EXHIBIT 10(s)
RELEASE AGREEMENT
This Release Agreement is entered into by and between Xxxxx X.
Xxxxx, a resident of 00 Xxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
(hereinafter referred to as "Associate"), and Stanhome Inc., a
Massachusetts corporation having a principal place of business at 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (hereinafter referred to as the
"Company").
In consideration of the promises, conditions and representations set
forth herein, the severance payments being provided to Associate by the
Company as set forth below, and other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged by Associate
and the Company (hereinafter sometimes referred to collectively as the
"Parties"), the Parties hereby agree as follows:
1. Termination Date. Associate's employment with the Company shall
terminate involuntarily without cause as of the close of business on
March 31, 1998 (the "Termination Date").
2. Continuation of Salary and Benefits After Termination. Prior to
the Termination Date, Associate's salary and his participation in all
compensation and benefit plans and programs in which he currently is a
participant or from which he currently receives benefits will remain in
effect on the same terms as are in effect as of the effective date of
this Agreement.
As of the Termination Date, Associate's salary and any other
compensation and benefits he receives from the Company will terminate,
other than compensation and/or benefits to which he continues to be
entitled (a) pursuant to the terms of this Agreement, (b) as a matter of
federal or state law, (c) pursuant to the agreements between the Parties
to this Agreement listed below, including but not limited to a certain
Retirement Agreement entered into between the Parties dated June 5, 1997,
as amended December 15, 1997, (the "Retirement Agreement"), or (d)
pursuant to the terms of the compensation or benefit plans or programs in
which he continues to be a participant or has a right to receive such
compensation or benefits after the Termination Date listed below.
The agreements and compensation and benefit plans and programs
referred to herein are as follows:
o Medical and Life Employee Group Insurance Plan under Policy
#2232182 issued by Connecticut General Life Insurance Company to
Stanhome Inc.
o Accidental Death and Dismemberment Group Insurance Plan under
policy issued by AIG Insurance Company to Stanhome Inc.
o Retirement Agreement dated June 5, 1997, as amended December 15,
1997 and related Trust Agreement dated March 1, 1988, as amended
o Stanhome Pension Plan and related Trust Agreement dated January
1, 1980, as amended
o Stanhome Supplemental Pension Plan and related Trust Agreement
dated January 1, 1995, as amended
o Stanhome Investment Savings Plan and related Trust Agreement
dated January 1, 1993, as amended
o Stanhome Supplemental Investment Savings Plan and related Trust
Agreement dated January 1, 1995, as amended
o Stanhome Profit Sharing Plan and related Trust Agreement dated
October 1, 1992, as amended
o Stanhome Paysop Plan and related Trust Agreement dated October
15, 1985, as amended
o Stanhome Inc. 1984 Stock Option Plan
o Stanhome Inc. 1991 Stock Option Plan
o Stanhome Inc. 1996 Stock Option Plan
o Management Incentive Plan
o Change in Control Agreement effective January 1, 1992
o Stanhome Matching Gifts Program
With respect to those Company compensation and benefit plans and programs
in which Associate will continue to participate subsequent to the
Termination Date, Associate's participation in such compensation and
benefit plans and programs will be on terms no less favorable than in
effect as of the effective date of this Agreement. Furthermore, the
Company and Associate agree that after his Termination Date he will not
become entitled to any increased benefits under such compensation and
benefit plans and programs, but the benefits payable by the Company to
Associate thereunder shall be based upon his length of service and
compensation level as of the Termination Date.
3. Consideration.
X. Xxxxxxxxx Payments. Following the Termination Date, and for a
period of thirty-six (36) consecutive months commencing April 1, 1998 and
ending on March 31, 2001 (the "Severance Period"), Associate will receive
severance payments equal to $17,666.67 per month. Payment will be made
on the 15th day of each such month, commencing April 15, 1998. Such
payments, based on Associate's current base salary, are in addition to
anything of value to which Associate is already entitled or provided
pursuant to this Agreement, any other agreement between the Parties or
other Company plan or program. Moreover, such severance payments are not
intended to include any unused, accrued vacation time to which Associate
may be entitled or any other accrued but unpaid compensation or benefit
to which Associate may be entitled under any Company compensation or
benefit plan or program.
