EXHIBIT 10.1
Execution Copy
MUTUAL SEVERANCE AGREEMENT
This MUTUAL SEVERANCE AGREEMENT (the "Agreement") is entered into as of
November 26, 2004 among XXXX X. XXXXXXXX ("Executive") and XXXXXXX & XXXXX
EUROPE AG, a Swiss company ("Employer"), and XXXXXXX & XXXXX, INC., an Ohio
corporation ("R&M Parent"), under the following circumstances:
A. Executive is an officer and employee of Employer and has been an
officer of R&M Parent;
B. Employer is an indirect, wholly-owned subsidiary of R&M Parent;
and
C. Executive is leaving his employment with Employer and resigning
all of his offices with Employer and any other direct or indirect
subsidiary of R&M Parent, and Executive, Employer and R&M Parent desire in
this Agreement to set forth the terms and conditions upon which such
events will occur;
NOW, THEREFORE, EXECUTIVE AND EMPLOYER AND R&M PARENT AGREE AS FOLLOWS:
1. EMPLOYMENT SEPARATION. Executive hereby resigns his positions as an
officer and director of Employer effective November 26, 2004. R&M Parent removed
Executive as an officer of R&M Parent on October 5, 2004. Notwithstanding such
resignation of offices, Executive shall continue as an employee of Employer
until November 30, 2004 and will continue to receive his salary and current
benefits until November 30, 2004 although he will not report for work or engage
in any activities on behalf of Employer after November 26, 2004. Part I of
Schedule A, attached hereto and made a part of this Agreement ("Schedule A"),
sets forth as of November 26, 2004, the amount of Executive's salary and current
benefits that remain to be paid for his services through November 30, 2004. At
the close of business on November 30, 2004, Executive's employment with Employer
will terminate (the "Severance Date"). "Subsidiaries" when used hereinafter
shall mean and include Employer and any and all direct or indirect Subsidiaries
of R&M Parent. Executive hereby resigns, effective November 26, 2004, any and
all positions as a director or officer that he may have with any of the
Subsidiaries, including but not limited to those listed in Part II of Schedule
A. Executive agrees to execute any letter of resignation or other document that
may be necessary or appropriate to evidence his resignation as a director or
officer of any of the Subsidiaries.
2. SEVERANCE AMOUNT. In compensation for the gap in Executive's pension
entitlement under the Winterthur Columna pension plan No. 1/83128 established by
Employer (the "Winterthur Columna Plan"), Employer shall pay a lump sum amount
equal to EUR 530,000
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(in words Euro five hundred thirty thousand) (the "Severance Amount") to
Executive. Employer and Executive intend the Severance Amount to compensate in
part for the gap in pension contributions as a result of Executive's loss of
office and early retirement on the Severance Date. The Severance Amount shall be
paid by Employer as follows: (i) an amount of EUR 193,000 (in words Euro one
hundred ninety three thousand) shall be paid on November 30, 2004 into
Executive's bank account that has been most recently used for crediting
Executive's salary payments; (ii) an amount of EUR 72,000 (in words Euro seventy
two thousand) shall be paid directly to Executive's pension account under the
Winterthur Columna Plan by November 30, 2004, as more specifically provided in
the last sentence of this paragraph; and (iii) an amount of EUR 265,000 (in
words Euro two hundred sixty five thousand) shall be paid to Executive on May
31, 2005 to the same bank account of Executive used for the EUR 193,000 payment.
Employer and Executive intend the EUR 72,000 payment to the account of Executive
under the Winterthur Columna Plan provided for in the preceding sentence to
compensate in part for the pension gap due Executive's early retirement on the
Severance Date and loss of future benefits from continued employment with
Employer; and in case that such EUR 72,000 payment can not be made in full to
the account of Executive under the Winterthur Columna Plan, the amount shall be
paid directly to Executive.
3. STOCK OPTIONS. Part III of Schedule A lists options held by Executive
that are currently exercisable (the "Executive Options"). Any or all of the
Executive Options may be exercised at any time on or prior to November 30, 2005
provided the date of exercise is not more than ten years from the date the
option was granted.
4. OTHER BENEFITS.
A. HOUSING. Employer currently leases the rental unit at Xxxxxxxxxxxxxx
00, Xx-0000 Xxxxxxx, Xxxxxx, Xxxxxxxxxxx (the "Rental House ") that is occupied
by Executive from the lessor Xxxxxxxx Grundstucke (the "Lessor"). Employer pays
CHF 10,925 per month to the landlord of the Rental House and Executive pays the
balance of the monthly rental. Employer shall continue to pay for the Rental
House CHF 10,925 per month until May 31, 2005.
