Exhibit 10.8(d)
AEROVOX INCORPORATED
Severance Agreement
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AGREEMENT, made this 6th day of January, 1992 by and between Xxxxxx
Xxxxx ("Executive") and AEROVOX INCORPORATED (the "Company"),
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its shareholders for the
Company to agree to provide benefits under circumstances described below to
Executive and other executives who are responsible for the policy-making
functions of the Company and its subsidiaries and the overall viability of the
Company's business; and
WHEREAS, the Board recognizes that the possibility of a change of control
of the Company is unsettling to such executives and desires to make arrangements
at this time to help assure their continuing dedication to their duties to the
Company and its shareholders, notwithstanding any attempts by outside parties to
gain control of the Company; and
WHEREAS, the Board believes it important, should the Company receive
proposals from outside parties, to enable such executives, without being
distracted by the uncertainties of their own employment situation, to perform
their regular duties, and where appropriate to assess such proposals and advise
the Board as to the best interests of the Company and its shareholders and to
take such other action regarding such proposals as the Board determines to be
appropriate; and
WHEREAS, the Board also desires to demonstrate to the executives that the
Company is concerned with their welfare and intends to provide that loyal
executives are treated fairly.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. In the event that any individual, corporation, partnership, company, or
other entity (a "Person"), which term shall include a "group" (within the
meaning of section 13(d) of the Securities Exchange Act of 1934 (the "Act")),
begins a tender or exchange offer, circulates a proxy to the Company's
shareholders, or takes other steps to effect a "Change of Control" (as defined
in paragraph 3 below), Executive agrees that he will not voluntarily leave the
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employ of the Company and will render the services contemplated in the recitals
to this Agreement until such Person has terminated the efforts to effect a
Change of Control or until a Change of Control has occurred.
2. If, within 24 months following a Change of Control, Executive's
employment with the Company is terminated by the Company for any reason other
than for "Cause" (as defined in paragraph 4 below) or Executive terminates such
employment for good reason as described in paragraph 5 below:
(a) the Company will pay to Executive within 30 days of such
termination of employment a lump-sum cash payment equal to the sum of (i)
his annual base salary at the rate in effect on the date immediately before
the Change of Control (or for such shorter portion of that period as
Executive performed services for the Company), plus (ii) an amount equal to
Executive's X-Factor bonus level, as described in the Aerovox Incorporated
Executive Incentive Bonus Plan as in effect on the date immediately before
the Change of Control (the "Bonus Plan"), multiplied by such annual base
salary, without deduction for any amounts previously paid or payable to
Executive under the Bonus Plan; and
(b) the Company will pay Executive within 30 days after completion of
the year end audit for the fiscal year in which the Change of Control
occurs any "hold back" (as described in the Bonus Plan) due to Executive
under the Bonus Plan based on the actual RONA (as defined in the Bonus
Plan); and
(c) any stock options granted to Executive by the Company will become
immediately exercisable in full, and any restricted stock grants shall
immediately vest in full, notwithstanding any provision to the contrary of
the options or restricted stock awards; and
(d) the Company will pay to Executive within 30 days of such
termination of employment a lump-sum cash payment equal to the full balance
standing to his credit with the Company under any and all deferred
compensation plans or arrangements; and
(e) Executive, together with his dependents, will continue following
such termination of employment to participate fully in all accident and
health plans maintained or sponsored by the Company immediately prior to
the Change of Control, or receive substantially the equivalent coverage (or
the full value thereof in cash) from the Company, until the first
anniversary of such termination; and
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(f) the Company will promptly reimburse Executive for any and all legal
fees and expenses incurred by him, as incurred, as a result of such
termination of employment, including without limitation all fees and
expenses incurred to enforce the provisions of this Agreement.
Notwithstanding anything herein to the contrary, to the extent that any
payment or benefit provided for in this Section 2 is required to be paid or
vested at an earlier date under the terms of any other plan, agreement or
arrangement, such other plan, agreement or arrangement shall control.
Payments under Section 2 of this Agreement shall be made without regard to
whether the deductibility of such payments (or any other payments to or for the
benefit of Executive) would be limited or precluded by Internal Revenue Code
Section 280G and without regard to whether such payments (or any other payments)
would subject Executive to the federal excise tax on certain "excess parachute
payments" under Internal Revenue Code Section 4999; provided, that if the total
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of all payments to or for the benefit of Executive, after reduction for all
federal taxes (including the tax described in Internal Revenue Code Section
4999, if applicable) with respect to such payments (Executive's "total after-tax
payments"), would be increased by the limitation or elimination of any payment
under Section 2, amounts payable under Section 2 of this Agreement shall be
reduced to the extent, and only to the extent, necessary to maximize Executive's
total after tax payments. The determination as to whether and to what extent
payments under Section 2 of this Agreement are required to be reduced in
accordance with the preceding sentence shall be made at the Company's expense by
a nationally recognized accounting firm or law firm selected by Executive. In
the event of any underpayment or overpayment under Section 2 of this Agreement,
as determined by such firm as may have been designated in accordance with the
preceding sentence, the amount of such underpayment or overpayment shall
forthwith be paid to Executive or refunded to the Company, as the case may be,
with interest at the applicable Federal rate provided for in Section 7872(f) (2)
of the Internal Revenue Code.