B. Stock Options. Upon the Termination Date, the Company will
promptly deliver to Associate appropriate amendments to Associate's
Certificates of Grant relating to the Company's 1984 and 1991 Stock
Option Plans providing that the options under such plans shall be
exercisable by the Associate or his guardian or legal representative(s)
during the three-year period following his termination of employment as
to the additional number of shares of the Company's common stock, par
value $.125 per share, which the Associate would have become entitled
to purchase during such three-year period if the Associate's employment
had not terminated.
C. Additional Payments. During the Severance Period, Associate
will be paid an additional $2,233.33 each month of said period at the
same time as he is paid the Severance Payments provided for in paragraph
3.A of this Agreement, which additional payments represent the
Associate's present car allowance ($1,400 per month), plus Associate's
present annual $5,000. medical supplementary bonus and annual $5,000
financial planning bonus converted for those purposes to a monthly rate
($833.33 per month).
D. Bonus. In the event that the criteria are met for a bonus award
to Associate under (i) the 1997 Management Incentive Plan, Associate will
be paid the bonus award by March 15, 1998, and (ii) the 1998 Management
Incentive Plan, Associate will be paid the pro-rata portion of the bonus
award (for January, February and March of 1998) by March 15, 1999.
E. Insurance. Associate will continue to be covered by the group
medical insurance coverage as set forth in the Stanhome Group Insurance
Plan booklet dated December, 1994 (the "Plan") under the policy issued by
Connecticut General Life Insurance Company (Policy #2232182) regardless
of the location of Associate's eventual residence within the United
States and regardless of his coverage by any other medical insurance
plans. Should the Plan be terminated in the future, the Company and its
successors and assigns, as applicable, agree to provide Associate with
coverage that is substantially the same as provided in the Plan.
Associate's coverage will cease when he qualifies for Medicare.
Dependent coverage will be continued as to his spouse until Associate's
spouse qualifies for Medicare and as to his other dependents until that
dependent reaches age 23. However, if coverage has not otherwise already
ended, then coverage shall end for Associate's spouse and other
dependents when Associate reaches his 71st birthday or, in the event of
Associate's death before he reaches age 71, the date when Associate would
have reached his 71st birthday, it being intended that coverage for
Associate's spouse and other dependents shall continue until the date
when Associate would have reached his 71st birthday.
During the Severance Period, the Company, its successors and assigns,
will contribute 80% of the cost of the personal and dependent coverage and
Associate will contribute 20% of such cost, which percentages shall be
adjusted as necessary to be the same percentages as may be in effect for
the cost of medical coverage of active employees of the Company and its
successors and assigns. Upon expiration of the Severance Period, the
Company and its successors and assigns, as applicable, will contribute up
to $400 per month towards the cost of Associate's personal and dependent
coverage. Once the cost to Associate of the personal and dependent
coverage exceeds $400 per month, the Company will share with him equally
the increase in cost over that amount on a 50/50 basis. The continued
medical coverage, as set forth in the Plan and the guaranteed
contributions outlined above toward both personal coverage and dependent
coverage, is binding upon and may not be revoked by the Company or any of
its successors or assigns and will continue until coverage ceases as
outlined above provided that Associate has paid his portion of the
premium. In the event that Associate fails to pay his portion of the
premium on time, the Company will pay the full premium and notify
Associate of his failure to make timely payment. Associate shall have ten
(10) days from his receipt of such notice to cure his failure to pay by
repaying to the Company the amount advanced by the Company on his behalf,
and the Company shall not allow his insurance coverage to be cancelled or
to lapse until such ten-day period shall have expired.
