Exhibit 10.12
AGREEMENT, made and entered into as of the 5th day of July, 1996,
between BURLINGTON INDUSTRIES, INC., a Delaware corporation (hereinafter
sometimes referred to as the "Corporation"), party of the first part, and Xxxx
X. Xxxx (hereinafter referred to as "Employee"), party of the second part,
W I T N E S S E T H :
WHEREAS, the Corporation and Employee desire to enter into an Employment
Agreement effective August 5, 1996;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
contained, the Corporation and Employee hereby agree as follows:
l. The Corporation agrees to employ or to cause one or more of its
subsidiary companies to employ Employee and Employee agrees to serve the
Corporation and such of the Corporation's subsidiary companies as may be
designated by the Corporation upon the terms hereinafter set forth.
2. The employment of Employee hereunder shall commence August 5, 1996
and continue for a period ending August 4, 1998, unless earlier terminated under
the provisions of this Agreement.
3. Employee agrees to serve the Corporation and such of the
Corporation's subsidiary companies as may be designated by the Corporation,
faithfully and to the best of Employee's ability under the direction of the
Board of Directors of the Corporation and of such subsidiary companies, devoting
Employee's entire time, energy and skill during regular business hours to such
employment, and to perform from time to time such services, advisory or
otherwise and act in such office or capacity for the Corporation and for any of
its subsidiary companies as said Board of Directors shall request.
4. The Corporation agrees to pay, or cause one or more of its subsidiary
companies to pay, to Employee during the period of the term hereof salary for
Employee's services at the rate (the "Annual Rate") of One Hundred Sixty
Thousand Dollars ($160,000) per annum, payable in equal monthly or other
installments in accordance with the general practice of the Corporation.
5. The Corporation may from time to time pay additional compensation to
certain executives when and if authorized by the Board of Directors or the
appropriate Committee of the Board of Directors of the Corporation. It is
expressly understood that the amount and payment of any additional compensation
if made in the case of Employee is entirely in the discretion of the
Corporation, and nothing herein shall be construed as a promise or obligation to
pay any additional compensation to Employee whatsoever. If sums are paid to
Employee as additional compensation in any year, such payment shall not create
an obligation to pay additional compensation to Employee in any past or
succeeding year, and the Corporation and its subsidiary companies shall not be
obligated to pay to Employee any additional compensation by reason of the
payment of additional compensation to other Employees in any year for any reason
whatsoever. No payments to Employee of additional compensation, if any, shall
reduce or be applied against the salary to be paid to Employee pursuant to
Paragraph 4 hereof.
6. If, during the term of this Agreement, Employee shall become
physically or mentally incapable of fully performing services required of
Employee in accordance with Employee's obligations under Paragraph 3 of this
Agreement, and such incapacity is, or may reasonably be expected to exist, for
more than two months in the aggregate during any period of twelve consecutive
months, as shall be determined by a physician mutually agreed upon by the
Corporation and Employee (or Employee's legal representative if Employee is
incapable of making such determination), which determination shall be final and
conclusive, the Corporation may, upon notice to Employee, terminate this
Agreement and Employee's employment hereunder, and upon such termination,
Employee shall be entitled to receive and shall be paid compensation for a
period of 90 days next following the date of such notice of termination, at the
Annual Rate set forth in Paragraph 4 above, and compensation for the next 90
days at one half of the Annual Rate. Employee agrees to accept such payments in
full discharge and release of the Corporation, its subsidiaries and their
management, of and from any and all further obligations and liabilities to
Employee under Paragraph 4 hereof.
7. (a) The Corporation may in its sole discretion at any time terminate
Employee's employment under this Agreement, whether for cause or without cause.
