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EXHIBIT 10.8
AGREEMENT
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THIS AGREEMENT dated as of the 20th day of November, 1995
between Petrolite Corporation, a Delaware Corporation, 000 Xxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 (the "Company") and Xxxxxxx X.
Xxxxxx, 000 Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 (the "Executive"):
WHEREAS, Executive has announced his intention to retire from
the Company; and
WHEREAS, Executive and the Company desire to confirm the
arrangements to which they have agreed relating to Executive's
retirement:
NOW THEREFORE, the parties agree as follows:
1. Executive hereby resigns as Chairman of the Board, President
and Chief Executive Officer of the Company, and from all
directorships and offices Executive holds with subsidiaries
and affiliates of the Company, effective November 20, 1995.
Executive shall continue to serve as a member of the Company's
Board of Directors until his present term expires on March 4,
1996.
2. Executive hereby elects to retire from the Company effective
March 31, 1996. Executive shall receive, commencing April 1,
1996, a monthly benefit equal to the benefit to which
Executive would be entitled at Executive's Normal Retirement
Date, as defined in the Petrolite Corporation Retirement Plan
(the "Plan"), as calculated under Section 5.2 of the Plan.
For purposes of this calculation, Executive's years of
Credited Service, as defined in the Plan, shall include the
number of such years accrued through March 31, 1996, plus an
additional five years of Credited Service. Such calculation
shall not take into account the dollar limitation on Annual
Earnings, as provided in Section 1.6 of the Plan. The benefit
as calculated under this paragraph 2 shall be paid by the
Company to the extent it is not paid by the trust under the
Plan; except that, the Company shall have no obligation to pay
the benefit, as calculated under this paragraph 2, to the
extent it otherwise pays such benefit pursuant to any non-
qualified deferred compensation plan currently sponsored by
the Company or to be adopted by the Company at any time in the
future. Benefits paid by the Company under this paragraph 2,
other than the portion of the benefit paid pursuant to a non-
qualified deferred compensation plan, shall be paid at the
same time and the same form as the benefit is paid from the
trust under the Plan. Any optional form election Executive
makes under the Plan also shall be applicable to the benefit
paid under this paragraph 2, including any actuarial reduction
in such benefit. Payment of the benefit under this paragraph
2 shall be from the assets of the Company. Executive and any
beneficiary of such benefit shall be general, unsecured
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creditors of the Company with respect to such benefit.
Executive's right, and that of Executive's beneficiary, to
such benefit shall not be subject to anticipation, alienation,
sale, assignment, pledge, encumbrance or change and shall not
be subject to debts, contracts, liabilities or torts of the
person entitled to such benefit. A worksheet showing the
calculation of Executive's retirement benefit, including the
benefit provided by this paragraph 2, is attached hereto as
Exhibit A.
3. Between the effective date of this Agreement and March 31,
1996, Executive shall continue as an employee of the Company
and shall be paid at a rate based on Executive's annual base
salary. Except as provided otherwise in this Agreement,
Executive shall be eligible to participate in the Company's
various employee benefit plans according to their respective
terms. During this period Executive shall be available to
provide such advice and counsel as the Company reasonably may
request. Except as the Company may so request Executive shall
not perform any work or provide any services for the Company
and Executive will not be expected or permitted to be present
at any Company workplace or facility. Executive shall not be
prohibited from seeking and performing other employment
between the effective date of this Agreement and March 31,
1996, or thereafter.
4. Executive hereby elects, and qualifies for, retiree medical
coverage under the Company's Comprehensive Medical Plan as it
may exist from time to time, effective on Executive's
retirement. Executive's premium cost for coverage for an
applicable year will equal the amount payable for such
coverage by an active employee of the Company for such year.
5. Executive shall be entitled to be reimbursed for expenses
Executive actually incurs for the rental of a business office,
related expenses, and business secretarial support from
November 20, 1995, through November 30, 1996, in an amount not
to exceed $1,500 per month. The Company will provide
furniture to Executive from its existing stock of excess
office furniture and shall cause such office furniture, and
such of Executive's personal effects as Executive directs, to
be moved to the rental business office.
6. Executive may continue Executive's memberships at Old Warson
Country Club, The Bogey Club and Castle Pines Golf Club so
long as Executive assumes, and shall have full responsibility
for, membership dues, assessments and expenses incurred after
March 31, 1996. Between the effective date of this Agreement
and March 31, 1996, the Company will reimburse Executive for
membership assessments and dues paid by Executive and, in
addition, shall reimburse Executive for reasonable monthly
expenses actually incurred at these clubs.