The Company, its successors and assigns, shall continue to provide at
its sole expense the life insurance ($424,000 Death Benefit) and
accidental death and dismemberment employee insurance coverage, as
presently in effect, to the Associate during the Severance Period.
The Termination Date shall be treated as an event under the
Consolidated Budget Reconciliation Act of 1985 (COBRA), and Associate will
receive COBRA information under separate cover.
F. Outplacement. The Company also will provide Associate with
outplacement services as mutually agreed upon between the Parties,
provided such outplacement services commence within 12 months following
the Termination Date.
G. Moving Expenses. The Company shall reimburse Associate for
relocation expenses in accordance with present Company Relocation
Guidelines issued September, 1996, incurred by Associate within eighteen
months of the Termination Date unless such expenses are reimbursed to
Associate by a new employer, if any.
H. References. The Company will provide references for Associate in
accordance with its policy.
I. Taxes. Applicable taxes on all payments, transfers and other
consideration referred to herein will be the sole responsibility of
Associate, provided that the Company shall deduct applicable federal and
state withholding income taxes on the payments provided herein.
J. Vacation and Vacation Pay. Any accrued, unused vacation for
calendar year 1998 will be paid to Associate in a lump sum on the
Termination Date. It is agreed that in addition to the four weeks of
vacation accrued for 1998 as of January 1, 1998, Associate will be
entitled also to a paid vacation commencing March 16, 1998 and continuing
through March 31, 1998.
4. Retirement Agreement and Qualified Pension Plan. The Retirement
Agreement between the Parties entered into on June 5, 1997, as amended
December 15, 1997, shall remain in full force and effect, and the
retirement benefit to which Associate is entitled to receive pursuant to
that agreement shall be calculated in accordance with the methodology
illustrated in a memorandum from G. W. Tower to Associate dated June 5,
1997 and attached hereto as Appendix A. In addition, Associate's benefits
from the Qualified Pension Plan and Supplemental Pension Plan shall be
based upon the methodology illustrated in a memorandum from G. W. Tower to
Associate dated July 21, 1997 and attached hereto as Appendix B. It is
agreed that Associate's termination under this Agreement is an involuntary
termination without cause under Paragraph 2(b) of said Retirement
Agreement and also under said Qualified Pension Plan and Supplemental
Pension Plan.
5. Release.
A. From Associate to the Company. In exchange for the compensation
described in Paragraph 2 and other good and valuable consideration,
Associate hereby agrees that he, his representatives, heirs, executors,
administrators, agents, estate, successors and assigns release and forever
discharge the Company and its affiliates and their successors,
predecessors, assigns, directors, shareholders, officers, employees and/or
agents, both individually and in their official capacities with the
Company and/or its affiliates from any and all actions, causes of action,
suits, claims, demands, obligations, costs, judgments, complaints,
contracts, agreements, promises, debts, damages, and liabilities of
whatever kind or nature, at law, in equity or otherwise, whether existing
or contingent, known or unknown, relating to any matter, cause, or thing
whatsoever arising on or prior to the date of this Agreement, including
but not limited to rights or claims relating in any way to Associate's
employment with or his termination of employment from the Company,
including but not limited to claims arising under common law, contract,
implied contract, public policy, tort, personal injury, or any federal,
state or local statute, law, constitution, ordinance, regulation or order,
including but not limited to the Age Discrimination in Employment Act, as
amended, 29 U.S.C. Section 621, et seq., Title VII of the Civil Rights
Act, The Americans with Disabilities Act, The Massachusetts Fair
Employment Practices Act and/or any other applicable employment related
federal, state or local statute, law, ordinance, regulation or order;
provided, however, that nothing contained in this Paragraph 5 shall limit
Associate's right to enforce the terms or xxx for breach of (i) this
Agreement, any agreement listed in Paragraph 2 of this Agreement, or any
other agreement whatsoever unrelated to compensation and severance matters
between the Parties hereto whether or not such agreement is listed in
Paragraph 2 of this Agreement, (ii) any compensation or benefit plan or
program in which he remains a participant or beneficiary beyond the
Termination Date in accordance with the provisions of Paragraph 2, or
(iii) Associate's right to indemnification as an officer or director of
the Company and/or its affiliates. This release is intended by Associate
to be a general release as to the claims described herein.
