Exhibit 10.6
AGREEMENT
Agreement made as of December 15, 2003, between The York Water
Company, a Pennsylvania corporation (the "Company"), and Vernon L. Bracey
("Employee").
WHEREAS, Employee is the Vice President - Customer Service of the
Company and devotes substantially all of his business time and efforts to the
Company's affairs;
WHEREAS, the Company recognizes that the departure or distraction of
key management personnel would be detrimental to the business of the Company;
and
WHEREAS, the Board of Directors of the Company has determined that
appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of key members of the Company's management to their
assigned duties without distraction;
WHEREAS, in consideration of Employee's employment with the Company
and his agreement not to compete with the Company as set forth in this
Agreement, the Company agrees that Employee shall receive the compensation set
forth in this Agreement against the adverse financial and career impact on
Employee if his employment with the Company is terminated under certain
circumstances; and
WHEREAS, the Company wishes to reward the dedication and loyalty of
Employee by providing for certain bonus payments to be made to Employee based
upon Employee's tenure, the Company agrees that Employee shall receive the
payments set forth in this Agreement upon the achievement of certain temporal
milestones.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. For all purposes of this Agreement, the following terms
shall have the meanings specified in this Section unless the context clearly
otherwise requires:
(a) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act.
(b) A Person shall be deemed the "Beneficial Owner" of any
securities: (i) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such right
is exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the "Beneficial
Owner" of securities tendered pursuant to a tender or exchange offer made by
such Person or any of such Person's Affiliates or Associates until such tendered
securities are accepted for payment, purchase or exchange; (ii) that such Person
or any of such Person's Affiliates or Associates, directly or indirectly, has
the right to vote or dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange
Act), including without limitation, pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided, however, that a Person shall
not be deemed the "Beneficial Owner" of any security under this clause (ii) as a
result of an oral or written agreement, arrangement
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or understanding to vote such security if such agreement, arrangement or
understanding (A) arises solely from a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to, and in accordance with,
the applicable provisions of the General Rules and Regulations under the
Exchange Act, and (B) is not then reportable by such Person on Schedule 13D
under the Exchange Act (or any comparable or successor report); or (iii) that
are beneficially owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or any of such Person's
Affiliates or Associates) has any agreement, arrangement or understanding
(whether or not in writing) for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as described in the proviso to clause (ii)
above) or disposing of any voting securities of the Company; provided, however,
that nothing in this Section 1(b) shall cause a Person engaged in business as an
underwriter of securities to be the "Beneficial Owner" of any securities
acquired through such Person's participation in good faith in a firm commitment
underwriting until the expiration of 40 days after the date of such acquisition.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Business Combination" shall mean a reorganization, merger or
consolidation of the Company.
(e) "Cause" shall mean (i) misappropriation of funds or any act of
common law fraud, (ii) habitual insobriety or substance abuse, (iii) conviction
of a felony or any crime involving moral turpitude, (iv) willful misconduct or
gross negligence by Employee in the performance of his duties, (v) the willful
failure of Employee to perform
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a material function of Employee's duties hereunder, or (vi) Employee engaging in
a conflict of interest or other breach of fiduciary duty.
(f) "Change of Control" shall mean:
(i) Any Person (except the Employee, his Affiliates and
Associates, the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such employee benefit plan), together with all Affiliates and Associates
of such Person, becomes the Beneficial Owner in the aggregate of 50 percent or
more of either (A) the Outstanding Company Common Stock or (B) the Company
Voting Securities , in either case unless a majority of the members of the Board
in office immediately prior to such acquisition determine within five business
days of the receipt of actual notice of such acquisition that the circumstances
do not warrant the implementation of the provisions of this Agreement;
(ii) The Incumbent Board ceases for any reason to constitute
at least a majority of the Board, provided that any individual becoming a
director subsequent to the beginning of such period whose election or nomination
for election by the Company's shareholders was approved by a vote of at least a
majority of the directors then constituting the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the Directors of the Company (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act);
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(iii) Consummation by the Company of a Business Combination,
in each case, with respect to which all or substantially all of the individuals
and entities who were the respective Beneficial Owners of the Outstanding
Company Common Stock and Company Voting Securities immediately prior to such
Business Combination are not, following such Business Combination, Beneficial
Owners, directly or indirectly, of more than 50 percent of, respectively, the
then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business
Combination in substantially the same proportion as their ownership immediately
prior to such Business Combination of the Outstanding Company Common Stock and
Company Voting Securities, as the case may be , in any such case unless a
majority of the members of the Board in office immediately prior to such
Business Combination determines at the time of such Business Combination that
the circumstances do not warrant the implementation of the provisions of this
Agreement; or
(iv) (A) Consummation of a complete liquidation or dissolution
of the Company or (B) sale or other disposition of all or substantially all of
the assets of the Company other than to a corporation with respect to which,
following such sale or disposition, individuals and entities that are the
Beneficial Owners of more than 50 percent of, respectively, the Outstanding
Company Common Stock and the Company Voting Securities are substantially the
same as the individuals and entities who were the Beneficial Owners,
respectively, of the Outstanding Company Common Stock and Company Voting
Securities immediately prior to such sale or disposition in substantially
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the same proportion as their ownership of the Outstanding Company Common Stock
and Company Voting Securities, as the case may be, immediately prior to such
sale or disposition, in any such case unless a majority of the members of the
Incumbent Board in office immediately prior to such sale or disposition
determines at the time of such sale or disposition that the circumstances do not
warrant the implementation of the provisions of this Agreement.