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7. In consideration for Executive's continuing consultation with
the Company as an independent contractor as may be requested
from time to time by the Company after April 1, 1996,
Executive or Executive's estate shall be paid $370,000,
payable in 12 equal monthly installments commencing on
April 1, 1996.
8. Notwithstanding the terms of the Petrolite 1993 Stock
Incentive Plan, and notwithstanding the terms of any options
issued to Executive pursuant thereto, Executive hereby
surrenders and shall not have the right to exercise options to
purchase shares of Petrolite stock granted to Executive under
the Petrolite 1993 Stock Incentive Plan, and all such stock
options Executive holds shall be deemed to have terminated as
of the effective date of this Agreement. Stock options
granted to Executive under the 1987 Stock Incentive Plan shall
remain exercisable according to their respective provisions.
9. Except for the stock options granted to Executive under the
1987 Stock Incentive Plan, which may be exercised according to
their respective provisions, Executive shall not be a
participant in any annual or long-term incentive plan
maintained by the Company, and Executive shall not be entitled
to any payment under any incentive plan for the fiscal year
ending October 31, 1995.
10. That certain Executive Agreement between Executive and the
Company dated August 10, 1994 shall be and the same hereby is
terminated as of the effective date of this Agreement, and
both Executive and the Company release and forever discharge
the other from any and all agreements, undertakings,
obligations, duties, demands and/or claims arising out of or
in connection with the Executive Agreement and the parties'
performance or lack of performance thereof.
11. Executive covenants and agrees that Executive will not at any
time reveal or otherwise communicate to any person or entity
any Confidential Information to which Executive had or may
have access. For purposes of this Agreement "Confidential
Information" shall mean all confidential and proprietary
information and trade secrets of the Company including, but
not limited to, financial and accounting information and
procedures, product pricing data and product formulae,
identity of customers, customer requirements, sales data,
marketing information, manufacturing processes, inventions,
know-how, technology, special processes and techniques, and
distribution methods of the Company or any of its subsidiaries
or affiliates, but shall not include Confidential Information
that is in the public domain or becomes part of the public
domain other than through any fault of Executive's.
12. Executive agrees to keep confidential the terms of this
Agreement from persons other than Executive's immediate family
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and attorneys, accountants, financial advisors, IRS
representatives and other professionals who have a legitimate
need to know. Both Executive and the Company may be required
to disclose all or part of the terms of this Agreement and
each party hereby consents to such required disclosure.
13. Executive agrees that Executive will not disparage the Company
or its business nor, after notice from the Company, continue
or pursue any action or course of action which the Company
reasonably deems to be not in the best interests of the
Company.
14. Intending to bind himself and his heirs, executors,
administrators and assigns, Executive does hereby release,
remise, acquit and forever discharge Petrolite Corporation, a
Delaware corporation, and its present and former officers,
directors, executives, agents, employees, employee benefit
plans and trustees thereof, affiliated companies, divisions,
subsidiaries, successors, predecessors and assigns
(collectively the "Released Parties"), of and from any and all
claims, actions, causes of action, demands, rights, damages,
debts, sums of money, accounts, financial obligations, suits,
expenses, attorneys' fees and liabilities of whatever kind or
nature in law, equity or otherwise, whether now known or
unknown, suspected or unsuspected, which Executive,
individually or as a member of a class, now has, owns or
holds, or at any time heretofore had, owned or held, against
any Released Party arising out of or in any way connected with
Executive's employment relationship with the Company, its
subsidiaries, predecessors or affiliated entities, or the
termination thereof including, without limitation,
a. any such claim or action at law or equity under any
federal, state or local law, regulation or executive
order including, but not limited to, actions under
Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. Sec. 2000 et seq., the Americans with
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Disabilities Act, the Equal Pay Act, the Employee
Retirement Income Security Act; and
b. any such claim or action under the Age Discrimination in
Employment Act of 1967 (ADEA) as amended, 29 U.S.C.