B. From the Company to Associate. In exchange for Associate's
release of the Company and the covenants made by Associate in Paragraph 9
hereof, the Company hereby agrees that it and its affiliates and
subsidiaries, and their successors, predecessors, assigns, directors,
shareholders, officers, employees and agents, both individually and in
their official capacities with the Company and its affiliates, attorneys,
and agents release and forever discharge Associate, his representatives,
heirs, executors, administrators, agents, attorneys, estate, successors
and assigns, from any and all actions, causes of action, suits, claims,
demands, obligations, costs, judgments, complaints, contracts, agreements,
promises, debts, damages and liabilities of whatever kind or nature, at
law, in equity or otherwise, whether existing or contingent, known or
unknown, relating to any matter, cause, or thing whatsoever arising on or
prior to the date of this Agreement, including but not limited to rights
or claims relating in any way to Associate's employment with or his
termination of employment from the Company or his representation of the
Company in his capacity as legal counsel, provided, however, that nothing
contained in this Paragraph 5 shall limit the Company's right to enforce
the terms or xxx for breach of (i) this Agreement, any agreement listed in
Paragraph 2 of this Agreement, or any other agreement whatsoever unrelated
to compensation and severance matters between the Parties hereto whether
or not such agreement is listed in Paragraph 2 of this Agreement, or (ii)
any compensation or benefit plan or program in which he remains a
participant or beneficiary beyond the Termination Date in accordance with
the provisions of Paragraph 2. This release is intended by the Company to
be a general release as to the claims described herein.
6. Indemnification. To the extent that Associate is not otherwise
indemnified under a Company by-law or insurance policy, the Company will
indemnify and hold harmless Associate against all liabilities and
expenses, including amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and counsel fees, reasonably
incurred by Associate in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, in which
Associate may be involved or which Associate may be threatened arising out
of actions taken by Associate in his capacity as an officer, director,
employee, agent, representative of, or legal counsel to, the Company or a
direct or indirect subsidiary of the Company or, at the Company's request,
another organization, or in any capacity with any employee benefit plan of
the Company, or such a subsidiary or organization, or in connection with
the prosecution of any action, suit or proceeding, whether civil or
criminal, in which Associate may be acting for or on behalf of the
Company, with the exception of actions by him with respect to which a
court of competent jurisdiction determines that Associate did not act in
good faith in the reasonable belief that his action was in the best
interest of the Company, or to the extent such claim relates to his
service with respect to an employee benefit plan, in the best interests of
the participants or beneficiaries of such employee benefit plan, without
regard of the date when such claim is brought. Expenses, including
without limitation counsel fees, reasonably incurred by Associate in
connection with the defense or disposition of any such action, suit or
other proceeding shall be paid from time to time by the Company in advance
of the final disposition thereof upon receipt of an undertaking by
Associate to repay to the Company the amounts previously advanced if it
shall be adjudicated that indemnification for such expenses is not
authorized hereunder.
7. Waiver of Rights and Claims Under the Age Discrimination in
Employment Act, as Amended. Associate has been informed that because he
is over 40 years of age, he has or might have specific rights and/or
claims under the Age Discrimination in Employment Act, as amended. In
consideration for the compensation described hereunder, Associate
specifically waives such rights and/or claims to the extent that such
rights and/or claims arose prior to the date this Agreement was executed.
Associate acknowledges that he has been provided such information or
materials as is required by law in connection with this waiver.
8. Company Files, Documents and Other Property. Associate warrants
that he will return to the Company upon its request all keys or other
items, including all Company files, reports, books, data and documents,
that are in his possession or control and that are the property of the
Company and not his personal files, reports, books, data and documents.