(b) In the event of a voluntary termination of employment by
Employee for "good reason," or an involuntary termination of employment of
Employee without cause, Employee shall receive as soon as practicable following
such termination a lump sum payment in cash equal to the greater of (A) the
present value of the salary that would have been payable under Paragraph 4 above
during the remainder of the term of this Agreement had Employee not been
terminated, or (B) the present value of one year's salary at the Annual Rate
then in effect. For purposes of this Paragraph 7, (i) all present value
calculations shall be determined using the short term applicable federal rate in
effect at the time of computation as determined by the Internal Revenue Service
for purposes of Section 1274(d) of the Internal Revenue Code, and (ii) "good
reason" shall mean a material breach of this Agreement involving the
Corporation's failure to pay compensation due under the terms of this Agreement.
(c) In the event of an involuntary termination for cause,
Employee shall be entitled to payments under Clause 7(b)(B) so long as the
conduct giving rise to such termination was not, in the Corporation's sole
judgment, willful.
(d) In the event that Employee's employment is terminated by the
Corporation or the Employee for any reason other than those set forth in
subparagraphs (b) and (c) above, the Corporation shall have no further
obligation to Employee hereunder.
(e) Upon termination of Employee's employment for any reason,
Employee's rights under all of the benefit plans of the Corporation shall be
governed by the terms of such plans and not by the provisions of this Agreement.
(f) By entering into this Agreement, Employee waives all rights
under the Corporation's Severance Policy for so long as this Agreement is in
effect.
(g) Notwithstanding any other provisions of this Agreement,
Employee's obligations under Paragraphs 9 and 10 of this Agreement shall survive
the termination or expiration of this Agreement.
8. Any notice to be given by Employee hereunder shall be sent to the
Corporation at its offices, 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxxxx 000x0, and any notice from the Corporation to Employee shall be sent to
Employee at the address set forth under Employee's signature below. Either party
may change the address to which notices are to be sent by notifying the other in
writing of such changes in accordance with the terms hereof.
9. Employee expressly agrees, as further consideration hereof and as a
condition to the performance by the Corporation and its subsidiary companies of
their obligations hereunder, that while employed by the Corporation or its
subsidiary companies and during a period of six months following termination of
Employee's employment, Employee will not directly or indirectly render advisory
services to or become employed by or participate or engage in any business
materially competitive with any of the businesses of the Corporation and its
subsidiary companies (Employee hereby acknowledging that Employee has had access
in Employee's executive capacity to material information about all of the
Corporation's businesses) without the written consent of the Corporation first
had and obtained.
10. Employee agrees that, both during and after Employee's employment
hereunder, Employee will not disclose to any person unless authorized to do so
by the Corporation, any of the Corporation's trade secrets or other information
which is confidential or secret. Trade secrets or confidential information shall
mean information which has not been made available by the Corporation to the
public, including but not limited to business plans, product or market
development studies, plans or surveys; designs and patterns; inventions, secret
processes and developments; any cost data, including labor costs, material
costs, and any data that is a factor in costs; price, source or utilization data
on raw materials, fibers, machinery, equipment and other manufacturing supplies;
technical improvements, designs, procedures and methods developed by the
Corporation; any data pertaining to sales volume by location or by product
category; customer lists; production methods other than those licensed by
outside companies; compensation practices; and profitability, margins, asset
values, or other information relating to financial statements.
Employee acknowledges that the disclosure of the Corporation's
trade secrets or confidential information to unauthorized persons would
constitute a clear threat to the business of the Corporation, and that the
failure of the Employee to abide by the terms of Paragraphs 9 and 10 will
entitle the Corporation to exercise any or all remedies available to it in law
or equity, including without limitation, an injunction prohibiting a breach of
these provisions.
IN WITNESS WHEREOF, Burlington Industries, Inc. has caused this
Agreement to be executed in its corporate name by its corporate officer
thereunto duly authorized, and Xxxx X. Xxxx has hereunto set her hand and seal,
as of the day and year first above written.
BURLINGTON INDUSTRIES, INC.
By_________________________
Xxxxxxx X. Xxxxxx, Xx.
Senior Vice President
_______________________(L.S.)
Xxxx X. Xxxx
