EXHIBIT (10)(n)
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EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of this 18th day of January, 1999 by and
between MINE SAFETY APPLIANCES COMPANY, a Pennsylvania corporation ("Company")
and XXXXX X. XXXXXXX ("Employee").
RECITAL:
Simultaneously with the execution of this Agreement, Employee will
enter into an Employment Agreement with the Company, under which Employee, as
President of MSA Europe, will devote 35% of his time, to the operations of
Auergesellschaft GmbH ("XXXX"), (the "XXXX Agreement").
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties agree as follows:
(1) Duties and Term. The Company hereby agrees to employ Employee,
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and Employee agrees to be so employed, in the capacity of President, MSA Europe
for a term effective as of January 18, 1999 and terminating December 31, 2001
(the "Initial Term") unless terminated earlier pursuant to Section 11 of this
Agreement. At the end of the Initial Term, Employer may continue Employee's
employment with the Company on terms as are mutually agreeable by Employee and
Company.
Employee shall diligently devote 65% of his best efforts, time and
attention outside of Germany in all matters
concerning the operations of the Company's non-German European affiliates.
Employee will be a member of the Company's Strategic Planning Committee that
meets periodically, usually in the United States. At the next meeting of the
Board of Directors, the Chairman of the Company will nominate Employee for
election as a Vice President of the Company subject to the approval of said
Board.
(2) Supervision and Place of Employment. Employee shall at all times
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discharge his duties in consultation with, and under the supervision of the
Chairman and Chief Executive Officer of the Company. Employee shall be based at
the principal offices of MSA Europe (currently in Berlin) and shall have his
principal residence within the metropolitan area of Berlin. Employee
understands that he will be required to travel to the United States and to the
offices and business locations of the Company's non-German European affiliates.
(3) Salary, Benefits, Variable Compensation and Stock Compensation.
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(a) Base Salary. Employee shall receive an annual salary of
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$162,500, payable pursuant to the then current payroll practices of the Company.
The Employee's base salary paid by the Company pursuant to this paragraph 3(a)
shall be allocated to the Company and to the Company's non-German European
affiliates. Employee will be entitled to annual salary reviews similar to the
annual review policies of the Company for other executives. If, during the term
of this Agreement, Employee shall become so disabled as to be unable to perform
his regular duties on a full-time basis, he shall continue to receive, for a
period of six (6) months from the date the disability commences the salary he
was receiving immediately prior to such disability. If any such disability
continues for
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more than six (6) months, Employee shall not be entitled to any further salary
or benefits (except for long-term disability benefits of Company in effect at
such time), and Company shall have the right to terminate this Agreement and
Employee's employment hereunder upon written notice to Employee.
(b) Variable Compensation. Beginning with the 1999 variable
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compensation plan year (the "1999 Plan Year") for MSA Europe and for each year
thereafter during the term of this Agreement, Employee will be eligible for
variable compensation under the Company's annual bonus policy administered by
the Compensation Committee of its Board of Directors (the "Committee"). The
determination of the amount of Employee's annual bonus is subject to the sole
discretion of the Committee and will be made by the Committee taking into
consideration the income of the Company's European affiliates and evaluation of
Employee's individual performance. The target level used for Employee's
position is 30% of his median market level which is equal to his salary under
this Agreement plus his salary under the XXXX Agreement ("annual par bonus").
For the 1999 Plan Year, Employee shall be guaranteed a payment under the annual
bonus plan of at least one-half of the amount of his annual par bonus. Thirty-
five (35%) percent of the amount paid to Employee under this paragraph 3(b)
shall be considered to be payment for services to XXXX and shall be paid by XXXX
and treated as compensation to Employee in Germany. The remaining 65% shall be
allocated to the Company and to the Company's non-German European affiliates.
Under the variable compensation plan of the Company, payments are normally made
to the Employee during March of the year following the variable compensation
plan year for which the annual bonus is earned.
(c) Stock-based Compensation. Beginning with awards made in the year
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2000, Employee shall be eligible for awards having an annual par value of
$54,000 for stock options
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and $54,000 for restricted stock awarded under the Company's 1998 Management
Share Incentive Plan ("MSIP"), subject to adjustments upward or downward based
on Employee's personal performance factor. The number of shares awarded under
the MSIP shall be determined under the valuation methods established by the
Committee. No stock compensation has been earned by the Employee for 1998 awards
to be made by the Committee at its meeting in March, 1999. Any stock awards to
Employee under the MSIP are subject to the sole discretion of the Committee.
