restrictions contained in Sections 4, 5 and 6 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. The Employee also acknowledges that any breach by him of
Sections 4, 5 or 6 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
Section 4, 5 or 6 hereof, assert the claim or defense that an adequate remedy at
law exists. In the event of such breach by the Employee, the Company shall have
the right to enforce the provisions of Section 4, 5 or 6 hereof 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. Any legal
proceeding to enforce the provisions of Section 4, 5 or 6 hereof shall be
instituted in the Court of Common Pleas of Northampton County, Pennsylvania, or
if such court does not have jurisdiction or will not accept jurisdiction, in any
state or federal court of general jurisdiction in the Commonwealth of
Pennsylvania, and, for such purpose, the Employee hereby consents to the
personal and exclusive jurisdiction of such court and hereby waives any
objection that the Employee may have to the laying of venue of any such
proceeding and any claim or defense of inconvenient forum. Notwithstanding the
foregoing to the contrary, the Company shall have the right to institute legal
proceedings to enforce the provisions of Section 4, 5 or 6 hereof in any court
with jurisdiction over the Employee. In any legal proceeding seeking to enforce
or interpret the terms of Section 4, 5 or 6 hereof, each party shall be
responsible for its own costs, expenses and disbursements, including attorneys'
fees.
19. Arbitration. Subject to the last sentence of this Section 19,
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if any dispute arises over the terms of this Agreement between the parties to
this Agreement, either the Employee or the Company shall submit the dispute to
binding arbitration within thirty (30) days after such dispute arises, to be
governed by the evidentiary and procedural rules of the American Arbitration
Association (Commercial Arbitration). The Employee and the Company shall
mutually select one (1) arbitrator within ten (10) days after a dispute is
submitted to arbitration. In the event that the parties do not agree on the
identity of the arbitrator within such period, the arbitrator shall be selected
by the American Arbitration Association. The arbitrator shall hold a hearing on
the dispute in Northampton County, Pennsylvania within thirty (30) days after
having been selected and shall issue a written opinion within fifteen (15) days
after the hearing. The arbitrator shall also decide on the allocation of the
costs of the arbitration to the respective parties, but the Employee and the
Company shall each be responsible for paying the fees of their own legal
counsel, if legal counsel is obtained. Either the Employee or the Company, or
both parties, may file the decision of the arbitrator as a final, binding and
unappealable judgment in a court of appropriate jurisdiction. Notwithstanding
the foregoing provisions of this Section 19 to the contrary, matters in which an
equitable remedy or injunctive relief is sought by a party, including but not
limited to the remedies referred to in Section 18 hereof, shall not be required
to be submitted to arbitration, if the party seeking such remedy or relief
objects thereto, but shall instead be subject to the provisions of Section 18
hereof.
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20. 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.
[one signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Executive
Employment Agreement to be executed the day and year first written above.
PARAGON TECHNOLOGIES, INC.
By: /s/ William R. Johnson
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William R. Johnson
President and Chief Executive Officer
/s/ Leon C. Kirschner
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Leon C. Kirschner