Exhibit 10.1
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RETIREMENT AGREEMENT
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This RETIREMENT AGREEMENT (the "Agreement") is entered into as of
December 4, 2003 between XXXXXXX & XXXXX, INC., an Ohio corporation
("Employer"), and XXXXXX X. XXXXXXXX ("Executive") under the following
circumstances:
A. Executive is President and Chief Executive Officer and a
director of Employer; and
B. Executive is retiring from his employment with Employer and
resigning all of his offices with Employer, and Executive and Employer
desire in this Agreement to set forth the terms and conditions upon
which such events will occur;
NOW, THEREFORE, EMPLOYER AND EXECUTIVE AGREE AS FOLLOWS:
1. EMPLOYMENT SEPARATION. Executive hereby resigns his positions as
President and Chief Executive Officer and as a member of the Board of Directors
of Employer effective December 4, 2003. Notwithstanding such resignation of
offices, Executive shall continue as an employee of Employer until December 31,
2003 and will continue to receive his current base salary and current benefits
until December 31, 2003 although he will not report for work or engage in any
activities on behalf of Employer after December 4, 2003. At the close of
business on December 31, 2003, Executive's employment with Employer will
terminate (the "Retirement Date"). Effective December 4, 2003, Executive hereby
resigns as a director or officer of each of Employer's subsidiaries or
affiliates in which he holds any such office. Executive agrees to execute any
letter of resignation or other document which may be necessary to evidence his
resignation as a director or officer of Employer or any of its subsidiaries or
affiliates.
2. SEVERANCE PAY. Employer shall pay to Executive a total of
$530,000.00 in severance payments (the "Severance Amount"). The Severance Amount
shall be paid in calendar year 2004 in approximately equal bi-weekly payments in
accordance with Employer's normal pay schedule for executive employees by direct
deposit into Executive's account in accordance with Executive's existing direct
deposit instructions or as the same may be changed by Executive from time to
time. The required withholding and other applicable payroll taxes will be
deducted from such severance payments. In the event Executive should die before
receiving all such payments, the remaining payments will be paid to his spouse
if living, or if not living, to his estate.
3. MEDICAL INSURANCE COVERAGE. From the Retirement Date through
December 31, 2004, Employer will provide Executive and his spouse with medical
insurance coverage provided Executive is not working for a company or entity
which is in Competition with Employer (as defined in Section 7 of this
Agreement) or Executive is not employed by an employer who provides comparable
coverage to him. This medical insurance coverage will be provided to Executive
during the foregoing period on the same terms and basis as are in effect
for active executive employees of Employer. After the termination of such
coverage, Executive shall be eligible to elect COBRA coverage and Employer shall
reimburse Executive for the costs Executive incurs to maintain COBRA coverage to
July 31, 2006.
4. STOCK OPTIONS. Executive currently holds the options listed in
Schedule A to this Agreement ("Executive Options"). Employer agrees that any of
the Executive Options which is not exercisable on the Retirement Date shall vest
and become exercisable on such date. Any of the Executive Options which is
unexercised on the Retirement Date may be exercised at any time within three
years of the Retirement Date provided the date of exercise is not more than ten
years from the date the option was granted.
5. EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN. Executive is a participant
in Employer's Cash Balance Pension Plan (the "Qualified Plan") and its Executive
Supplemental Retirement Plan (the "SERP"). For purposes of calculating
Executive's benefits under the SERP, Executive shall be deemed to have 15 years
of Credited Service under the SERP. In addition, there shall be no reduction in
benefits under the SERP in the event Executive should commence receiving
benefits prior to age 65.