(4) Vacation. Employee shall be entitled to 13 days of paid vacation
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during each year of the term of this Agreement.
(5) Reimbursement for Expenses. The Company shall reimburse Employee
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for all reasonable and necessary expenses incurred in carrying out his duties
and responsibilities under this Agreement. Employee shall present to the
Company from time to time an itemized account of such expenses required by the
Company. Employee shall keep a diary of the time spent with respect to the
operations of the Company and each of its European affiliates and present a copy
of such diary to the Company at least quarter-annually.
(6) Tax Return Services. Company shall reimburse Employee for his
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reasonable costs for the preparation of any tax return required to be filed in
the United States.
(7) Inventions.
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(a) Any and all inventions and discoveries, whether or not
patentable, which Employee may have made or may make, either alone or in
conjunction with others, during the term of his employment hereunder relating or
in any way appertaining to or connected with any of the assets or
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operations of Company or any of its subsidiaries or matters which are, or may
during the term of his employment become, the subject of its business or
investigation, shall be promptly and fully disclosed to Company or and to the
extent of Employee's interest therein shall be the sole and exclusive property
of Company.
(b) Whenever requested to do so and at the Company's sole cost
and expense, Employee shall testify in any proceeding or suit, and promptly
execute and assign any and all applications, assignments or other instruments
which the Company shall deem necessary in order to apply for, obtain or protect
letters patent of foreign countries for said inventions or discoveries, and, in
order to assign and convey to Company the sole and exclusive right, title and
interest in and to said inventions, discoveries or any applications or patents
thereon.
(c) This Section (7) shall survive the termination of this
Agreement.
(8) Confidential Information/Non-competition.
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(a) During the term of his employment and thereafter, Employee
shall keep secret and confidential all secret and confidential information
received by him prior to or during the course of his employment ("Confidential
Information"), including, but not limited to, trade secrets, know-how, designs,
plans, blueprints, trademarks, copyrights, patents, patent applications,
manufacturing processes, lists of customers, suppliers of jobs, bidding and
contract information and any other proprietary commercial information of
Company, except to the extent that the information is now or hereafter becomes
available (other than through him) as public knowledge or literature, patented
or otherwise. Employee confirms that all Confidential Information is the
exclusive property of Company.
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(b) Employee shall deliver to Company promptly at the
termination of his employment or at any other time Company may request, all
memoranda, notes, records, sketches, plans or other documents wholly or partly
made or compiled by or delivered to Employee and which are in his possession or
under his control concerning costs, uses, applications or purchasers of products
made or sold by Company or any of its subsidiaries, or any product, apparatus,
process, formula or method used, developed, produced or investigated by it
during his employment hereunder.
(c) (i) Employee shall not for a period of one (1) year after
termination of employment with Company engage directly or indirectly, whether as
principal, agent, officer, director, employee, consultant or otherwise, in a
COMPETING ACTIVITY. COMPETING ACTIVITY means a work or activity directed to the
development, manufacture, sale or rental of a product, process or service which
is competitive with or similar to any product, process or service of Company on
which Employee worked during the last one (1) year of employment by Company, or
about which Employee acquired Confidential Information.
(ii) Employee shall not during his employment or for a period of
one (1) year after termination of employment by Company, solicit, directly or
indirectly, any employee of Company to engage in COMPETING ACTIVITY.
(d) This Section (8) shall survive the termination of this
Agreement.
(9) Employee Benefits.
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(a) Pension. As additional compensation, the Company shall pay
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Employee $30,000 during each year during the
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term of this Agreement in lieu of a pension benefit, reduced by the Company's
annual cost for medical and dental coverage provided to Employee. The Company's
annual cost for such medical and dental coverage is $3,895 and $528 respectively
for the year 1999, but such cost may change from time to time after 1999.
Commencing in 2000, in each year during Employee's employment in which the
National Consumer Price Index, for the month of July, published by the United
States Bureau of Labor Statistics, shows a rise in cost of living index for
Pittsburgh, Pennsylvania over the level of such cost of living index in July,
1999, the Company shall increase such pension benefit as is proportional to the
rise in such index from its level for July 1999, to its level for July of such
later year. The amount payable to Employee under this Section 9(a) shall be paid
by the Company not later than January 15 of the year following the year to which
the payment relates.