(g) "Company Voting Securities" shall mean the combined voting power
of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors.
(h) "Compensation" shall mean the sum of base compensation and
annual bonus compensation payable in cash to the Employee during the twelve
months preceding any date of determination under this Agreement.
(i) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(j) "Good Reason Termination" shall mean a Termination of Employment
initiated by Employee following a Change in Control and the occurrence of one or
more of the following events:
(i) any failure of the Company to comply with or satisfy any
of the material terms of this Agreement;
(ii) any significant reduction by the Company of the
authority, duties or responsibilities of Employee's principal assignment with
the Company or any reduction in Employee's base compensation or annual bonus
compensation opportunity;
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(iii) any removal by the Company of Employee from the
employment grade or officer positions which Employee holds as of the effective
date hereof except in connection with promotions to higher office; or
(iv) a transfer of Employee, without his express written
consent, to a location that is more than 50 miles from his principal place of
business immediately preceding the Change of Control.
(k) "Incumbent Board" shall mean those individuals who, as of any
date of determination under the Agreement, are individuals who have constituted
the Board during the preceding 12-month period.
(l) "Outstanding Company Common Stock" shall mean the then
outstanding shares of common stock of the Company.
(m) "Person" shall mean any natural person, business trust,
corporation, partnership, limited liability company, joint stock company,
proprietorship, association, trust, joint venture, unincorporated association or
any other legal entity of whatever nature.
(n) "Phase Out Date" shall mean the first day of the calendar month
coincident with or next following Employee's 65th birthday.
(o) "Subsidiary" shall mean any corporation in which the Company,
directly or indirectly, owns at least a 50 percent interest or an unincorporated
entity of which the Company, directly or indirectly, owns at least 50 percent of
the profits or capital interests.
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(p) "Termination Date" shall mean the date of receipt of the Notice
of Termination described in Section 2 hereof or any later date specified
therein, as the case may be.
(q) "Termination of Employment" shall mean the termination of
Employee's actual employment relationship with the Company.
2. Notice of Termination. Any Termination of Employment shall be
communicated by a Notice of Termination in accordance with Section 15 hereof.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which, in the case of a Good Reason Termination by Employee (a) indicates the
specific reasons for the termination, (b) briefly summarizes the facts and
circumstances deemed to provide a basis for termination of Employee's
employment, and (c) if the Termination Date is other than the date of receipt of
such notice, specifies the Termination Date (which date shall not be more than
15 days after the giving of such notice).
3. Severance Compensation upon Termination; Bonus Payments upon Certain
Circumstances.
(a) In the event of (i) an involuntary Termination of Employment for
any reason other than Cause or (ii) a Good Reason Termination, in either case
within one year following a Change of Control or six months prior to a Change of
Control, the Company shall pay to Employee, within 15 days after the later of
the Termination Date or the date of the Change of Control, and upon the
execution of a release in form and substance reasonably satisfactory to the
Chairman of the Board, a single sum in cash equal to one-half (50 percent)
multiplied by Employee's Compensation, subject to customary employment taxes and
statutory deductions.
