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EXHIBIT 10
EMPLOYMENT CONTINUATION AGREEMENT
THIS AGREEMENT is made effective for all purposes and in all respects
as of the 22nd day of March, 1999, by and between Tuscarora Incorporated, a
Pennsylvania corporation ("Employer"), and James H. Brakebill ("Employee"). This
Agreement shall replace and supersede any previous employment arrangements
between Employer and Employee.
WITNESSETH
WHEREAS, Employee is currently employed by Employer as Vice President
of Manufacturing Services; and
WHEREAS, Employee desires to leave his current position but to continue
employment with the Employer as a Senior Technical Advisor; and
WHEREAS, Employer desires to employ Employee as a Senior Technical
Advisor; and
WHEREAS, Employer and Employee wish to put into writing the terms and
conditions of this new employment arrangement;
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as
follows:
1. Employment. Effective as of any date designated by the Employee
between April 1, 1999 and September 1, 1999, Employee shall be employed by
Employer as a Senior Technical Advisor for the term described in paragraph 2
below, and in such capacity shall perform the duties described in paragraph 3
below.
2. Term. Subject to Section 5 hereof, the term of this Agreement shall
be three (3) years, beginning on the date selected by Employee in accordance
with paragraph 1 above.
3. Duties. (a) Employee shall consult on such technical matters as may
be requested by the Employer from time to time during the term of this
Agreement. Employee shall provide such services as follows:
(i) For a maximum of sixty-five (65) hours per month during the
first year of this Agreement;
(ii) for a maximum of fifty (50) hours per month during the second
year of this Agreement; and
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(iii) for a maximum of thirty (30) hours per month during the third
year of this Agreement.
(b) To the extent necessary to provide the services required by
subparagraph (a) above during the term of this Agreement, Employee shall devote
his full attention and best abilities to his duties hereunder, to give proper
time and attention to furthering Employer's business and to comply with all of
Employer's rules, regulations, bylaws and other applicable corporate documents.
Employee shall not, directly or indirectly, engage in any business or other
conduct during the term of this Agreement which would detract from Employee's
ability to apply his best efforts to the performance of his duties under this
Agreement.
4. Compensation and Benefits. During the term of Employee's employment
hereunder, Employer shall pay Employee the following salary, compensation and
benefits:
(a) Salary and Compensation. The Employer shall pay the employee the
following compensation:
(i) During the first year of the term of this Agreement, Employer
shall pay Employee a salary of $10,000 per month.
(ii) During the second year of the term of this Agreement, Employer
shall pay Employee a salary of $7,500 per month.
(iii) During the third year of the term of this Agreement, Employer
shall pay Employee a salary of $5,000 per month.
In the event the Employee works in any year more than twelve times the number of
hours required per month for that year (as specified in Paragraph 3), the
Employer shall pay the Employee an additional $150 for each hour in excess of
the annual required hours. Upon completion of the third year of the term of this
Agreement, Employee shall not be entitled to any further compensation under this
Agreement.
(b) Benefits. Employee shall be entitled to such benefits as any
full-time employee of Employer employed in the same capacity; provided, however,
that Employee shall not be eligible after Employer's 1999 fiscal year for either
(i) vacation or holiday pay or (ii) an incentive bonus.
(c) Expenses. The Employer shall reimburse the Employee for (or pay on
his behalf) all reasonable travel and
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out-of-pocket expenses incurred by the Employee in performing his duties under
this Agreement.
(d) Disability. Notwithstanding Paragraph (a) above, if, during the
term of this Agreement, Employee shall become eligible under either the
Employer's short-term or long-term disability program then in effect (due to a
disability or illness), the Employee shall be compensated in accordance with the
terms of the applicable disability program during the period of his incapacity
(not to exceed the then remaining term of this Agreement).
