Exhibit 10.20
RETIREMENT AGREEMENT
THIS RETIREMENT AGREEMENT (the "Agreement") entered into on October __,
1999, by and between YORK INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), with its principal office in York, Pennsylvania, and Xxxxxx X.
Xxxxxxxxxx, a resident of York, Pennsylvania ("Executive").
WHEREAS, Executive is the Chairman and Chief Executive Officer of the
Company; and
WHEREAS, Executive has announced his intention to retire and the Board of
Directors of the Company (the "Board") has determined that Executive's
retirement at this time is acceptable; and
WHEREAS, the Board and Executive have agreed that Executive shall retire on
the date of this Agreement (the "Retirement Date") and shall resign as a
director of the Company; and
WHEREAS, in consideration of the years of valuable service provided by
Executive to the Company and his agreement to cooperate with the Company in
transitioning his duties to his successor, both parties desire to enter into an
agreement that will reflect the compensation and other benefits to which
Executive will be entitled by reason of his retirement and other agreements
between the parties;
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Retirement. Executive and the Company agree that Executive shall retire
on the Retirement Date and that Executive shall be considered to have retired
for all Company purposes, including all plans, benefits and programs which the
Company maintains or has maintained and in which Executive participated during
the term of his employment by the Company. Effective immediately, Executive
hereby resigns all positions (including without limitation all officer and
director positions) with the Company and its subsidiaries and shall cease to be
an employee of the Company or any of its subsidiaries. Until December 31, 2000,
the Company shall furnish Executive with reasonable office space off premises,
which shall be sufficient for him to conduct business at an executive level and
secretarial support. Within thirty days after the Retirement Date, Executive
shall be entitled to purchase his personal computer (but without any Company
proprietary software or data) from the Company for book value.
2. Payments and Benefits.
(a) Executive shall continue to receive his regular base salary and
continue to participate in all benefit plans and programs of the Company through
the Retirement Date. On the Retirement Date, the Company shall pay Executive, in
one lump sum in cash, the amount of base salary he otherwise would have received
from the Retirement Date through December 31, 1999 as well as an amount equal to
all accrued but unpaid vacation pay at the Retirement Date, reduced by all
applicable Federal (at the 28% rate), state and local income and employment
taxes
that must be withheld by the Company ("Withholding Taxes").
(b) On the eighth day following the execution of the Release, as
defined below, without revocation, but in no event earlier than January 2, 2000,
the Company shall pay to Executive in cash the sum of $2,400,000, reduced by the
Withholding Taxes.
(c) The Company shall also pay to Executive, no sooner than
January 2, 2000 and no later than March 31, 2000, in one lump sum in cash, all
amounts due Executive under the Company's Deferred Compensation Plan and the
single sum present value of the benefit due Executive under the Company's
Supplemental Executive Retirement Plan (the "SERP"), determined under the normal
terms of each such plan; provided, however, that the Company shall cause the
determination of the benefit due to Executive under the SERP to be made by
taking into account, and treating as a full year of compensation, all
compensation paid to Executive (including the payment made under subsection (a)
above) for (in the case of any 1999 bonus) or during 1999. The payment under
Section 2(b) of this Agreement shall not be taken into account in determining
the benefit due to Executive under the SERP.
(d) No further payments or benefits shall be made or provided to
Executive except for (i) Executive's rights to options, restricted stock,
performance units and benefits under the terms of the written benefit plans or
programs, sponsored by the Company, in which Executive participated prior to the
Retirement Date, (ii) continued provision of cellular telephone service, at the
same level as the Company provides senior executives generally, for the 36
months following the Retirement Date and (iii) as soon as practicable following
the execution of this Agreement, the Company shall pay Executive's counsel all
documented legal fees and expenses, to a maximum of $20,000, arising in
representing Executive in the preparation of this Agreement and, particularly,
in advising Executive as to the consequences to him of Section 3 of this
Agreement and the Release attached hereto as Annex 1.