(b) No Other Benefits. Except as contemplated in paragraph 9(a)
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hereof, and except for the benefits listed on Exhibit 1 attached hereto, this
Agreement shall be in lieu of any rights, benefits and privileges to which
Employee may be entitled as an employee of the Company under any retirement,
pension, profit-sharing, savings plan, insurance, disability, hospital or other
plans which may now be in effect or which may hereafter be adopted by the
Company or any of its subsidiaries.
(10) Covenants of Employee. Employee agrees that during the term of
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this Agreement, he will comply with MSA's Policy No. 10-I on Business Ethics -
International, Policy No. 20 on Environmental Law Compliance and Management, and
Policy No. 40 on Antitrust Compliance, all of which are attached as Exhibit 2
hereto.
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(11) Termination of Employment.
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(a) Employee is an employee-at-will and the Company or Employee
may terminate this Agreement by giving sixty (60) days' written notice to the
other party.
(b) Employee may be terminated by the Company for cause (a
"Termination For Cause") by reason of:
(i) Employee's willful breach of any material term of
this Agreement continuing for a period of ten (10) business days after
receipt of written notice thereof,
(ii) The perpetration by Employee of a serious dishonest
act or fraud against the Company, or
(iii) the failure, continuing for ten (10) business days or
more after receipt of notice, to comply with reasonable directives of the
Chairman and Chief Executive Officer of the Company.
(c) In the event of termination of employment for whatever
cause, the Company shall pay Employee the amount of his annual salary, bonus,
stock-based compensation and substitute pension payment under Section 9(a)
prorated to the end of the month in which employment is terminated.
(d) In the event Employee's employment with the Company is
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terminated, for whatever reason except by reason of (i) Employee's voluntary
termination, (ii) Employee's disability which extends for more than six (6)
months, (iii) Employee's death, or (iv) Employee's Termination For Cause,
Employee shall be entitled also to severance compensation equal to one (1)
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year's salary in effect immediately prior to the date of such termination.
(12) Withholdings. All compensation to Employee hereunder shall be
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reduced by all taxes and other charges required to be withheld by the Company
under applicable federal, state and local laws.
(13) Injunction. Employee agrees that a breach on his part of any of
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the terms, provisions and conditions of this Agreement will cause such damage to
Company as will be irreparable and the exact amount of which will be impossible
to ascertain and for that reason agrees that the Company shall be entitled, as a
matter of right, to an injunction from any court of competent jurisdiction,
restraining any threatened or further violation of this Agreement. Such right
to an injunction, however, shall be cumulative, and in addition to whatever
other remedies the Company may have to protect its rights.
(14) Notices. For the purpose of this Agreement, notices and all
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other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, or by prepaid
courier, addressed, if to the Employee, to the address inserted below the
Employee's signature on the final page hereof and, if to the Company, to the
address set forth below, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon actual receipt:
To the Company:
Mine Safety Appliances Company
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XXXX Xxxxxxxxxx Xxxx
000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
ATTENTION: Xx. Xxxx X. Xxxx III
Chairman and Chief Executive Officer
with a copy to
Mine Safety Appliances Company
000 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
ATTENTION: General Counsel
(15) Governing Law. This Agreement shall be construed in accordance
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with the laws of the Commonwealth of Pennsylvania.
(16) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(17) Separability. Each covenant or agreement or portion thereof
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contained in this Agreement shall be independent and separable from all of the
other covenants and agreements or portions thereof contained in this Agreement,
and the invalidity of such covenant or agreement or portion thereof shall in no
way affect the enforceability of any of the other covenants and agreements or
portions thereof.
(18) Amendments and Waivers. This Agreement and the provisions hereof
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may not be terminated, modified, amended or waived orally or by any act or
failure to act, but only by a writing signed by the party to be affected
thereby. Any waiver of any violation of a condition, term or other provision
hereunder shall not constitute a waiver thereof in general or a waiver of any
subsequent violation thereof.
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(19) Cooperation. The parties agree to execute any further
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instruments and to perform any further acts incidental to the performance of
this Agreement or as necessary to carry out its provisions.
(20) Effect Of Agreement. All rights and obligations hereunder shall
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inure to the benefit of and be binding upon the heirs, personal representatives,
permitted assigns, and successors and affiliates of the parties hereto.
(21) Arbitration.
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(a) Subject to the right of the Company to bring an injunction
as provided in Section (13) hereof, if a controversy or claim arises between
Employee and the Company relating to this Agreement, such controversy or claim
shall be fully and finally settled before a panel of three arbitrators appointed
in accordance with the Rules of the American Arbitration Association, pursuant
to its Commercial Arbitration Rules then in effect. The Company and Employee
shall bear the costs of their own counsel and witnesses and the other costs,
which are normally borne solely by a party to arbitration; but otherwise the
Company and Employee shall share equally the charges and fees of the American
Arbitration Association and arbitrators.
(b) Any arbitration pursuant to this Section 21 shall be held
in Pittsburgh, Pennsylvania or at such other place as agreed by the parties.
Pennsylvania law shall be used by the arbitrators in resolving any dispute.
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(c) Any judgment upon the award rendered by the arbitrators
shall be final and binding and may be entered in any court having jurisdiction
thereof.
(22) Service of Process. Employee and the Company irrevocably submit
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themselves to the personal jurisdiction of the courts of the Commonwealth of
Pennsylvania with respect to any action arising out of, or in connection with,
the execution, delivery or performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ATTEST: MINE SAFETY APPLIANCES COMPANY
/s/ Xxxxxx X. Xxxxxx By /s/ Xxxx X. Xxxx III
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Secretary Xxxx X. Xxxx III
Chairman and Chief
Executive Officer
WITNESS: EMPLOYEE
/s/ Xxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
MSA Europe
P. O. Xxx 000
X-00000 Xxxxxx, Xxxxxxx
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Xxxxx X. Xxxxxxx
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EMPLOYMENT AGREEMENT
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EXHIBIT 1
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MSA POLICIES
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Nos 10-I, 20 and 40 attached
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Policy No. 10-I
Effective Date:
11-01-95
Supersedes:
4-19-93
Business Ethics - International
Approved by:
President, Chairman
& CEO
A. Compliance
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1. Laws
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An employee, officer and director (hereinafter collectively
referred to as "associates") of the Company, its divisions and
affiliates (hereinafter collectively referred to as "Company")
shall adhere to the laws of the United States and to those of
other countries in which the Company affiliates operates. Where
conflicts or ambiguities exist in these laws, or more
particularly the regulations issued thereunder, Corporate Law
Department should be consulted for guidance.
2. Honesty
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An associate shall adhere to honest standards and practices in
all business dealings.
3. Accounting
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Established accounting procedures are to be followed at all times
including the recording of all forms of funds or assets of the
Company. No false entries shall be made in the books and records
of the Company for any reason. No payment on behalf of the
Company shall be approved or made with the intention or
understanding that any part of such payment is to be used for any
purpose other than that described by the documents supporting the
payment.
4. Bribes
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Under no circumstances shall any payments, gifts, rendering of
services or any other form of value be directly or indirectly
given by an associate of the Company to any public official,
employees of customers, or employees of suppliers, particularly
to influence the public official's exercise of judgment and
discretion in disposing of matters on behalf of the Government or
to assist the Company in obtaining or retaining business
contracts. Such consideration provided to a member of the
immediate family of a public official are to be considered and
treated as though provided directly to the public official.
5. Audits
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The Company's internal auditors, as well as its independent
public accountants, shall examine the adherence to these policies
as part of their periodic reviews.
6. Appearance of Impropriety
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An associate must avoid actions that might appear improper in
regard to the ethical matters discussed here and in other
corporate policies.
7. Reporting
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The Company shall provide appropriate means for associates to
report violations of this policy.
8. Management Responsibility
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The General Manager shall be responsible for the monitoring of
compliance with these policies in the areas under their
supervision. Any infraction of these policies will subject an
associate to disciplinary action which, depending upon the
seriousness of the violation, may include warning, reprimand,
suspension or dismissal. Any violation of these policies must
reported to the associate's supervisor.
B. Public Responsibility
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1. Civic Obligations
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An associate shall be cognizant of and perform the Company's
obligations to the community.
2. Providing Services
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An associate shall maintain cordial and cooperative relationships
with the community in which operations are based by participating
in community undertakings when appropriate.
C. Conflict of Interest
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1. Freedom from Constraints
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An associate shall be free from any personal influence, interest,
or relationship, or appearance thereof, in situations that might
conflict with the best interests of the Company.
2. Disclosure
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An associate shall fully disclose to the Company any circumstance
that may contravene this policy. Prompt recognition of conflicts
of interest by the associate permits corrective steps to be taken
by the Company.
3. Financial Interests
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An associate or a member of the associates' immediate family may
not have a substantial financial interest in an organization that
has current or prospective dealings with the Company as a
supplier, contractor or customer, or competes directly with the
Company when the associate may be able to influence the dealings
of the Company to benefit the associates' private interests.