9. Representations.
A. Associate is hereby advised by the Company to consult with an
attorney prior to executing this Agreement.
B. Associate was further advised, when he was presented with this
Agreement on or before January 27, 1998 that he had at least 45 days
within which to consider the Agreement, until the close of business on
March 13, 1998.
C. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, without giving effect
to the principles of conflicts of law thereof.
D. The terms of this Agreement are contractual in nature and not a
mere recital. Captions herein are inserted for convenience, do not
constitute a part of this Agreement, and shall not be admissible for the
purpose of proving the intent of the parties.
E. Associate represents that he has read this Agreement, fully
understands the terms and conditions of such Agreement, and is knowingly
and voluntarily executing the same without any duress or undue influence.
10. Resignations and Stock Transfers. Upon the Termination Date,
Associate agrees to (i) resign from any position held by him with the
Company or any direct or indirect affiliated company or organization,
including but not limited to positions as an officer, director, committee
member, or any other position, (ii) take any action necessary to transfer
shares of stock held in his name or for his benefit on behalf of the
Company in any direct or indirect affiliate of the Company, as requested
by the Company, to the Company or a designee of the Company, and (iii)
take any action and execute anything as may be necessary to accomplish the
foregoing.
11. Change in Control. Associate's Change in Control Agreement
effective as of January 1, 1992 (the "Change in Control Agreement") shall
remain in effect up to and including the Termination Date, and subsequent
to the Termination Date in the event that an agreement with the Company to
effectuate a Change in Control, as defined in the Change of Control
Agreement, is entered into prior to the Termination Date. It is agreed
that Associate's termination under this Agreement is (i) for reasons other
than those set forth under Paragraphs 1(a) and 1(b) of the Change in
Control Agreement and (ii) at the direction of the person (as defined in
Paragraph 4(a)(i) of the Change in Control Agreement) who has entered into
such an agreement with the Company to effectuate such a Change in Control
as described under and subject to said Paragraph 1(b). To the extent that
any payments made to Associate under the Change in Control Agreement are
made for the same purpose as the severance amounts specified above in
Paragraphs 3.A and 3.D (without giving effect to the Gross-Up Payment in
Paragraph 1(c) of the Change in Control Agreement for these purposes),
such Change in Control payments shall be in substitution for such
severance amounts except to the extent that any bonus shall be due and
payable with respect to any year preceding that in which the Change in
Control occurs. To the extent the amounts specified in Paragraphs 3.A and
3.D are greater than those paid under the Change in Control Agreement, the
amount by which such amounts and benefits in Paragraphs 3.A and 3.D exceed
the amounts paid under the Change in Control Agreement shall be paid in
accordance with the terms of this Agreement. If Associate is paid all
amounts due him under the Change in Control Agreement in the event of a
Change in Control, then Associate shall not be paid any amounts due him
under Paragraph 3.C for the remaining term of this Agreement.
If a Change in Control, as defined in the Change in Control
Agreement, occurs after the Termination Date, the payments to be made to
Associate under Paragraphs 3.A, 3.C and 3.D shall be paid in a lump sum
upon the occurrence of such Change in Control.
If any of the payments and benefits under this Agreement are subject
to the Excise Tax imposed under Section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code") (the "Excise Tax"), such payments and
benefits shall be deemed to be "...other payments or benefits received or
to be received by the Employee in connection with a Change of Control or
the Employee's termination of employment..." under Paragraph 1(c) of the
Change of Control Agreement and the Company shall pay Associate the Gross-
Up Payment as shall be determined in accordance with said Paragraph 1(c)
as if it had remained in effect.
Except as provided under this paragraph, all amounts and benefits to
be paid or provided under this Agreement shall be so paid or provided as
set forth herein without regard to the Change in Control Agreement.
12. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of any successor or assigns of the Company, and any such
successor or assign shall be deemed substituted for the Company under the
terms of this Agreement, and as a condition thereof, such successor and
assign shall expressly assume in writing the rights, duties and
obligations of the Company. As used in the Agreement, the term "successor
or assign" or "successors or assigns" shall include any person, firm,
corporation, or other entity which at any time, whether by merger,
consolidation, purchase, or otherwise, acquires all or substantially all
of the assets, capital stock or business of the Company. The rights and
obligations of Associate under this Agreement, including his right to
exercise vested stock options, shall inure to the benefit of, be binding
upon, be exercisable by and be enforceable by Associate's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Associate should die while any
amount would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to his devisee, legatee or
other designee or if there is no such designee, to his estate.
13. Amendment or Modification. This Agreement may not be amended,
modified, altered or changed except upon written consent of the Parties.
14. Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other
provisions but the obligation to be fulfilled under such invalid or
unenforceable provision shall automatically be reduced to the limit of
validity or enforceability prescribed by law, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provision
were omitted.
15. Validity. If any of the provision of this Agreement are
declared or determined by any court of competent jurisdiction to be
illegal, invalid or inoperative, such determination shall not affect the
validity or efficacy of the remaining parts, terms or provisions of this
Agreement and any such illegal, invalid or inoperative part, term or
provision shall be deemed severable and not to be a part of this
Agreement.
16. Waiver. No waiver of any provision of this Agreement shall be
effective unless made in writing and signed by the waiving party. The
waiver of any breach of this Agreement by either party or the failure of
either party to require the performance of any term or obligation of this
Agreement, in whole or in part, in any one instance shall not constitute a
waiver of or prevent any subsequent enforcement of such term or obligation
in another instance or be deemed a waiver of any subsequent breach.
17. Entire Agreement. Associate and the Company agree that this
Agreement contains and constitutes the entire understanding and agreement
between the Parties hereto respecting the terms of Associate's termination
from the Company and supersedes and cancels the Severance Agreement
effective as of June 1, 1992, as well as all previous written or verbal
negotiations, agreements, commitments, and writings in connection with
severance or compensation arrangements, including the Letter Agreement
dated June 16, 1997, between Associate and the Company, and Addendum to
such Letter Agreement dated September 15, 1997 regarding Retiree Medical
Insurance. This Agreement expressly does not supersede or cancel the
Retirement Agreement, a certain Change of Control Agreement effective
January 1, 1992, any compensation and benefit agreements, plans and
programs listed in Paragraph 2 of this Agreement or any other agreements
whether or not listed in Paragraph 2 of this Agreement not referred to in
the preceding sentence.
18. Execution. This Agreement may be executed in two or more
duplicate counterparts, each of which shall be treated as an original, but
all of which together shall constitute one and the same instrument, and in
pleading or proving any provision of this Agreement it shall not be
necessary to produce more than one such counterpart.
19. Notice. Any notice required under this Agreement shall be in
writing and shall be delivered by certified mail, return receipt
requested, overnight delivery or telecopy to the following addresses:
a. All notices to Associate shall be addressed to him as follows:
Xx. Xxxxx X. Xxxxx
00 Xxxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
b. All notices to the Company shall be addressed to it as follows:
Xx. Xxxxx X. Xxxxxxxxx
Vice Chairman, Executive Vice President,
Chief Administrative and Financial Officer
Stanhome Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Either Party may change the address to which notices are to be sent
by providing notice in writing to the other Party in accordance with the
terms hereof.
20. Effective Date. Associate may revoke this Agreement for a
period of seven (7) days following its execution by him, and the Agreement
shall not become effective or enforceable until the date upon which this
revocation period has expired (the "Effective Date"). If the Effective
Date is later than the Termination Date, all payments that would have been
made prior to such date shall be paid as of the Effective Date.
Executed this 28th day of January, 1998.
/s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
STANHOME INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxx
Vice Chairman, Executive Vice President,
Chief Administrative & Financial Officer