3. Confidential Information. Executive recognizes and acknowledges that by
reason of his employment by and service to the Company before and during
employment, he has had and may continue to have access to confidential or
proprietary information relating to the business of the Company, which may
include, but is not limited to, trade secrets, trade "know-how", customer
information, supplier information, cost and pricing information, marketing and
sales techniques, strategies and programs, computer programs and software, and
all financial information including any and all balance sheets, income
statements or statements of cash flows with respect to the Company or any of its
subsidiaries or affiliates (collectively referred to as "Confidential
Information"). Executive acknowledges that such Confidential Information is a
valuable and unique asset of the Company and Executive covenants that he will
not, unless expressly authorized in writing by the Chairman or Chief Executive
Officer, at any time, use any Confidential Information or divulge or disclose
any Confidential Information to any person, firm or corporation. Executive also
covenants that at no time after the Retirement Date, directly or indirectly,
will he use any Confidential Information or divulge or disclose any Confidential
Information to any person, firm or corporation, unless such information is in
the public domain through no fault of Executive or except when required to do so
by a court of law, by any governmental agency having supervisory authority over
the business of the Company or by any administrative or legislative body
(including a committee thereof) with apparent jurisdiction to order him to
divulge, disclose or make accessible such information. In such a case, Executive
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will inform the Company in writing promptly of such required disclosure, but in
any event at least five business days prior to disclosure, and will reasonably
cooperate with the Company in attempting to resist the disclosure. All written
Confidential Information in Executive's possession during the course of his
employment shall remain the property of the Company. For the purposes of this
Section, the term "Company" shall be deemed to include the Company and all of
its subsidiaries and affiliates. The confidentiality obligations of this Section
are in addition to any other confidentiality obligation(s) of Executive under
any other agreement with the Company.
4. Equitable Relief.
(a) Executive acknowledges and agrees that the restrictions contained
in Section 3 are reasonable and necessary to protect and preserve the legitimate
interests, properties, goodwill and business of the Company, that the Company
would not have entered into this Agreement in the absence of such restrictions
and that irreparable injury will be suffered by the Company should Executive
breach any of those provisions. Executive 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 with his counsel.
(b) Executive further acknowledges and agrees that a breach of any of
the restrictions in Section 3 cannot be adequately compensated by monetary
damages. Therefore, in the event that the Company believes that Executive has or
is about to violate any of the provisions of Section 3, it shall provide
Executive with written notice as soon as reasonably practicable under the
circumstances and ask Executive to cease, or not to so violate those provisions.
Executive agrees that the Company shall be entitled to preliminary and permanent
injunctive relief, without the necessity of proving actual damages, and an
equitable accounting of all earnings, profits and other benefits arising from
any violation of Section 3. All such rights shall be cumulative and in addition
to any other rights or remedies to which the Company may be entitled.
5. Release. Notwithstanding anything else to the contrary in this
Agreement, the payments and benefits provided for under Section 2 of this
Agreement, shall be conditioned up Executive executing, and not revoking as
provided therein, a written release prior to the 22nd day following the
Retirement Date (the "Release"). The Release shall be in the form attached
hereto as Annex 1. In consideration of Executive's release, the Company shall
execute a release in favor of Executive, on the date of this Agreement but which
shall not become irrevocable until the Release becomes irrevocable, in the form
attached hereto as Annex 2. Notwithstanding the foregoing, Executive shall be
entitled to be indemnified by the Company, and the Release shall not apply to
any liability, cost or expense (including attorney's fees) for which Executive
would have been indemnified during employment and service on the Board, in
accordance with the bylaws of the Company, for actions taken on behalf of the
Company during the term of Executive's employment by, and service on the Board
of, the Company.
6. Notices. All notices and other communications required or permitted
under this Agreement or necessary or convenient in connection herewith shall be
in writing and shall be deemed to have been given when hand delivered or mailed
by registered or certified mail, or by
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overnight mail or fax, as follows (provided that notice of change of address
shall be deemed given only when received):
If to the Company, to:
YORK INTERNATIONAL CORPORATION
P. O. Xxx 0000-000X
Xxxx, XX 00000-0000
Attention: Corporate Secretary
If to Executive, to:
Xxxxxx X. Xxxxxxxxxx
00 Xxxxxxx Xxxx Xxxxx
Xxxx, XX 00000
With a required copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxxx, Esquire
or to such other names or addresses as the Company or Executive, as the case may
be, shall designate by notice to each other person entitled to receive notices
in the manner specified in this Section.
7. Subsequent Statements; Non-Disparagement. Executive and the Company
agree to mutually develop any oral or written statements to be given as to the
terms and reasons for Executive's retirement and separation from the Company and
to Executive's performance while an executive of the Company. Nothing contained
herein shall limit communication in connection with enforcing the terms of this
Agreement. Executive and the Company, acting through it directors, officers and
employees, each agree not to disparage or impugn the character or reputation or
business practices of the other.
8. Contents of Agreement; Amendment and Assignment.
(a) This Agreement supersedes all prior agreements and otherwise 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 approved by the Board and executed on its behalf
by a duly authorized representative and by Executive.
(b) 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,
executors, administrators, legal representatives, successors and assigns of the
parties hereto, except that the duties and responsibilities of Executive under
this Agreement are of a personal nature and shall not be assignable or
delegatable in whole or in part by Executive.
9. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such
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invalidity or unenforceability shall not affect any other provision or
application of this Agreement which can be given effect without the invalid or
unenforceable provision or application and shall not invalidate or render
unenforceable such provision or application in any other jurisdiction. If any
provision is held void, invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all
other circumstances.
10. Remedies Cumulative; No Waiver. No remedy conferred upon a party
by this Agreement is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given under this Agreement or now or hereafter existing at law or in
equity. No delay or omission by a party in exercising any right, remedy or power
under this Agreement or existing at law or in equity shall be construed as a
waiver thereof, and any such right, remedy or power may be exercised by such
party from time to time and as often as may be deemed expedient or necessary by
such party in its sole discretion.
11. Death Benefits; Beneficiaries/References. The payments due under
Section 2(b) of this Agreement shall be paid to Executive's beneficiary(ies) in
the event of his death prior to the date specified in that Section. Executive
shall be entitled to select and change a beneficiary or beneficiaries to receive
that payment following Executive's death by giving the Company written notice
thereof. In the event of Executive's death or a judicial determination of his
incompetence, reference in this Agreement to Executive shall be deemed, where
appropriate, to refer to his beneficiary(ies), estate or other legal
representative.
12. Withholding. The Company may withhold from any payments under this
Agreement the Withholding Taxes. Executive shall bear all expense of, and be
solely responsible for, all federal, state and local taxes due with respect to
any payment received under this Agreement.
13. Miscellaneous. All section headings used in this Agreement are for
convenience only. This Agreement may be executed in 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.
14. 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.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
executed this Agreement as of the date first above written.
YORK INTERNATIONAL CORPORATION
By
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Xxxxxx X. Xxxxxxxxxx
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ANNEX 1
GENERAL RELEASE
1. I, Xxxxxx X. Xxxxxxxxxx, for and in consideration of certain payments to be
made and benefits to be provided to me under Section 2 of the Agreement to which
this Annex 1 is attached, dated as of October 14, 1999 (the "Agreement") with
YORK INTERNATIONAL CORPORATION (the "Company"), and for other good and valuable
consideration, do hereby REMISE, RELEASE, AND FOREVER DISCHARGE the Company and
each of its subsidiaries and affiliates, and all of their respective past,
present, and future officers, directors, shareholders, partners, employees,
agents, and insurers, acting in any capacity whatsoever, and all of their
respective successors and assigns, heirs, executors, and administrators, and all
other persons or entities who/that might be claimed to be jointly or severally
liable with them (hereinafter collectively referred to as "the Released
Parties") of and from all claims causes of action, suits, charges, debts, dues,
sums of money, attorneys' fees and costs, accounts, bills, covenants, contracts,
agreements, expenses, wages, compensation, benefits, promises, damages,
judgments, rights, demands, or otherwise (hereinafter collectively referred to
as "Claims"), known or unknown, accrued or unaccrued, contingent or
non-contingent, in equity or in law, which I ever had, now have, or hereafter
may have, or which my heirs, executors, or administrators may have, by reason of
any matter, cause or thing whatsoever from the beginning of time through the
date of my signature on this General Release. This General Release includes, but
is not limited to, all Claims in any way arising from, relating to, or
concerning my employment with and the retirement of my employment from and
service on the Board of Directors of the Company and/or other Released Parties,
and the terms, conditions, and benefits payments resulting therefrom or my
status as a shareholder of the Company or any Released Party (other than a class
derivative rights action in which neither Executive nor any related persons are
named plaintiffs). This General Release further includes, but is not limited to,
all Claims for discrimination based upon age, sex, race, disability, national
origin, religion, or any other protected characteristic including without
limitation all Claims arising under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act, the Americans With Disabilities Act,
the Employee Retirement Income Security Act of 1974, as amended, the
Pennsylvania Human Relations Act, the Civil Rights Act of 1866, and all other
federal, state, and local employment discrimination statutes, and all Claims for
breach of contract or for the commission of any torts; provided, however, that
this General Release shall not apply to (i) any entitlements under the terms of
the Agreement or under any other plans or programs of the Company in which I
participated and under which I have accrued a benefit nor (ii) to my right to be
indemnified by the Company, pursuant to the bylaws of the Company or otherwise,
for any liability, cost or expense for which I would have been indemnified for
actions taken on behalf of the Company during the term and within the scope of
my employment by and service on the Board of Directors of, the Company.
2. I further agree and covenant that neither I, nor any person, organization
or other entity on my behalf, will assert, file, charge, claim, xxx or cause or
permit to be filed, charged, or claimed, any action with respect to any Claim(s)
which have been released under paragraph 1 of this Annex 1. If I do so, and the
action is found to be barred in whole or in part by paragraph 1 of
this Annex 1, I shall pay the attorneys' fees and costs incurred by any of the
Released Parties in defending against those Claim(s) that are found to be so
barred.