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(b) In the event of Employee's voluntary Termination of Employment
for any reason other a Good Reason Termination, within (i) three months after a
Change of Control, the Employee shall not be entitled to any payment; or (ii)
three months and one day to 12 months following a Change of Control, the Company
shall pay to Employee, within 15 days after the Termination Date and upon the
execution of a release in form and substance reasonably satisfactory to the
Chairman of the Board, a single sum in cash equal to one-fourth (25 percent) of
Employee's Compensation, subject to customary employment taxes and statutory
deductions.
(c) If on the date 12 months and one day following a Change of
Control there has not been a Termination of Employment, Company shall pay to
Employee, within 15 days after such date, a single sum in cash equal to one-half
(50 percent) multiplied by Employee's Compensation, subject to customary
employment taxes and statutory deductions.
(d) Notwithstanding paragraph (a) or (b) above and without regard to
the fact that payment is to be made in a single sum, until the earlier of the
Phase Out Date or one year after the Termination Date, Employee shall be
entitled to continued coverage under the Company's medical, dental and other
welfare benefit plans at the same level of coverage (and required employee
contributions, if any) as Employee was receiving at the time of his Termination
Date, subject to the Company's right to make changes to such plans for all of
its executive level employees generally and further subject to the Company's
right to provide Employee with cash, on a tax equivalent basis, such that
Employee is able to purchase comparable coverage on his own; provided, however,
that this obligation of the Company shall cease upon Employee's obtaining new
employment
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that provides Employee with eligibility for comparable medical benefits without
a pre-existing condition limitation; and, provided, further, that such extended
coverage shall be in addition to, and not as a substitute for, Employee's COBRA
rights which shall apply at the end of such extended coverage. All other benefit
plan coverages, retirement benefit accruals and fringe benefit eligibility shall
cease on the Termination Date subject to applicable rights under ERISA and
COBRA.
4. Other Payments. The payment due under Section 3 hereof shall be in
addition to and not in lieu of any payments or benefits accrued for Employee
through the Termination Date under any plan, policy or program of the Company,
including the Supplemental Retirement Plan and the Deferred Compensation
Agreement, except that no payments shall be due to Employee under any severance
pay plan for the Company's employees.
5. Enforcement.
(a) In the event that the Company shall fail or refuse to make
payment of any amounts due Employee under Sections 3 and 4 hereof within the
respective time periods provided therein, the Company shall pay to an escrow
agent, who shall invest such sum with interest to be paid to the prevailing
party, any amount remaining unpaid under Section 3 or 4. In such event, the
parties shall engage in arbitration in the City of Harrisburg, Pennsylvania, in
accordance with the National Rules for the Resolution of Employment Disputes
then in effect of the American Arbitration Association, before a panel of three
arbitrators, one of whom shall be selected by the Company and one by Employee,
and the third of whom shall be selected by the other two arbitrators. Any award
entered by the arbitrators shall be final, binding and nonappealable and
judgment
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may be entered thereon by either party in accordance with applicable law in any
court of competent jurisdiction. This arbitration provision shall be
specifically enforceable. The arbitrators shall have no authority to modify any
provision of this Agreement or to award a remedy for a dispute involving this
Agreement other than a benefit specifically provided under or by virtue of the
Agreement.
(b) The Company shall pay Employee on demand the amount necessary to
reimburse Employee in full for all reasonable expenses (including reasonable
attorneys' fees and expenses) incurred by Employee in enforcing any of the
obligations of the Company under this Agreement subject to Employee's duty to
repay such sums to the Company in the event that the Employee does not prevail
on any material issue which is the subject of such arbitration. If Employee
prevails on at least one material issue which is the subject of such
arbitration, the Company shall be responsible for all of the fees of the
American Arbitration Association and the arbitrators and any expenses relating
to the conduct of the arbitration (including Employee's reasonable attorneys'
fees and expenses). Otherwise, each party shall be responsible for his or its
own expenses relating to the conduct of the arbitration (including reasonable
attorneys' fees and expenses) and shall equally share the fees of the American
Arbitration Association.
6. No Mitigation. Employee shall not be required to mitigate the amount of
any payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit provided
for herein be reduced by any compensation earned by other employment or
otherwise.
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7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit Employee's continuing or future participation in or rights under any
benefit, bonus, incentive or other plan or program provided by the Company or
any of its Subsidiaries or Affiliates and for which Employee may qualify, from
the date hereof through the Termination Date.
8. No Set-Off. The Company's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against Employee or others.
9. Taxes. Any payment required under this Agreement shall be subject to
all requirements of law with regard to the withholding of taxes, filing, making
of reports and the like, and the Company shall use its best efforts to satisfy
promptly all such requirements.
10. Confidential Information. Employee recognizes and acknowledges that,
by reason of his employment by and service to the Company, he has had and will
continue to have access to confidential information of the Company, including,
without limitation, information and knowledge pertaining to products and
services offered, innovations, designs, ideas, plans, trade secrets, proprietary
information, distribution and sales methods and systems, sales and profit
figures, customer and client lists, and relationships between the Company and
its Subsidiaries and Affiliates and other distributors, customers, clients,
suppliers and others who have business dealings with the Company ("Confidential
Information"). Employee acknowledges that such Confidential
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Information is a valuable and unique asset and covenants that he will not,
either during or after his employment by the Company, disclose or use any such
Confidential Information to any person for any reason whatsoever without the
prior written authorization of the Board, unless such information is in the
public domain through no fault of Employee or except as may be required by law.
11. Non-Competition.
(a) During his employment by the Company and for a period of one
year thereafter, Employee will not, unless acting with the prior written consent
of the Board, directly or indirectly, own, manage, operate, join, control,
finance or participate in the ownership, management, operation, control or
financing of, or be connected as an officer, director, employee, partner,
principal, agent, representative, consultant or otherwise with or use or permit
his name to be used in connection with, any business or enterprise engaged in by
the Company or any of its Affiliates, either during his employment by the
Company or on the Termination Date, as applicable, in the geographic area
comprising the Company's franchised service territory (the "Geographic Area").
It is recognized by Employee that the business of the Company and its Affiliates
and Employee's connection therewith is or will be involved in activity
throughout the Geographic Area, and that more limited geographical limitations
on this non-competition covenant would not be appropriate. Employee also shall
not, directly or indirectly, during such one year period (a) solicit or attempt
to convert any account or customer of the Company or its Affiliates existing on
the Termination Date to another supplier, or (b) following Employee's
employment, solicit or attempt to hire any then employee of the Company or its
Affiliates.
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(b) The foregoing restriction shall not be construed to prohibit the
ownership by Employee of less than 5 percent of any class of securities of any
corporation which is engaged in any of the foregoing businesses having a class
of securities registered pursuant to the Exchange Act, provided that such
ownership represents a passive investment and that neither Employee nor any
group of persons including Employee, either directly or indirectly, manages or
exercises control of any such corporation, guarantees any of its financial
obligations, otherwise takes any part in its business, other than exercising his
rights as a shareholder, or seeks to do any of the foregoing.
12. Equitable Relief.
(a) Employee acknowledges that the restrictions contained in
Sections 10 and 11 hereof are reasonable and necessary to protect the legitimate
interests of the Company and its Affiliates, that the Company would not have
entered into this Agreement in the absence of such restrictions, and that any
violation of any provision of those Sections will result in irreparable injury
to the Company. Employee represents that his experience and capabilities are
such that the restrictions contained in Section 11 hereof will not prevent
Employee from obtaining employment or otherwise earning a living at the same
general level of economic benefit as anticipated by this Agreement. Employee
further represents and acknowledges that (i) he has been advised by the Company
to consult his own legal counsel in respect of this Agreement, and (ii) that he
has had full opportunity, prior to execution of this Agreement, to review
thoroughly this Agreement and understands its terms and conditions.
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(b) Employee agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of Sections 10 or 11 hereof, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled. In the event that any of the provisions of
Sections 10 or 11 hereof should ever be adjudicated to exceed the time,
geographic, service, or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, service, or other limitations permitted by
applicable law.
(c) Employee irrevocably and unconditionally (i) agrees that any
suit, action or other legal proceeding arising out of Section 10 or 11 hereof,
including, without limitation, any action commenced by the Company for
preliminary and permanent injunctive relief or other equitable relief, may be
brought in the United States District Court for the Middle District of
Pennsylvania, or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in York County, Pennsylvania,
(ii) consents to the non-exclusive jurisdiction of any such court in any such
suit, action or proceeding, and (iii) waives any objection which Employee may
have to the laying of venue of any such suit, action or proceeding in any such
court. Employee also irrevocably and unconditionally consents to the service of
any process, pleadings, notices or other papers in a manner permitted by the
notice provisions of Section 15 hereof.