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3. A Change of Control will occur for purposes of this Agreement if (i)
any person becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Act) of securities of the Company representing more than 30% of the combined
voting power of the Company's then-outstanding securities (other than as a
result of acquisitions of such securities from the Company), (ii) there is a
change of control of the Company of a kind which would be required to be
reported under Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Act (or a similar item in a similar schedule or form), whether or not the
Company is then subject to such reporting requirement, (iii) the Company is a
party to, or the stockholders approve, a merger, consolidation or other
reorganization (other than (a) a merger, consolidation or other reorganization
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent, either by remaining
outstanding or by being converted into voting securities of the surviving
entity, more than 50% of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately after such merger,
consolidation, or other reorganization, or (b) a merger, consolidation, or other
reorganization effected to implement a recapitalization of the Company, or
similar transaction, in which no person acquires more than 20% of the combined
voting power of the Company's then outstanding securities), a sale of all or
substantially all assets, or a plan of liquidation, or (iv) individuals who, at
the date hereof, constitute the Board cease for any reason to constitute a
majority thereof, provided, however, that any director who is not in office at
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the date hereof but whose election by the Board or whose nomination for election
by the Company's shareholders was approved by a vote of at least a majority of
the directors then still in office who either were directors at the date hereof
or whose election or nomination for election was previously so approved (other
than an election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the Directors of the Company, as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) shall be deemed to
have been in office at the date hereof for purposes of this definition.
Notwithstanding the foregoing provisions of this paragraph 3, a "Change of
Control" will not be deemed to have occurred (i) solely because of the
acquisition of securities of the Company (or any reporting requirements under
the Act relating thereto) by an employee benefit plan maintained by the Company
for its employees or (ii) as a result of the transfer of voting securities of
the Company by Bank of New England, N.A., as Trustee under the Trust Agreement
dated April 17, 1989 between said Trustee and Xxxxxx Industries, Inc., to the
beneficiaries of said Trust.
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4. "Cause" means only: commission of a felony by the Executive and
intended to result in substantial personal enrichment of the Executive at the
expense of the Company, conviction of a crime involving moral turpitude, or
willful failure by the Executive to perform his duties to the Company which
failure is deliberate on the Executive's part, results in material injury to the
Company, and continues for more than 15 days after written notice given to the
Executive pursuant to a two-thirds vote of all of the members of the Board, such
vote to set forth in reasonable detail the nature of the failure. For purposes
of this definition, no act or omission shall be considered to have been
"willful" unless it was not in good faith and the Executive had knowledge at the
time that the act or omission was not in the best interest of the Company.
5. If Executive leaves the employ of the Company for any reason:
following a reduction in his position, compensation, responsibilities,
authority, fringe benefits, perquisites, or any other benefit or privilege
enjoyed by him prior to the Change of Control (other than an insubstantial and
inadvertent action which is remedied by the Company promptly after receipt of
notice thereof given by the Executive), or following an attempt by the Company
to relocate Executive outside an area of approximately comparable size
surrounding the place where he is now employed, or to require him to perform
regular services outside of such area (except for travel reasonably required in
the performance of responsibilities), his employment will be deemed to have been
terminated by the Company for reasons other than Cause.
6. In the case of any dispute under this Agreement, Executive may initiate
binding arbitration in either Boston, Massachusetts or the State capital of the
State where he is now employed, before the American Arbitration Association by
serving a notice to arbitrate upon the Company or, at Executive's election,
institute judicial proceedings, in either case within 90 days of the effective
date of his termination or, if later, his receipt of notice of termination, or
such longer period as may be reasonably necessary for Executive to take such
action if illness or incapacity should impair his taking such action within the
90-day period. The Company shall not have the right to initiate binding
arbitration, and agrees that upon the initiation of binding arbitration by
Executive pursuant to this paragraph 7 the Company shall cause to be dismissed
any judicial proceedings it has brought against Executive relating to this
Agreement. The Company authorizes Executive from time to time to retain counsel
of his choice to represent Executive in connection with any and all actions,
proceedings, and/or arbitration, whether by or against the Company or any
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director, officer, shareholder, or other person affiliated with the Company,
which may affect Executive's rights under this Agreement. The Company agrees (i)
to pay the fees and expenses of such counsel as incurred, (ii) to pay the cost
of such arbitration and/or judicial proceeding, and (iii) to pay interest to
Executive on all amounts owed to Executive under this Agreement during any
period of time that such amounts are withheld pending arbitration and/or
judicial proceedings. Such interest will be at the base rate as announced from
time to time by The First National Bank of Boston.
In addition, notwithstanding any existing prior attorney-client
relationship between the Company and counsel retained by Executive, the Company
irrevocably consents to Executive entering into an attorney-client relationship
with such counsel and agrees that a confidential relationship shall exist
between executive and such counsel.
7. If the Company is at any time before or after a Change of Control
merged or consolidated into or with any other corporation or other entity
(whether or not the Company is the surviving entity), or if all or substantially
all of the assets thereof are transferred to another corporation or other
entity, the provisions of this Agreement will be binding upon and inure to the
benefit of the corporation or other entity resulting from such merger or
consolidation or the acquiror of such assets, and this paragraph 8 will apply in
the event of any subsequent merger or consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of assets described
above, nothing contained in this Agreement will detract from or otherwise limit
Executive's right to or privilege of participation in any stock option or
purchase plan or any bonus, profit sharing, pension, group insurance
hospitalization, or other incentive or benefit plan or arrangement which may be
or become applicable to executives of the corporation resulting from such merger
or consolidation or the corporation acquiring such assets of the Company.
In the event of any merger, consolidation, or sale of assets described
above, references to the Company in this Agreement shall unless the context
suggests otherwise be deemed to include the entity resulting from such merger or
consolidation or the acquire of such assets of the Company.
8. All payments required to be made by the Company hereunder to Executive
or his dependents, beneficiaries, or estate will be subject to the withholding
of such amounts relating to tax and/or other payroll deductions as may be
required by law.
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9. There shall be no requirement on the part of the Executive to seek
other employment or otherwise mitigate damages in order to be entitled to the
full amount of any payments and benefits to which Executive is entitled under
this Agreement, and the amount of such payments and benefits shall not be
reduced by any compensation or benefits received by Executive from other
employment.
10. Nothing contained in this Agreement shall be construed as a contract
of employment between the Company and the Executive, or as a right of the
Executive to continue in the employ of the Company, or as a limitation of the
right of the Company to discharge the Executive with or without Cause; provided
that the Executive shall have the right to receive upon termination of his
employment the payments and benefits provided in this Agreement and shall not be
deemed to have waived any rights he may have either at law or in equity in
respect of such discharge.
11. No amendment, change, or modification of this Agreement may be made
except in writing, signed by both parties.
12. At the election of the Company, this Agreement shall not apply to a
Change of Control which takes place after the fifth anniversary of the date
first written above, provided that the Company has given Executive notice of its
election at least 30 days before the Change of Control.
Payments made by the Company pursuant to this Agreement shall be in lieu of
severance payments, if any, which might otherwise be available to Executive.
Executive hereby waives all rights that he may have against the Company, Aerovox
M, Inc., RTE Corporation, Xxxxxx Power Systems, Inc., Xxxxxx Industries, Inc.,
or any affiliate or subsidiary thereof under the Key Executive Employment and
Severance Agreement between Executive and RTE Corporation dated April 15, 1988
and agrees that said agreement is hereby terminated.
The provisions of this Agreement shall be binding upon and shall inure to
the benefit of Executive, his executors, administrators, legal representatives,
and assigns, and the Company and its successors.
The validity, interpretation, and effect of this Agreement shall be
governed by the laws of the State of Delaware.
The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
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The Company shall have no right of set-off or counterclaims, in respect of
any claim, debt, or obligation, against any payments to Executive, his
dependents, beneficiaries, or estate provided for in this Agreement.
No right or interest to or in any payments hereunder shall be assignable by
the Executive; provided, however, that this provision shall not preclude him
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from designating one or more beneficiaries to receive any amount that may be
payable after his death and shall not preclude the legal representative of his
estate from assigning any right hereunder to the person or persons entitled
thereto under his will or, in the case of intestacy, to the person or persons
entitled thereto under the laws of intestacy applicable to his estate. The term
"beneficiaries" as used in this Agreement shall mean a beneficiary or
beneficiaries so designated to receive any such amount, or if no beneficiary has
been so designated, the legal representative of the Executive's estate.
No right, benefit, or interest hereunder, shall be subject to anticipation,
alienation, sale, assignment, encumbrance, charge, pledge, hypothecation, or
set-off in respect of any claim, debt, or obligation, or to execution,
attachment, levy, or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified in the
immediately preceding sentence shall, to the full extent permitted by law, be
null, void, and of no effect.
IN WITNESS WHEREOF, AEROVOX INCORPORATED and Executive have each caused
this Agreement to be duly executed and delivered as of the date first written
above.
AEROVOX INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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Xxxxxxxx X. Xxxxxx, Xx.
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/s/ Xxxxxx Xxxxx
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Executive