Effective June 1, 2005, Executive shall assume the lease for Rental House
(the "Lease") with all rights and obligations under the lease contract. In
particular, Executive has the obligation to properly refurbish Rental House when
finally moving out as required under the lease contract. This transaction
requires the consent of Lessor which has been granted. There is agreement that
Employer shall transfer the deposit of CHF 30.000 for refurbishment purposes of
Rental House which is part of the Lease, to Executive at the same time. In
connection with the assumption of the Lease, Employer shall be released from any
obligation under the Lease. Employer and Lessor shall conclude a separate
agreement about the transfer of the Lease and the deposit substantially in
accordance with Lessor's draft which will be signed by December 15, 2004.
B. AUTOMOBILE. Pfaudler Werke GmbH, Schwetzingen, Germany ("PWG"), an
indirect subsidiary of R&M Parent, currently leases a Mercedes-Benz S320 CDI
(the
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"Automobile") under a lease between Mercedes-Benz Leasing XxxX, Xxxxxxxxx/X.,
xxx XXX, Xxxxxxxx Xx. 000000, dated December 18, 2000 and Amendment Contract
dated January 12, 2001, that expires on April 30, 2005 (the "Automobile Lease").
For the period beginning December 1, 2004 and ending April 30, 2005, Employer
shall pay the following costs associated with the Automobile Lease: (i) the
monthly leasing rental of EUR 1,039.71 and (ii) the charges for insurance and
taxes through April 30 2005. All other costs associated with the Automobile
Lease for periods after November 30, 2004 shall be paid by Executive. It shall
be Executive's responsibility to return the Automobile in good condition,
reasonable wear and tear excepted, to Employer or its designee on the
termination date of the Automobile Lease. If at the end of the Automobile Lease,
PWG determines to sell the Automobile to a person other than R&M Parent or a
Subsidiary, R&M Parent shall cause PWG to advise Executive in writing that PWG
intends to sell the Automobile and Executive shall be given an opportunity to
bid on purchasing the Automobile.
C. PHONES. Employer agrees to cooperate with Executive in Executive's
efforts to have the telephone numbers presently used by Executive for business
purposes (mobile phone, phone at residence) transferred to Executive effective
December 1, 2004 provided the transfer is permitted under applicable telephone
company rules and Executive bears all of the costs incurred in connection with
any transfer and takes all steps necessary to effect the transfer. Employer
shall bear costs for use of Executive's phone at residence and mobile phone
until November 30, 2004.
D. RIGHT TO INDEMNIFICATION. In the event Executive becomes a party to
or witness or other participant in, or is threatened to be made a party to or
witness or other participant in, any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation by reason of (or arising in
part out of) the fact that Executive is or was an officer, director or employee
of R&M Parent or any of the Subsidiaries, R&M Parent shall, and shall cause each
of its Subsidiaries, to indemnify Executive to the fullest extent permitted by
applicable law as soon as practicable but in any event no later than thirty days
after written demand is presented to R&M Parent against any and all expenses,
judgments, settlements, or other loss arising from or relating to any such
action, suit, proceeding, inquiry or investigation.
E. TAX EQUALIZATION AND TAX SERVICES. R&M Parent hereby agrees that the
terms of the Permanent International Assignment (as defined below) relating to
the tax equalization program and tax services provided shall be applicable for
the tax years 2002, 2003 and until November 30, 2004, if necessary, as
determined by Tax Partner / Ernst & Young. This shall include in particular a
gross up of those benefits under the Permanent International Assignment
considered taxable income in the years 2002, 2003 and until November 30, 2004.
Any taxes that might be due with respect to benefits under the Permanent
International Assignment in 2002, 2003 and until November 30, 2004 shall be paid
by Employer upon properly documented written request of Executive within 30 days
after receipt of such written request.
F. ACCRUED ENTITLEMENTS UNDER DEFERRED COMPENSATION SCHEME OF PFAUDLER
WERKE GmbH. The previously accrued entitlements of Executive under the Deferred
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Compensation Scheme of Pfaudler Werke GmbH, in particular the insurance policies
Nos.: 00019762, 00034658, 00049974 and 00072484 with DBV-Winterthur
Versicherungen, that are due for payment in December 2004 shall remain
unaffected by this Agreement and shall be paid into Executive's designated bank
account without delay.
G. CEASE OF WINTERTHUR COLUMNA PLAN. Winterthur Columna Plan will cease
to exist effective as of December 31, 2004. Executive shall stay in Winterthur
Columna Plan until December 31, 2004.
H. BINDING EFFECT. There is agreement between the contracting parties
that in case Executive should die all outstanding payments and benefits
according to this Agreement shall be paid to Executive's heirs.