5. Termination. (a) If Employee dies during the term of this Agreement,
Employee's employment hereunder shall automatically terminate as of the date of
his death and all of Employer's obligations hereunder, other than any obligation
with respect to the payment of unpaid salary or benefits earned by Employee
prior to his death, shall terminate as of that date; Notwithstanding the
preceding sentence, if Employee terminates employment on account of his death,
(i) the payments required under Section 4(a) shall continue to be
paid to his spouse (if she is then living) for a period not to exceed the lesser
of (A) six (6) months or (B) the remaining term of this Agreement; and
(ii) during the salary continuation period specified in Paragraph
(a) (i) above, Employer shall pay the cost for Employee's spouse to continue
(under the "COBRA" continuation health coverage rules) any health coverage she
may have had on the date of Employee's death under an Employer-provided health
program. Upon completion of the salary continuation period, Employee's spouse
shall thereafter pay for the full cost of any continued health coverage to which
she may be entitled under COBRA or other applicable law.
(b) Employer may, by written notice to Employee, terminate Employee's
employment under this Agreement for cause at any time, in which event this
Agreement shall automatically terminate and Employee shall not be entitled to
any further payments hereunder. For purposes of this Agreement, "cause" shall
mean:
(i) dishonesty;
(ii) gross negligence or willful misconduct;
(iii) fraudulent or unethical conduct;
(iv) unreasonable neglect of or refusal to perform Employee's
duties under this Agreement;
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(v) violation of any agreements, covenants, terms or conditions
under this Agreement; and
(vi) conduct which has injured or would injure Employer's business
or reputation or otherwise adversely affect its interests.
(c) Employee may terminate his employment under this Agreement at any
time without cause. Written notice of such a termination shall be given to the
other party at least one hundred and twenty (120) days prior to the intended
date of termination. Upon Employee's termination of employment pursuant to this
Paragraph (c), all of Employer's obligations under this Agreement, other than
any obligation with respect to the payment of unpaid salary or benefits earned
by Employee prior to his date of termination, shall terminate.
(d) Any termination of Employee's employment hereunder shall not cause
Sections 6 and 7 of this Agreement to terminate, but, rather, such Sections 6
and 7 shall continue in full force and effect to the extent provided therein.
Employee shall return to Employer, upon Employee's termination of employment
with Employer, all reports, books, records, manuals, correspondence, computer
programs or other computer storage mediums in any form, papers, petty cash,
checks, credit cards, customer lists, lists of resumes of personnel and other
written, typed, printed or reproduced materials in whatever form or medium,
within his possession, custody or control, whether furnished by Employer or
prepared by Employee, which contain any information relating to the customers or
business of Employer or any of its subsidiaries or affiliates.
6. Non-Competition. (a) Employee agrees that during the term of this
Agreement and for one (1) year after the date on which his employment with
Employer terminates, he shall:
(i) not directly or indirectly have an interest or participate in
the ownership, management, operation or control of, or be employed by, act as a
consultant to, or otherwise be connected in any manner with, or have any direct
or indirect financial interest (including, without limitation, an interest as a
creditor) in, any business concern that does business in either North America or
Europe that is (A) directly or indirectly competitive with Employer's business,
(B) a supplier to Employer's business or to a business which is directly or
indirectly competitive with Employer's business or (C) is a customer of
Employer;
(ii) not directly or indirectly solicit the trade of, or trade
with, any customer, prospective customer, supplier,
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or prospective supplier of Employer for any business purpose other than for the
benefit of Employer; and
(iii) not solicit or induce, directly or indirectly, any employee
of Employer to leave the employ of Employer to work with Employee or any other
person or entity with whom Employee is or becomes affiliated.
(b) Employee acknowledges and agrees that the remedy at law for any
breach of the provisions of this Section 6 will be inadequate and that Employer
shall, in addition to any other relief available to it, be entitled to
injunctive relief and specific performance without the necessity of proving
actual damage. If a court of competent jurisdiction shall finally determine that
the restraints provided for in Section 6 hereof are too broad as to the
geographic area, activity, or time covered, such provisions shall be deemed
reformed to the maximum area, activity, or time covered permitted by applicable
law and shall be enforced as such.