4. Acceptance of Gifts or Entertainment
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An associate shall not accept any gifts or entertainment from an
organization having current or prospective dealings with the
Company as a supplier, contractor or customer, if such gifts or
entertainment are of such significance that they could tend to
prevent the associate from acting solely in the best interests of
the Company. Gifts or entertainment provided to a member of the
immediate family of the associate shall be considered and treated
as though provided directly to the associate.
5. Offering of Gifts or Entertainment
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An associate shall not offer any gifts or entertainment to a
current or prospective customer if such gifts or entertainment
are of such significance that acceptance could tend to prevent
the recipient from acting solely in the best interests of the
recipient's organization. Such gifts or entertainment provided
to a member of the immediate family of a customer or its employee
shall be considered and treated as though provided directly to
the customer or its employee.
6. Non-Competition
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An associate shall not receive compensation for services rendered
as an associate or a consultant to another organization or for
services as a director or officer of another organization that
competes directly with the Company or where the other
organization has current or prospective dealings with the Company
that may be influenced by the associate.
7. Employment
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An associate may not accept concurrent employment with another
company if the organization is a competitor or supplier or one
that may become a competitor or supplier in the foreseeable
future.
8. Loans
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An associate or a member of the associate's immediate family may
not borrow money from individuals or organizations that conduct
or may conduct business with the Company, either as a customer or
supplier. This does not apply to public lending institutions,
e.g., banks, savings and loan associations, etc.
D. Code of Ethical Conduct
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The provisions of MSA's Code of Ethical Conduct are included as part
of this Business Ethics Policy. The terms of the Code encompass and
enhance the provisions of the Business Ethics Policy and should be
adhered to as if included in the Business Ethics Policy.
Policy No. 20
Effective Date:
11-01-95
Supersedes:
04-19-93
Approved by:
President, Chairman
& CEO
Environmental Law Compliance and Management
1. Mine Safety Appliances Company, its divisions and affiliates
(hereinafter collectively referred to as the "Company") shall comply
with the letter and spirit of all environmental laws and regulations
and, by its actions, protect public health, public enjoyment and the
world in which we live. Where questions arise concerning these laws,
the Corporate Law Department should be consulted for guidance.
2. The Company shall pledge commitment and support for a strong
environmental management program.
3. The Company shall minimize the production of waste, effluents and
emissions and recycle wastes after minimization efforts.
4. The Company shall reduce environmental risks and future liabilities.
5. The Company shall design, operate and maintain each plant consistent
with the Company's environmental objectives.
6. The Company shall charge plant management with responsibility for the
environmental performance of its plants and operations.
7. The Company shall charge the corporate environmental protection staff
with the responsibility for providing the leadership necessary to
implement these policies.
8. The Company shall assure that its associates understand their
responsibilities and the actions that are necessary to achieve
compliance and to protect the environment.
9. The Company shall make the necessary expenditures to implement these
policies.
10. The Company shall continually evaluate, enhance and communicate the
Company's Environmental Law Compliance and Management Policy.
Policy No. 40
Effective Date:
11-01-95
Supersedes:
04-19-93
Approved by:
President, Chairman
& CEO
Antitrust Compliance
1. Mine Safety Appliances Company, its divisions and affiliates
(hereinafter collectively referred to as the "Company") shall comply
with the letter and spirit of all antitrust laws of the nations,
states, provinces and communities in which the Company operates in the
course of conduct of its business. Where questions arise concerning
these laws, the Corporate Law Department should be consulted for
guidance.
2. The Company shall forbid collusion or conspiring with competitors or
distributors of products sold by the Company whereby prices are fixed
and controlled to any class or type of customer or organization.
3. The Company shall forbid unfair or deceptive trade practices.
4. The Company shall avoid any actions with competitors or distributors
that may give an impression of improper conduct.
5. The Company shall forbid resale price maintenance.
6. The Company shall forbid price discrimination.
7. The Company shall forbid contract bid rigging.
8. The Company shall forbid the initiation of any predatory pricing or
business practices.
9. The Company shall strive to meet each competitive situation as it
develops in conducting its business.
10. The Company shall evaluate for appointment all potential distributors
and other organizations that may resell the Company's products and
will treat those distributors and organizations that are appointed by
the Company in an equal and fair manner according to the marketing
plans established by the Company.
11. The Company shall provide proper antitrust training for all associates
who have responsibility for the sale of the Company's products and the
organization of the Company's sales channels.
12. The Company shall continually enhance, evaluate and communicate its
Antitrust Compliance Policy.