6. OTHER BENEFITS. Executive agrees that the payments and benefits
provided under this Agreement are greater than any to which he would otherwise
be entitled under Employer's policies or practices, including the Salary
Continuation Agreement between Executive and Employer, dated February 19, 1999
(the "Salary Agreement"). Executive also agrees that the payments and benefits
provided under this Agreement are all that he will receive from the Employer,
and that these payments and benefits are in lieu of, and replace, any payments
which Executive might have claimed eligibility for, or entitlement to, under the
Salary Agreement, any Employer policy or practice or agreement between Employer
and Executive, except for: (a) benefits to which Executive is entitled under the
Employer 401(k) Savings Plan, (b) benefits to which Executive is entitled to
under the Qualified Plan, the SERP, and any trust established in connection with
the foregoing, (c) option rights granted under the 1999 Long-Term Stock
Incentive Plan and (d) rights to insurance or indemnification from Employer.
7. NONCOMPETITION; CONFIDENTIALITY. If Executive, without the express
prior written consent of Employer, directly or indirectly, individually or as an
agent, officer, director, employee, consultant, shareholder, or partner engages
in any business or enterprise which is in Competition with Employer (as defined
below) within one year after the Retirement Date, all future payments to be
made, and benefits to be provided, under this Agreement will be forfeited and
all payments and benefits being provided under this Agreement will cease.
As used in this Section, (i) the words "Competition with Employer"
include competition with Employer or any direct or indirect subsidiary or
affiliate of Employer, or any of the successors or assigns of the business of
any of them (the "Employer Group"), and (ii) a business or enterprise will be in
Competition with Employer if it is engaged, in any state in the United States in
which any products of any member of Employer Group are then marketed or in any
foreign country in which such products are then marketed, in manufacturing,
designing, engineering, assembling or distributing pumps, oil field power
sections or wellhead equipment,
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industrial mixers and agitators, glass-lined reactor and storage vessels, or
processing, packaging, or printing equipment for the pharmaceutical industry
that is used for applications that equipment sold by a member of the Employer
Group is used. However, this section will not prevent the Executive from (i)
being employed by or serving as an officer of or consultant to any subsidiary or
division of a business or enterprise in Competition with Employer if that
subsidiary or division is not itself in Competition with Employer; or (ii)
purchasing or holding for investment less than 2% of the shares of any
corporation regularly traded either on a national securities exchange or in the
over-the-counter market.
The Executive also agrees that for a period of three years after the
Retirement Date, he will not, without the express prior written consent of
Employer, disclose or make available to anyone outside Employer any trade
secrets or confidential information belonging to any member of Employer Group.
As used in this Section, "confidential information" includes, but is not limited
to, business systems, manufacturing methods, bills of materials, formulas,
policies, procedures, manuals, promotional materials, price lists, pricing
policies, order forms, contracts, agreements, invoices, receipts, messages,
memoranda, circulars, bulletins, sales records for any assigned territory, sale
and delivery schedules, customer lists, customer files, customer credit terms
and information, any records regarding the solicitation of orders, past, present
or prospective orders to the extent that any of these items are used by Employer
or any of member of Employer Group, but confidential information does not
include information that (i) is or becomes generally available to the public
other than as a result of a disclosure by Executive or (i) becomes available to
Executive on a nonconfidential basis from a source other than a member of
Employer Group, provided that such source is not known by Executive to be bound
by a confidentiality agreement with or other obligation of secrecy to a member
of Employer Group.
Executive also agrees that for a one year period from the Retirement
Date, Executive will not directly or indirectly solicit, divert or attempt to
divert from Employer or a member of Employer Group, any employee of Employer or
a member of Employer Group.