5. CONFIDENTIALITY. Executive shall not, without the express written
consent of R&M Parent, at any time while employed by Employer or after the
Severance Date use any Confidential Information of R&M Parent or the
Subsidiaries for any purpose not associated with activities of R&M Parent or the
Subsidiaries, or disseminate or disclose any Confidential Information of R&M
Parent or the Subsidiaries to any person or entity not affiliated with R&M
Parent or the Subsidiaries. As used in this Section, "Confidential Information"
includes, but is not limited to, business systems, manufacturing methods, bills
of materials, formulas, policies, procedures, manuals, promotional materials,
price lists, pricing policies, order forms, contracts, agreements, invoices,
receipts, messages, memoranda, circulars, bulletins, sales records for any
assigned territory, sale and delivery schedules, customer lists, customer files,
customer credit terms and information, any records regarding the solicitation of
orders, past, present or prospective orders to the extent that any of these
items are used by R&M Parent or any of the Subsidiaries, but confidential
information does not include information that (i) is or becomes generally
available to the public other than as a result of a disclosure by Executive or
(i) becomes available to Executive on a nonconfidential basis from a source
other than R&M Parent or a Subsidiary, provided that such source is not known by
Executive to be bound by a confidentiality agreement with or other obligation of
secrecy to R&M Parent or a Subsidiary.
6. RELEASE OF CLAIMS. In consideration of the payments and benefits
provided to Executive under this Agreement, Executive, on behalf of himself, his
heirs, assigns and agents, fully settles, releases, and forever discharges R&M
Parent and each of its Subsidiaries and each of their respective predecessors,
successors, assigns, and affiliates and the present and former officers,
directors, agents, and employees of any of them from any and all claims,
demands, liabilities, costs, attorneys' fees, damages, actions, and causes of
action which he has against any of them. Executive acknowledges and agrees that
the foregoing release covers any and all claims arising out of or related to his
employment, or his termination from employment with the Employer, and claims
arising under the Executive Employment Agreement between R&M Parent and
Executive dated September 1, 2001 and the related Permanent International
Assignment Letter of Understanding bearing the date January 24, 2002 (the
"Permanent
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International Assignment") to the fullest extent possible under applicable law,
but does not cover any claims arising out of a breach of this Agreement.
In consideration of the payments and benefits waived by Executive when
negotiating this Agreement, R&M Parent and Employer and each of their respective
predecessors, successors, assigns, and affiliates and the present and former
officers, directors, agents, and employees of any of them fully settle, release,
and forever discharge Executive on behalf of himself, his heirs, assigns and
agents from any and all claims, demands, liabilities, costs, attorneys' fees,
damages, actions, and causes of action which they have against him. R&M Parent
and Employer and each of their respective predecessors, successors, assigns, and
affiliates and the present and former officers, directors, agents, and employees
of any of them acknowledge and agree that the foregoing release covers any and
all claims arising out of or related to the Executive's employment, or his
termination from employment with the Employer and R&M Parent, and claims by
reasons of (or arising in part out of) the fact that Executive is or was an
officer, director or employee of R&M Parent or of any of the Subsidiaries to the
fullest extent possible under applicable law, but does not cover any claims
arising out of a breach of this Agreement.
R&M Parent guarantees that all claims, demands, liabilities, costs, attorneys'
fees, damages, actions, and causes of action which any of the Subsidiaries and
each of their respective predecessors, successors, assigns, and affiliates and
the present and former officers, directors, agents, and employees of any of them
have against Executive are fully discharged and forever finally settled, to the
fullest extent possible under applicable law, by this Agreement.
7. COOPERATION. Executive agrees that he shall reasonably assist Employer,
R&M Parent or any of the Subsidiaries in any claims or any litigation brought by
or against any of them involving matters occurring during the period of his
employment with Employer or any of the Subsidiaries, including, among other
things, being deposed in litigation proceedings. Employer will reimburse
Executive any reasonable expenses or other costs that he incurs as a result of
providing such assistance.
8. WITHHOLDINGS. Notwithstanding anything to the contrary contained in
this Agreement, Employer and R&M shall be entitled to withhold from any payments
under this Agreement any amounts that either of them is required under
applicable tax or other laws to withhold from the payments being made hereunder.
9. OBLIGATION TO PAY IN ANY EVENT. The payment obligations of R&M Parent
and Employer under this Agreement are joint and several, absolute and
unconditional and not subject to any set off or reduction, except as expressly
stated in Section 8 or involving a claim that Executive failed to assume the
Lease as contemplated in Section 4(A). In the event that R&M Parent or Employer
shall have a claim against Executive that claim shall not be asserted as a
set-off or basis for not making any required payment under this Agreement. In
the event that R&M Parent or Employer withholds a payment under this Agreement
other than in accordance with Section 8 and Executive incurs any costs or
expenses, including attorney's fees
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in collecting such withheld payment, R&M Parent shall be liable for all such
costs and expenses incurred by Executive.
10. SEVERABILITY. The provisions of this Agreement are severable. If any
provision of this Agreement is determined to be invalid or unenforceable by a
court of competent jurisdiction, the other provisions of this Agreement shall
continue in full force and effect and the voided provision shall be amended, if
permissible, to the extent necessary to render it valid and enforceable. The
contracting parties obligate themselves to replace invalid, illegal or
unenforceable provisions by such valid provisions which come as close as
possible to the economic purposes pursued by the invalid, illegal or
unenforceable provision.
11. GOVERNING LAW. All matters relating to the interpretation,
construction, and enforcement of this Agreement shall be governed by and
construed according to the laws of Germany. This Mutual Severance Agreement is
entered into in order to finally settle differences between the contracting
parties about the Employment Contract and the Permanent International
Assignment. The contracting parties agree that the civil courts of Frankfurt/M.
/ Germany shall have exclusive jurisdiction for any disputes arising from this
Agreement.
12. ACKNOWLEDGMENT. Executive, in connection with his execution of this
Agreement, acknowledges that he has been advised by Employer to consult with an
attorney prior to executing this Agreement, that he has consulted with his own
attorney in advance of signing this Agreement, that he understands the legal and
binding effect of this Agreement, and that he signs this Agreement voluntarily.
13. ENTIRE AGREEMENT. The foregoing terms represent the entire agreement
between Executive and R&M Parent and Employer relating to the cessation of his
employment with Employer and the only consideration for signing this Agreement.
No other promises or agreements of any kind have been made between the parties
to cause them to sign this Agreement.
[The balance of this page is intentionally left blank.]
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14. WRITTEN FORM. Changes of and amendments to this Agreement, including
this Section 14, require written form signed by the contracting parties to be
effective.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date and year first set forth above.
"Executive" "Employer"
XXXXXXX & XXXXX EUROPE AG
/S/ Xxxx X. Xxxxxxxx By /S/ Xxxxx X. Xxxxx
-------------------- ------------------
Xxxx Xxxxxxxx Xxxxx X. Xxxxx
Authorized Officer
"R&M Parent"
XXXXXXX & XXXXX, INC.
By /S/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
President and Chief Executive Officer
#318657 v1
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SCHEDULE A
PART I OF SCHEDULE A
The following is a list of items that remain payable to or on behalf of
Executive for his services through November 30, 2004:
1. Salary payment of CHF 29,520.20 is due and payable on or about November
25, 2004.
2. Education allowance for Executive's child Nicolas in the amount of Euro
4,025.35 that was due in November 2004 to the extent it remains unpaid.
3. Maintenance, fuel, and winter tire change for Executive's automobile
for the period through November 30, 2004 to the extent that it remains unpaid.
4. Annual bonus payment under R&M Parent's cash bonus plan for fiscal year
2004 in the amount of CHF 27,826.11 [1 CHF = 0.8501 USD] due and payable in
November 2004.
PART II OF SCHEDULE A
- Managing Director of Xxxxxxx & Xxxxx Europe AG, Zurich, Switzerland,
- President and CEO of Romaco AG, Volketswil, Switzerland,
- President and CEO of PfaudlerSpiess AG, Rheinfelden, Switzerland,
- Managing Director of Pfaudler Werke GmbH, Schwetzingen, Germany,
- Director of Xxxxxxx & Xxxxx UK Ltd., Leven, Scotland,
- Managing Director of Xxxxxxx & Xxxxx GmbH, Schwetzingen, Germany,
- Director of Tycon Technoglass S.p.A., Quarto d'Altino, Italy,
- Managing Director of Pfaudler France S.a.r.l., Strassbourg, France,
- Director of Romaco S.r.l., Bologna, Italy.
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PART III OF SCHEDULE A
INDIVIDUAL: Xxxx Xxxxxxxx
EXERCISABLE OPTION
DATE OF GRANT SHARES AT 11/26/04 PRICE IN USD
------------- ------------------ ------------
6/26/1996 4,000 22.38
6/24/1997 7,500 35.50
6/23/1998 12,000 24.44
6/22/1999 10,000 25.25
6/27/2000 10,000 20.88
6/26/2001 10,000 27.75
6/25/2002 6,667 25.17
6/24/2003 5,000 19.20
6/24/2004 0 21.77
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