Sec. 621 et seq. (except that this waiver does not apply
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to rights or claims that may arise under the ADEA after
the date this waiver is executed); and
c. any such claim or action that would or could be the
subject of any administrative proceeding under any
federal, state or local law or regulation; and
d. any such claim or action under the Missouri Fair
Employment Practices Act, Sec. 213.010 et seq., RSMO; and
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e. any such claim or action at common law in contract or
tort including, but not limited to, claims for severance
or vacation benefits, unpaid wages, salary or incentive
payments, breach of contract, wrongful discharge,
impairment of economic opportunity, reimbursement for
fines paid, back pay, front pay, wages, and compensatory
damages, punitive damages, attorneys' fees, seniority,
reinstatement and re-employment, and including all
possible claims for defamation, slander, libel, and
infliction of mental distress;
excepting only:
1. those obligations of the Company under this
Agreement;
2 any rights to indemnification Executive may have
under applicable corporate law, the by-laws or
certificate of incorporation of any Released Party
or as an insured under any D&O or liability
insurance policy now or previously in force; and
3. any claims under any applicable workers'
compensation statute which arose prior to the date
of Executive's termination from employment.
15. Executive acknowledges and agrees that nothing in this
Agreement shall be construed as an admission of any liability
whatsoever by any Released Party under Title VII, ADEA or any
other federal or state statute or the principles of common
law.
16. Executive acknowledges that Executive has been given full
opportunity to read and consider this Agreement, that
Executive has received advice from those legal, financial,
tax, and other advisors that Executive desired to consult in
reviewing this Agreement prior to executing it, and that
Executive fully understands all of its terms. Executive
acknowledges that Executive has not been coerced in any
manner, and that Executive entered into this Agreement of
Executive's own free will and after advice and representation
by legal counsel of Executive's choice, with full knowledge of
the terms and consequences of this Agreement. Executive
further acknowledges that Executive has twenty-one (21) days
from the date of presentation of this Agreement to decide
whether to execute it and that Executive has been specifically
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advised that Executive should seek consultation with an
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attorney before signing it. Executive further acknowledges
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that Executive may revoke this Agreement, thereby nullifying
it and all of its terms, by notifying the Company of such
revocation at any time within seven (7) days after execution
of this Agreement. Executive further understands that this
Agreement, and all of its terms, are not effective or
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enforceable until the seven (7) day revocation period has
elapsed. Executive acknowledges that no promises or
representations have been made to Executive to obtain the
release from liability other than those that are expressly set
forth in this Agreement.
17. Executive agrees to execute such documents as the Company
reasonably may request from to time to implement the
provisions of this Agreement.
18. Executive acknowledges and agrees that in the event of any
breach hereof which continues uncured after ten (10) days'
notice, the Company may, in addition to other remedies, cease
making any payments required hereunder, except that this right
shall not apply to the benefit provided by paragraph 2 of this
Agreement. Executive further acknowledges and agrees that
monetary damages could not and cannot adequately compensate
the Company in the event of the violation or breach of any of
the terms of this Agreement and that injunctive relief would
be essential for the protection of the Company. Executive
does agree, therefore, that the Company may have such
injunctive relief without any requirement for a bond, upon due
notice and hearing, as will be necessary to provide full and
ongoing protection to the Company with respect to the matters
set out herein, in addition to such further or other relief as
may appertain at equity or law. Suit for injunctive relief
(and for such monetary damages as may be proved as a result of
breach of any term of this Agreement) may be filed in an
appropriate Federal or State court having general trial
jurisdiction in any political subdivision (i) in Missouri or
(ii) in any State in which Executive then may be found or
(iii) in any State in which a breach or violation of any of
the aforesaid terms and conditions is alleged to have
occurred, and Executive consents to the jurisdiction of any
such court in which such suit is instituted and further agrees
that service of process upon Executive by certified or
registered mail shall be valid and sufficient and shall be
deemed to have the same legal effect as if personal service
had been made upon Executive in the jurisdiction in which such
suit has been initiated.
19. Executive is a Participant in the Employees' Savings Plan and
the Non-Qualified Savings Plan, both of which are maintained
by the Company. Nothing in this Agreement shall be construed
to affect any rights Executive may have under either of such
Plans.
20. This Agreement has been entered into in the State of Missouri
and is a Missouri contract. Accordingly, its terms and
provisions shall be governed by, and construed and enforced in
accordance with, the law of the State of Missouri without
application of any Missouri principles of conflict of laws.
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21. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and is fully
approved and agreed to by the undersigned parties effective
the 20th day of November, 1995.
PETROLITE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Chairman, Compensation Committee
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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