8. RELEASE OF CLAIMS. In consideration of the payments and benefits
provided to Executive under this Agreement, Executive, on behalf of himself, his
heirs, assigns and agents, fully settles, releases, and forever discharges
Employer and its predecessors, successors, assigns, and affiliates and the
present and former officers, directors, agents, and employees of any of them
from any and all claims, demands, liabilities, costs, attorneys' fees, damages,
actions, and causes of action which he has against any of them. Executive
acknowledges and agrees that the foregoing release covers any and all claims
arising out of or related to his employment, or his termination from employment
with the Employer, including his termination as President, and Chief Executive
Officer and that it also includes, but is not limited to, any and all claims
under the following federal statutes and like or similar state or local laws:
Title VII of the Civil Rights Act of 1964, as amended; The Age Discrimination in
Employment Act; The Equal Pay Act; The Americans with Disabilities Act; The
Employee Retirement Income Security Act; and The Family and Medical Leave Act,
as well as any other type of employment discrimination, wrongful discharge,
retaliation, breach of express or implied contract, breach of his Salary
Agreement, promissory estoppel, emotional distress, intentional tort, or
personal injury claim. This release covers claims known and unknown, foreseen
and unforeseen, to Executive as of the
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effective date of this Agreement, but does cover any claims arising out of a
breach of this Agreement.
9. REEMPLOYMENT. In consideration of the payment and benefits provided
by this Agreement, Executive agrees that he will not knowingly seek
re-employment and will not be eligible for re-employment with Employer, or any
agency or entity connected with, owned or operated by Employer.
10. COOPERATION. Executive agrees that he shall reasonably assist
Employer or any of its direct or indirect subsidiaries in any claims or any
litigation brought by or against any of them involving matters occurring during
the period of his employment with Employer, including, among other things, being
deposed in litigation proceedings. Employer will reimburse Executive any
reasonable expenses or other costs that he incurs as a result of providing such
assistance.
11. SEVERABILITY; NON-ADMISSIONS. The provisions of this Agreement are
severable. If any provision of this Agreement is determined to be invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Agreement shall continue in full force and effect and the voided provision shall
be amended, if permissible, to the extent necessary to render it valid and
enforceable. This Agreement does not constitute an admission by Employer that it
has violated any contract, law or regulation or in any way infringed upon
Executive's rights or privileges. Employer expressly denies that it has done any
thing wrong or improper.
12. GOVERNING LAW. All matters relating to the interpretation,
construction, and enforcement of this Agreement shall be governed by and
construed according to the laws of the State of Ohio to the extent that those
laws are not preempted by the laws of the United States of America.
13. ACKNOWLEDGMENT. Executive, in connection with his execution of this
Agreement, acknowledges that he is waiving all rights and claims that he has or
may have under the federal Age Discrimination in Employment Act, as well as any
rights or claims that he has or may have under other federal, state, or local
laws with regard to discrimination and that he has been advised by Employer to
consult with an attorney prior to executing this Agreement.
14. ENTIRE AGREEMENT. The foregoing terms represent the entire
agreement between Executive and Employer relating to the cessation of his
employment with Employer and the only consideration for signing this Agreement,
except that nothing in this Agreement is intended in any way to limit or
restrict any provisions that Executive is subject to that relate to confidential
information of Employer or a member of Employer Group or non-competition with
Employer or a member of Employer Group. No other promises or agreements of any
kind have been made between the parties to cause them to sign this Agreement.
Executive states that he has carefully read this Agreement, that he fully
understands its terms, that he has had full
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opportunity to review it with his own legal counsel, that he understands its
legal and binding effect, and that he signs this Agreement voluntarily.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date and year first set forth above.
"Executive" "Employer"
XXXXXXX & XXXXX, INC.
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxx XX
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Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx XX
Chairman of the Board
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SCHEDULE A
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INDIVIDUAL: Xxxxxx X. Xxxxxxxx
EXERCISABLE UNEXERCISABLE OPTION
DATE SHARES SHARES PRICE
---- ------ ------ -----
06/28/95 14,000 --- $ 13.50
06/26/96 20,000 --- $ 22.38
06/24/97 20,000 --- $ 35.50
06/28/98 20,000 --- $ 24.44
06/22/99 30,000 --- $ 25.25
06/27/00 30,000 --- $ 20.88
06/26/01 20,000 10,000 $ 27.75
06/25/02 10,000 20,000 $ 25.17
06/24/03 --- 37,500 $ 19.20
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TOTAL 164,000 67,500
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