Ingersoll & Rooney
301 Oxford Centre, 20th Floor
Pittsburgh, PA
15219
Attention:
Thomas S. Giotto
OR SUCH OTHER ADDRESS AS THE RECIPIENT PARTY TO WHOM NOTICE IS TO BE GIVEN MAY
HAVE FURNISHED TO THE OTHER PARTY IN WRITING IN ACCORDANCE HEREWITH. ANY SUCH
COMMUNICATION SHALL DEEMED TO HAVE BEEN DELIVERED AND RECEIVED (A) IN THE CASE
OF PERSONAL DELIVERY, ON THE DATE OF SUCH DELIVERY, (B) IN THE CASE OF DELIVERY
BY MAIL, ON THE THIRD BUSINESS DAY FOLLOWING SUCH MAILING, (C) IF TELECOPIED, ON
THE DATE TELECOPIED, AND (D) IN THE CASE OF DELIVERY BY NATIONALLY-RECOGNIZED,
OVERNIGHT COURIER, ON THE BUSINESS DAY FOLLOWING DISPATCH.
C.
ENTIRE AGREEMENT.
THE TRANSITION AGREEMENT, INCLUDING THE
CONSULTING AGREEMENT REFERRED TO ABOVE, EMBODIES THE COMPLETE AGREEMENT AND
UNDERSTANDING AMONG THE PARTIES AND SUPERSEDE AND PREEMPT ANY PRIOR OR
CONTEMPORANEOUS UNDERSTANDINGS, AGREEMENTS OR REPRESENTATIONS BY OR AMONG THE
PARTIES, WRITTEN OR ORAL, WHICH MAY HAVE RELATED TO THE SUBJECT MATTER HEREOF IN
ANY WAY, INCLUDING, WITHOUT LIMITATION, THE CHANGE IN CONTROL AGREEMENT.
D.
COUNTERPARTS.
THIS TRANSITION AGREEMENT MAY BE EXECUTED IN TWO
OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
E.
SUCCESSORS AND ASSIGNS.
(I)
EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS TRANSITION AGREEMENT
SHALL BIND AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY MR. IMBRIANI AND
THE COMPANY AND THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, REPRESENTATIVES AND
ESTATE, AS THE CASE MAY BE; PROVIDED, HOWEVER, THAT THE OBLIGATIONS OF MR.
IMBRIANI UNDER THIS TRANSITION AGREEMENT SHALL NOT BE ASSIGNED WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMPANY AND EXCEPT AS PROVIDED IN SUBSECTION (II) BELOW,
THE OBLIGATIONS OF THE COMPANY UNDER THIS TRANSITION AGREEMENT SHALL NOT BE
ASSIGNED WITHOUT THE PRIOR WRITTEN CONSENT OF MR. IMBRIANI.
THIS TRANSITION
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY MR. IMBRIANI'S
LEGAL REPRESENTATIVES IN ACCORDANCE WITH ITS TERMS.
(II)
THE COMPANY WILL REQUIRE ANY SUCCESSOR TO THE COMPANY OR
SUBSTANTIALLY ALL OF ITS ASSETS TO ASSUME EXPRESSLY AND AGREE TO PERFORM THIS
TRANSITION AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY
WOULD BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE. AS USED
IN THIS TRANSITION AGREEMENT, "COMPANY" SHALL MEAN THE COMPANY AS HEREINBEFORE
DEFINED AND ANY SUCCESSOR TO ITS BUSINESS AND/OR ASSETS AS AFORESAID WHICH
ASSUMES AND AGREES TO PERFORM THIS TRANSITION AGREEMENT BY OPERATION OF LAW OR
OTHERWISE.
F.
AMENDMENT AND WAIVER. THE PROVISIONS OF THIS TRANSITION
AGREEMENT MAY BE AMENDED AND WAIVED ONLY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY AND MR. IMBRIANI, AND NO COURSE OF CONDUCT OR FAILURE OR DELAY IN
ENFORCING THE PROVISIONS OF THIS TRANSITION AGREEMENT SHALL AFFECT THE VALIDITY,
BINDING EFFECT OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF.
9
G.
GOVERNING LAW.
THIS TRANSITION AGREEMENT, THE RELEASE AGREEMENT
AND THE MUTUAL RELEASE, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE DOMESTIC LAWS OF THE COMMONWEALTH OF