(c) During the term of this Agreement, Employee shall give Employer
written notice of his acquisition of an interest or acceptance of employment
with a business concern which would be covered by Paragraph (a) (i) above but
for the fact that it is not doing business in North America or Europe at least
fourteen (14) days in advance of the date he is to acquire such interest or to
begin such employment.
7. Confidentiality. Employee recognizes, that in the course of
performing his services hereunder, Employer will disclose to him certain
confidential information relating to the business of Employer. Information shall
be considered "confidential" for purposes of this provision if it is private or
confidential in that it is not generally known or available to the public.
Employee will not, during or after the term of this Agreement, divulge, furnish
or make accessible to anyone any trade secrets, customer lists, computer
programs or confidential or privileged information of any kind with respect to
the customers or business operations of Employer or any of its subsidiaries or
affiliates, except as he may disclose in fulfillment of his duties under this
Agreement or as required by law.
8. Survival. The covenants contained in Sections 6 and 7 hereof shall
survive the termination of this Agreement for the period of time set forth in
those Sections 6 and 7.
9. Venue. Any judicial proceeding brought against any of the parties to
this Agreement on any dispute arising out of this Agreement or any matter
related hereto, shall be brought in the courts of the Commonwealth of
Pennsylvania or in any United States District Court in the Commonwealth of
Pennsylvania
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and, by execution and delivery of this Agreement, each of the parties to this
Agreement accepts the exclusive jurisdiction of such courts and agrees to be
bound by any judgment rendered thereby in connection with this Agreement.
10. Remedies. If Employer prevails in any court action or proceeding
for damages or injunctive relief relating to this Agreement, Employee agrees
that, in addition to any other relief available under law, Employer shall be
entitled to reasonable attorneys fees, costs and expenses of litigation incurred
by Employer in securing the relief granted by the court.
11. Withholding. Employer shall withhold, in accordance with its
established payroll practices and procedures, any amounts required to be
withheld under applicable law or regulation from any compensation or benefits
provided to Employee hereunder.
12. Notice. All notices, requests, demands and other communications
provided for in this Agreement shall be in writing and shall be personally
delivered or sent by certified or registered mail, return receipt requested, to
the parties at their addresses designated below (or at such other address as the
sender may be given by notice hereunder):
(a) To Employer:
c/o John P. O'Leary, Jr. or Brian C. Mullins
Tuscarora Incorporated
800 5th Avenue
New Brighton, PA 10566
(b) To Employee:
404 Canterbury Drive
Coraopolis, PA 15108
13. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of Employer and its successors and assigns. This
Agreement shall not be assignable by Employee unless Employer so agrees in
writing and any attempted assignment by Employee in violation of this covenant
shall be null and void.
14. Governing Law. The construction and interpretation of this
Agreement shall at all times and in all respects be governed by the laws of the
Commonwealth of Pennsylvania.
15. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or
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unenforceable for any reason, the remainder of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
16. Entire Agreement. This Agreement contains the entire agreement and
understanding by and between Employer and Employee with respect to Employee's
employment hereunder, and no representations, promises, agreements or
understandings, written or oral, not contained herein shall be of any force or
effect to the fullest extent permitted by law. No change or modification hereof
shall be valid or binding unless the same is in writing and signed by both of
the parties hereto.
17. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, Employee has duly executed this Agreement and
Employer has caused this Agreement to be executed by a duly authorized officer
thereof as of the day and year first above written.
TUSCARORA INCORPORATED
By: /s/ John P. O'Leary, Jr.
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Title: President & CEO
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ATTEST:
/s/ Brian C. Mullins
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/s/ JAMES H. BRAKEBILL
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JAMES H. BRAKEBILL
WITNESS:
/s/ Christina A. Starcher
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