(d) Employee agrees that he will provide, and that the Company may
similarly provide, a copy of Sections 10 and 11 hereof to any business or
enterprise (i)
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which he may directly or indirectly own, manage, operate, finance, join, control
or participate in the ownership, management, operation, financing, control or
control of, or (ii) with which he may be connected as an officer, director,
employee, partner, principal, agent, representative, consultant or otherwise, or
in connection with which he may use or permit his name to be used; provided,
however, that this provision shall not apply in respect of Section 12 hereof
after expiration of the time period set forth therein.
13. Term of Agreement. The term of this Agreement shall be for five years
commencing on the date hereof and shall automatically be renewed for additional
periods of one year until the Company notifies Employee in writing, at least 90
days in advance of expiration, that this Agreement will not be renewed. If any
notice of non-renewal occurs within two years after a Change of Control, such
notice shall constitute an involuntary Termination of Employment for purposes of
Section 3 above. Notwithstanding anything herein to the contrary, this Agreement
(other than the provisions of Sections 10 through 11 hereof) shall terminate on
the Phase-Out Date or if the employment of Employee by the Company shall
terminate for any reason other than as provided herein.
14. Successor Company. The Company shall require any successor or
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to Employee, to
acknowledge expressly that this Agreement is binding upon and enforceable
against the Company in accordance with the terms hereof, and to become jointly
and severally obligated with the Company to perform this Agreement in the same
manner and to the same extent that the Company would be
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required to perform if no such succession or successions had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement. As used in this
Agreement, the Company shall mean the Company as herein defined and any such
successor or successors to its business and/or assets, jointly and severally.
15. Notice. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in writing
and shall be delivered personally or mailed by registered or certified mail,
return receipt requested, or by overnight express courier service, as follows:
If to the Company, to:
The York Water Company
130 East Market Street
York, PA 17405-7089
Attention: Chairman of the Board
If to Employee, to:
Vernon L. Bracey
P.O. Box 187
York, PA 17405-0187
or to such other names or addresses as the Company or Employee, as the case may
be, shall designate by notice to the other party hereto in the manner specified
in this Section. Any such notice shall be deemed delivered and effective when
received in the case of personal delivery, five days after deposit, postage
prepaid, with the U.S. Postal Service in the case of registered or certified
mail, or on the next business day in the case of overnight express courier
service.
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16. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the Commonwealth of Pennsylvania without giving effect to any
conflict of laws provisions.
17. Contents of Agreement, Amendment and Assignment.
(a) This Agreement supersedes all prior agreements, sets forth the
entire understanding between the parties hereto with respect to the subject
matter hereof and cannot be changed, modified, extended or terminated except
upon written amendment executed by Employee and the Company and only if approved
by the Board. The provisions of this Agreement may provide for payments to
Employee under certain compensation or bonus plans under circumstances where
such plans would not provide for payment thereof. It is the specific intention
of the parties that the provisions of this Agreement shall supersede any
provisions to the contrary in such plans, and such plans shall be deemed to have
been amended to correspond with this Agreement without further action by the
Company.
(b) Nothing in this Agreement shall be construed as giving Employee
any right to be retained in the employ of the Company.
(c) All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, representatives, successors and assigns of the parties hereto, except
that the duties and responsibilities of Employee and the Company hereunder shall
not be assignable in whole or in part.
18. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable,
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such invalidity or unenforceability shall not affect any other provisions or
applications of this Agreement which can be given effect without the invalid or
unenforceable provision or application.
19. Remedies Cumulative; No Waiver. No right conferred upon Employee by
this Agreement is intended to be exclusive of any other right or remedy, and
each and every such right or remedy shall be cumulative and shall be in addition
to any other right or remedy given hereunder or now or hereafter existing at law
or in equity. No delay or omission by Employee in exercising any right, remedy
or power hereunder or existing at law or in equity shall be construed as a
waiver thereof.
20. Miscellaneous. All section headings are for convenience only. This
Agreement may be executed in several counterparts, each of which is an original.
It shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
21. Employee's Acknowledgment. By executing this Agreement as of the date
first above written, Employee acknowledges that he has no grounds for asserting
that a Good Reason Termination exists as of that date and, therefore, that no
obligation under Section 3 exists at the current time.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first above written.
THE YORK WATER COMPANY
By:/s/ Jeffrey S. Osman
- ---------------------- ----------------------------------
Witness President and Chief Executive Officer
/s/ Vernon L. Bracey
- ---------------------- -------------------------------------
Witness Vernon L. Bracey
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