3. I hereby agree and recognize that my employment by the Company was
permanently and irrevocably severed on the Retirement Date and the Company (and
Released Parties) have no obligation, contractual or otherwise to me to hire,
rehire, re-employ or engage me in any capacity in the future, and I hereby
release the Released Parties from any and all liabilities based upon the denial
of re-employment or future engagement. I acknowledge that the terms of the
Agreement provide me with payments and benefits which are in addition to any
amounts to which I otherwise would have been entitled.
4. I hereby agree and acknowledge that the payments and benefits provided by
the Company are to bring about an amicable resolution of my employment
arrangements and are not to be construed as an admission of any violation of any
federal, state or local statute or regulation, or of any duty owed by the
Company and that the Agreement and this General Release are made voluntarily to
provide an amicable resolution of my employment relationship with the Company.
5. I hereby certify that I have read the terms of this General Release, that
I have been advised by the Company to discuss it with my attorney, and that I
understand its terms and effects. I acknowledge, further, that I am executing
this General Release of my own volition with a full understanding of its terms
and effects and with the intention of releasing all claims recited herein in
exchange for the consideration described in the Agreement, which I acknowledge
is adequate and satisfactory to me. None of the above-named parties, nor their
agents, representatives, or attorneys have made any representations to me
concerning the terms or effects of this General Release other than those
contained herein.
6. I hereby acknowledge that I have been informed that I have the right to
consider this General Release for a period of 21 days prior to execution. I also
understand that I have the right to revoke this General Release for a period of
seven days following execution by giving written notice to the Company at X.X.
Xxx 0000-000X, Xxxx, XX 00000, Attention: Corporate Secretary, and that the
Agreement shall not become effective or enforceable until the revocation period
has expired.
Intending to be legally bound hereby, I execute the foregoing General Release
this 14th day of October, 1999.
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Witness Xxxxxx X. Xxxxxxxxxx
ANNEX 2
GENERAL RELEASE
1. YORK INTERNATIONAL CORPORATION and each of its subsidiaries and
affiliates, and all of their respective past, present, and future officers and
directors and their respective successors and assigns, heirs, executors and
administrators (hereinafter collectively included within the term the "YORK"),
for and in consideration of the release of Xxxxxx X. Xxxxxxxxxx ("Executive"),
of October 14, 1999, and other good and valuable consideration, does hereby
REMISE, RELEASE, AND FOREVER DISCHARGE Executive, his assigns, heirs, executors
and administrators (hereinafter collectively included within the term
"Executive"), acting in any capacity whatsoever, of and from all claims, causes
of action, suits, charges, debts, dues, sums of money, attorneys' fees and
costs, accounts, bills, covenants, contracts, agreements, expenses, wages,
compensation, benefits, promises, damages, judgments, rights, demands, or
otherwise (hereinafter collectively referred to as "Claims") whatsoever in law
or in equity, which it ever had, now has, or hereafter may have, by reason of
any matter, cause or thing whatsoever from the beginning of Executive's
employment with YORK to the date of York's signature on this Release arising
from or relating in any way to Executive's employment and service as an officer,
director or fiduciary, his retirement and the termination of his employment and
service as an officer, director or fiduciary with YORK, including but not
limited to, any Claims which have been asserted, could have been asserted, or
could be asserted now or in the future under any federal, state or local laws,
any contracts between YORK and Executive and any Claims now or hereafter
recognized and all claims for counsel fees and costs; provided, however, that
this Release shall not apply to (i) any Claim(s) attributable to a crime or to
an action outside the scope of Executive's employment, (ii) any breach of
obligation under the terms of the Agreement nor (iii) any Claim(s) of which the
Company does not have knowledge nor could reasonably be expected to have
knowledge as of the date of this Agreement because of the Executive's fraud.
2. YORK further agrees and covenants that neither YORK, nor any person,
organization or other entity on its behalf, will assert, file, charge, claim,
xxx or cause or permit to be filed, charged, or claimed, any action with respect
to any Claim(s) which have been released under paragraph 1 of this Annex 2. If
York does so, and the action is found to be barred in whole or in part by this
Annex 2, York shall pay the attorneys' fees and costs incurred by the Executive
in defending against those Claim(s) that are found to be so barred.
3. YORK hereby certifies that it has been advised by counsel in the
preparation and review of this General Release.
Intending to be legally bound hereby, YORK executed the foregoing General
Release this 14th day of October, 1999.
York International Corporation
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Witness By:
