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Exhibit 10.0 (d)
AMENDED AND RESTATED
MANAGEMENT AGREEMENT
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This AMENDED and RESTATED MANAGEMENT AGREEMENT ("Agreement") is
entered into as of this 11th day of June, 1997, by and between Figgie
International Inc. (the "Company") and Xxxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Executive is presently in the employ of the Company as
Vice President, General Counsel and Secretary of the Company; and
WHEREAS, the Company desires to retain the employment of the
Executive and the Executive desires to continue to serve the Company in such
capacity; and
WHEREAS, the Company and the Executive desire to set forth in a
written agreement the terms and provisions of such employment and of certain
severance and other payments to be made to the Executive under certain
circumstances;
NOW THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth in this Agreement and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Company and the Executive agree as follows:
SECTION 1. TERM OF EMPLOYMENT
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The Company will employ the Executive in accordance with the terms
and conditions set forth herein commencing as of the date of this Agreement and
extending for an initial period of three (3) years, subject, however, to earlier
termination as expressly provided herein. The Executive will continue to serve
the Company as Vice President, General Counsel and Secretary or in such other
future capacity as he and the Company might mutually agree and will devote his
full business time and best efforts to the satisfactory discharge of the
responsibilities of his offices, performing such other duties as might
reasonably be requested by the Company's Chief Executive Officer.
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The initial three (3) year period of employment will be
automatically extended for one (1) additional year at the end of the initial
three (3) year term, and then again after each successive year thereafter.
However, either party may terminate this Agreement at the end of the initial
three (3) year period, or at the end of any successive one (1) year term
thereafter, by giving the other party written notice of intent not to renew,
delivered at least three (3) months prior to the end of such initial period or
successive term.
In the event such notice of intent not to renew is properly
delivered, the term of the employment of the Executive shall then become
indefinite and can be terminated by the Company without notice. Similarly,
subject to the provisions of this Agreement relating to nondisclosure of
confidential information and non-interference with employees, customers and
suppliers, the Executive can quit, at any time thereafter, without notice to the
Company.
SECTION 2. BENEFIT PLANS
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During his employment, the Executive shall be entitled to
participate in all employee benefit plans and perquisites which are maintained
or established by the Company from time to time and which cover the Company's
senior executives provided he satisfies any applicable eligibility requirements
therefor.
SECTION 3. EMPLOYMENT TERMINATIONS
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3.1 TERMINATION DUE TO RETIREMENT OR DEATH. In the event the
Executive's employment is terminated by reason of retirement or death during the
term of this Agreement, the Executive's employment with the Company shall be
deemed terminated as of the effective date of retirement or at the end of the
month in which such death occurs and all benefits will be determined in
accordance with the Company's retirement, survivor's benefits, insurance,
Compensation Plan for Executives and other applicable programs then in effect,
except that in the case of the death of the Executive the Company will pay a pro
rata portion of any bonus which would have been payable to the Executive under
Section 3.7a. hereof. In no event will the other benefits described in the
remainder of Section 3.7 or the severance pay described in Section 3.8 be paid
in the event of death and in no event will any of the severance benefits and
severance pay described in Sections 3.7 and 3.8 be paid in the event of
retirement.
For purposes of this Section 3.1, the determination of whether a
termination qualifies as a
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retirement will be made in accordance with the then established rules and
definitions of the Company's Senior Executive Benefits Program or, if the Senior
Executive Benefits Program should no longer exist, the Company's tax qualified
defined benefit plan.
3.2 TERMINATION DUE TO DISABILITY. In the event the Executive
during the term of this Agreement becomes, in the opinion of the Company and
based upon reasonable medical opinion, so disabled as to be unable to
satisfactorily perform his duties hereunder, the Company will have the right to
terminate this Agreement (but not the Executive's employment) upon thirty (30)
days written notice to the Executive. In such event, the Executive's benefits
will be determined in accordance with the Company's disability and other
applicable plans and programs then in effect, except that in the case of the
disability of the Executive the Company will pay a pro rata portion of any bonus
which would have been payable to the Executive under Section 3.7a. hereof. In no
event will the other benefits described in the remainder of Section 3.7 or the
severance pay described in Section 3.8 be paid in the event of the disability of
the Executive.
3.3 VOLUNTARY TERMINATION BY THE EXECUTIVE OTHER THAN FOR GOOD
REASON. The Executive may terminate his employment other than for Good Reason as
such term is defined in Section 3.4 hereof at any time by giving the Company
written notice of intent to terminate, delivered at least thirty (30) calendar
days prior to the effective date of such termination. The Company will pay the
Executive his full base salary, at the rate then in effect, through the
effective date of such termination, plus all other benefits to which the
Executive has a vested right at that time (including but not limited to unused
vacation time, COBRA benefits and stock option benefits). If such Termination is
other than for Good Reason, the Executive shall not be entitled to the Severance
Benefits set forth in Section 3.7 hereof or the Severance Pay set forth in
Section 3.8 hereof. The Executive shall, however, comply with the provisions of
Sections 4.1 and 4.2 hereof.
3.4 VOLUNTARY TERMINATION BY THE EXECUTIVE WITH GOOD REASON. In the
event that the Executive terminates his employment with Good Reason as defined
below in this Section 3.4, the Executive will be entitled to receive the
Severance Benefits set forth in Section 3.7 hereof and, if he qualifies
therefor, the Severance Pay set forth in Section 3.8 hereof.
For purposes of this Agreement, an Executive shall be deemed to
have terminated his employment
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for "Good Reason" if his termination of employment occurs:
a. within three (3) months after a "Change of Control" as
defined in the Company's Stock Option Plan;
b. during the period which is within three (3) months after
the last of four (4) consecutive calendar quarters during
which the Consolidated Revenues of the Company, as shown
on the quarterly financial results distributed to
shareholders, shall have been less than Seventy-Five
Million Dollars in each of such four (4) calendar
quarters;
c. within twelve (12) months after the completion of:
i. a move of the Company's Headquarters to a location
which is outside of a one hundred (100) mile radius
of the current location of the Company's Headquarters
in Willoughby, Ohio; or
ii. a relocation of the place where the Executive is
assigned to work to a location which is outside of a
one hundred (100) mile radius of the current location
of the Company's Headquarters in Willoughby, Ohio;
provided that such move or relocation occurs within the
two (2) year period next following the date of execution
of this Agreement;
d. within three (3) months after:
i. the Board of Directors of the Company shall fail to
re-elect or shall remove the Executive from the
office of Vice President, General Counsel and
Secretary;
ii. the Chief Executive Officer or the Board of Directors
of the Company shall make a significant negative
change in the nature or scope of the authorities,
powers, functions or duties of the Executive
hereunder;
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iii. the Company shall fail to pay when due any
compensation due and owing to the Executive or a
reduction in the Executive's base pay or material
reduction in benefits and such failure is not
corrected within ten (10) days after notice thereof
to the Company by the Executive; or
iv. any pattern of harassment which occurs within the
first twelve (12) months after the execution of this
Agreement, which is done with the approval of the
Chief Executive Officer or the Board of Directors of
the Company and which impedes the Executive in the
exercise of his authorities, powers, functions or
duties hereunder in the manner in which they would
normally be exercised by a Vice President, General
Counsel and Secretary.
In the event that the Executive shall terminate his employment with Good Reason,
he shall provide the Company with thirty (30) days advance notice of his date of
termination of employment.
3.5 TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE. The Executive
acknowledges that he is, has been and will continue at all times to be an
at-will employee of the Company and as such his employment has been and
continues to be terminable, subject to the terms and conditions of this
Agreement, by either the Executive or the Company at any time upon notice to the
other as provided for herein and for any reason not prohibited by law. However,
if the Company terminates the Executive's employment other than for "Cause" (as
defined in Section 3.6 hereof), the Executive will be entitled to receive the
Severance Benefits set forth in Section 3.7 hereof and, if he qualifies
therefor, the Severance Pay set forth in Section 3.8 hereof.
3.6 TERMINATION BY THE COMPANY FOR CAUSE. Nothing in this Agreement
will be construed to prevent the Company from terminating the Executive's
employment for Cause and without any further duty or obligation under this
Agreement. As used herein, "Cause" will be determined by the Company in the
exercise of good faith and reasonable judgment and will include (i) Executive's
willful failure to perform his duties under this Agreement within a reasonable
period of time after receipt of written notice from the
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Company setting forth in reasonable detail the duties which Executive has failed
to perform and the corrective actions expected of him; (ii) a breach of
Executive's obligations under Section 4 below; (iii) indictment for, conviction
of, or written confession to a crime against the Company or a felony; or (iv)
Executive shall have been found by the Board of Directors of the Company to have
been repeatedly and excessively abusing alcohol, drugs and/or any other
intoxicating or controlled substance. Upon any such termination all rights,
obligations and duties of the parties hereunder shall immediately cease, except
Executive's obligations under Section 4 hereof.
3.7 SEVERANCE BENEFITS. In the event that the Company shall
terminate the employment of the Executive other than for "Cause" as defined in
Section 3.6 hereof, or in the event the Executive terminates his employment
pursuant to Section 3.4 hereof with Good Reason, the Company will, upon the
effective date of such termination and in lieu of any other severance which may
otherwise be payable:
a. Pay to the Executive in a cash lump sum a pro rata bonus
under the Bonus Plan with respect to the year in which he
is terminated, which Bonus shall be calculated using the
formula contained in the Bonus Plan based on the actual
results of the Company for such year but without any
discretionary adjustment of the amounts payable to the
Executive that might otherwise be permitted under the
Bonus Plan. Such bonus will be paid to the Executive on
the same day as bonuses under the Plan are paid to the
executives of the Company who are still employed with the
Company.
b. Pay for the costs of outplacement services actually used
by the Executive provided however, that the total fee paid
for such services will be limited to an amount equal to
seventeen percent (17%) of the Executive's annual base
salary rate as of the effective date of termination of
employment.
c. Pay to the Executive a cash lump sum, net of taxes, equal
to twelve (12) months of the monthly car allowance then
applicable to the Executive. Such payment shall be paid to
the Executive with thirty (30) days following his
termination of employment.
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d. Cause all stock options granted to the Executive pursuant
to the Key Employees' Stock Option Plan (the "Option
Plan") (or the grant of any right under any future stock
plan) to become immediately exercisable in full and to
remain fully exercisable until the earlier of the date of
expiration of the option or one (1) year after his date of
termination of employment; provided, however, that nothing
herein shall affect the continued applicability of Section
7(d) of the Option Plan, a copy of which is attached
hereto, to such options.
e. Provide to the Executive tax and/or legal consultation
with respect to the benefits granted hereunder up to a
maximum cost to the Company of $5,000;
f. Provide assistance to the Executive in obtaining the
financing necessary for the Executive to exercise his
stock options during the period specified in Section 3.7d.
hereof; and
g. Continue to be obligated to pay when due all other
benefits to which the Executive has a vested right
according to the provisions of any applicable retirement
or other benefit plan or program.
3.8 SEVERANCE PAY. If the Executive executes the Non-competition
Agreement attached hereto and delivers such executed Agreement to the Company no
later than thirty (30) days after the date of this Agreement, and if the
employment of the Executive is terminated by the Company other than for "Cause"
as defined in Section 3.6 hereof, or by the Executive pursuant to Section 3.4
hereof with Good Reason, the Executive shall be entitled to Severance Pay as
follows:
a. At the election of the Executive, the Company shall either
continue to pay to the Executive for the twenty-four (24)
months following his termination of employment, his
monthly base salary at the rate in effect as of the date
of such termination in accordance with the Company's
normal payroll practices or make a lump sum payment to the
Executive of the amount due above. Any such lump sum will
be payable within thirty (30) days after the date the
Company receives written notice of the Executive's
election to receive the lump sum. In addition, the
Company, throughout such twenty-four month period, will
continue the Executive's life insurance and health care
benefits coverage on the same terms and
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at the same cost to the Executive as would be applicable
to a similarly situated full-time employee provided
however, that in the event the Executive begins to receive
comparable life insurance and health care benefits
(determined at the sole discretion of the Company) from a
subsequent employer during such period, the Company may
immediately terminate its life insurance and health care
benefits coverage of the Executive. Coverage under the
Company's health care benefits plan will be in lieu of
health care continuation under the Consolidated Omnibus
Budget Reconciliation Act ("COBRA") for periods such
coverage is in effect under this Agreement.
b. Count the twenty-four (24) month period of severance pay
as continued service with the Company for purposes of
determining the Executive's vested benefits under the
Company's Senior Executive Benefits Program.
3.9 VESTING OF STOCK OPTIONS. In the event the proceeds from a sale
or disposition of any of the Divisions or Subsidiaries which the Company owns on
the date of this Agreement are used to provide a dividend to the shareholders of
the Company, then immediately upon the effective date of such sale or
disposition the Company will cause all stock options granted to the Executive
pursuant to the Key Employees' Stock Option Plan (the "Option Plan") to become
immediately exercisable in full and to remain fully exercisable so that the
Executive shall be entitled to become a shareholder of record such that the
Executive shall be entitled to receive the benefits of the dividend.
SECTION 4. COVENANTS
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4.1 DISCLOSURE OR USE OF INFORMATION. The Executive will at all
times during and after the term of his employment by the Company keep and
maintain the confidentiality of all Confidential Information and will not at any
time either directly or indirectly use such information for his own benefit or
otherwise divulge, disclose or communicate such information to any person or
entity in any manner whatsoever other than employees or agents of the Company
who have a need to know such information and then only to the extent necessary
to perform their responsibilities on behalf of the Company. As used herein,
"Confidential Information" will mean any and all information (excluding
information in the public domain) which relates to
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the business of the Company including without limitation all patents and patent
applications, copyrights applied for, issued to or owned by the Company,
inventions, trade secrets, computer programs, engineering and technical data,
drawings or designs, manufacturing techniques, information concerning pricing
and pricing policies, marketing techniques, suppliers, methods and manner of
operations, and information relating to the identity and/or location of all
past, present and prospective customers of the Company.
4.2 CO-OPERATION. During the term of this Agreement and for a
period of twenty-four (24) months following its termination, the Executive will
not attempt to induce any employee of the Company to terminate his or her
employment with the Company nor will he take any action with respect to any of
the suppliers or customers of the Company which would have or might be likely to
have an adverse effect upon the business of the Company. Executive hereby agrees
not to make any statement or take any action, directly or indirectly, that will
disparage or discredit the Company, its Officers, Directors, employees or any of
its products, or in any way damage its reputation or ability to do business or
conduct its affairs. Executive agrees that subsequent to his termination of
employment he will, in conjunction with a Company request, reasonably cooperate
with the Company in connection with transition matters, disputes and litigation
matters upon reasonable notice, at reasonable times, and will be paid or
reimbursed for reasonable expenses incurred by the Executive relating to such
matters.
4.3 INJUNCTIVE RELIEF. In the event of a breach or threatened
breach of any of the provisions of this Section 4 by the Executive, the Company
will be entitled to preliminary and permanent injunctive relief, without bond or
security, sufficient to enforce the provisions thereof and the Company will be
entitled to pursue such other remedies at law or in equity as it deems
appropriate.
SECTION 5. MISCELLANEOUS
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5.1 SUCCESSORS. This Agreement is personal to the Executive and
will not be assignable by him without the prior written consent of the Company.
This Agreement may be assigned or transferred to and will be binding upon and
inure to the benefit of any Successor of the Company. As used herein, the term
"Successor" will include any person, firm, corporation or business entity which
acquires all or substantially all of the assets or succeeds to the business of
the Company or the Division.
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5.2 ENTIRE AGREEMENT. This Agreement supersedes any prior
agreements or understandings, oral or written, between the Executive and the
Company with respect to the subject matter hereof and constitutes the entire
agreement of the parties with respect thereto.
5.3 MODIFICATION. This Agreement will not be varied, altered,
modified, canceled, changed, or in any way amended except by mutual agreement in
a written instrument executed by the Company and the Executive or their legal
representatives.
5.4 TAX WITHHOLDING. The Company may withhold from any benefits
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
5.5 GOVERNING LAW. To the extent not preempted by federal law, the
provisions of this Agreement will be construed and enforced in accordance with
the laws of the State of Ohio.
5.6 INDEMNIFICATION. The Company has obtained an opinion of Xxxxxx
Xxxxxxxx LLP that the payments and benefits under this Agreement do not exceed
the maximum amount which can be paid to the Executive without incurring an
excise tax under Section 4999 of the Internal Revenue Code. If the Internal
Revenue Service asserts that the amounts payable to the Executive under this
Agreement nonetheless give rise to an excise tax under Sections 4999 of the
Internal Revenue Code and the Executive co-operates with the Company in
appealing the determination of the Internal Revenue Service through whatever
level of administrative or judicial appeals is deemed appropriate by the
Company, the Company shall indemnify the Executive for the amount of such excise
tax, for any interest and penalties applicable thereto, and for any income or
excise taxes payable on such indemnification. The Company shall pay all costs of
challenging the determination that the excise tax applies to payments hereunder
including any administrative costs, court costs, attorney fees, and accounting
fees, whether incurred by the Company or incurred by the Executive.
5.7 REPLACEMENT OF EXISTING CONTRACTS. This Agreement will replace
the Management Agreement dated February 1, 1996 between Figgie and the Executive
and the Retention Agreement dated March 20, 1996 between Figgie and the
Executive.
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IN WITNESS WHEREOF, the Executive and the Company have executed
this Agreement as of the day and year first above written.
FIGGIE INTERNATIONAL INC.
By: /s/ F.R. XxXxxxxx
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F.R. XxXxxxxx
And: /s/ Xxxxxx X Xxxxxxxxxx
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Xxxxxx X Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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NON-COMPETITION AGREEMENT
In consideration of the promises and covenants of Figgie
International Inc. ("Figgie" or the "Company") contained in the Amended and
Restated Management Agreement between the Executive and Figgie including the
possible payment of twenty-four (24) months of severance pay to the Executive
under certain circumstances, the Executive hereby agrees that the Executive will
not, for a period of two (2) years after his termination of employment from
Figgie, directly or indirectly, for himself or for others, in any state of the
United States or in any foreign country where Figgie or any of its Affiliates
(as defined below) is then conducting business:
(1) engage, as an employee, partner, or sole proprietor, in
any business segment of any person or entity which
competes, directly or indirectly, with the product lines
of Figgie or its Affiliates; or
(2) in connection with any product lines of Figgie or its
Affiliates, render advice, consultation, or services to or
otherwise assist any other person or entity which
competes, directly or indirectly, with Figgie or any of
its Affiliates with respect to such product lines.
For the purposes of this Agreement, the term "Affiliates" shall mean any entity
controlled by or under common control with Figgie on the date of execution of
this Agreement, including, but not limited to, Figgie divisions and
subsidiaries.
The Executive understands that the foregoing restrictions may limit his
ability to engage in certain business pursuits during the period provided for
above, but acknowledges that he will receive sufficiently higher severance pay
from Figgie than he would otherwise receive to justify such restriction. The
Executive acknowledges that he understands the effect of the provisions of this
Agreement, that he has had reasonable time to consider the effect of these
provisions, and that he was encouraged to and had an opportunity to consult an
attorney with respect to these provisions. Figgie and the Executive consider the
restrictions contained in this Agreement to be reasonable and necessary.
Nevertheless, if any aspect of these restrictions is found to be unreasonable or
otherwise unenforceable by a Court of competent jurisdiction, the parties intend
for such restrictions to be modified by such Court so as to be reasonable and
enforceable and, as so modified by the Court, to be fully enforced.
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IN WITNESS WHEREOF, the Executive has executed this Agreement as of
this 11th day of June, 1997.
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
