Exhibit 10(o)(viii)
AGREEMENT
This Executive Separation Agreement and General Release (the "Agreement")
is dated as of the 26th day of June, 2007, and is entered into by and between
Albany International Corp., a Delaware corporation with offices and a principal
place of business at 0000 Xxxxxxxx, Xxxxxx, Xxx Xxxx, ("Xxxxxx") and Xxxxxxx X.
XxXxxxxx, a resident of Rensselaer County, New York ("Executive").
WITNESSETH
WHEREAS, Executive has been employed by Albany as Executive Vice President
- Global Planning, Engineering and Procurement and may serve as a director or
officer of various Albany subsidiaries and affiliates, or as a fiduciary to
various employee benefit plans; and
WHEREAS, Albany and Executive have agreed that the Executive's employment
with Albany shall terminate and Executive shall resign all offices and positions
with Albany or any of its subsidiaries or affiliates according to the terms of
this Agreement; and
WHEREAS, Albany and Executive desire to settle all claims and issues that
have, or could have been raised in relation to Executive's employment with
Albany or in relation to any positions he held with any of Albany's
subsidiaries, affiliates, employee benefits plans or trusts, or in any way
related to the termination of such employment and/or service.
NOW THEREFORE, in consideration of the promises and mutual agreements
herein, it is hereby agreed as follows:
1. Executive acknowledges that he was given this Agreement on June 4, 2007
and was afforded 21 days to consider same.
2. Executive was, and hereby is, advised to consult a lawyer before
signing this Agreement and did in fact have the opportunity to obtain advice
from counsel.
3. Executive may accept this Agreement only by signing, dating and
delivering the Agreement to Albany (in the manner set forth in Section 26) on or
before Albany's normal close of business on July 13, 2007. Time is of the
essence with regard to this Section 3.
4. Executive may revoke this Agreement at any time within seven (7) days
after signing and delivering it to Albany by notifying Albany in writing (in the
manner set forth in Section 26) of Executive's decision to revoke. Time is of
the essence with regard to this Section 4.
5. The effective date of this Agreement ("Effective Date") shall be the
8th day after Executive signs and delivers the Agreement in accordance with
Section 3 above, unless Executive revokes the Agreement in accordance with
Section 4 above. If Executive revokes this Agreement in accordance with Section
4 above, this Agreement will not become operative and will not be binding on
Executive or Albany.
6. Executive's employment with Albany shall terminate effective September
30, 2007, (the "Separation Date") unless terminated earlier in accordance with
paragraph 7 or 8 hereof. Effective as of the Separation Date, or the date of any
earlier termination pursuant to paragraph 7 or 8, Executive resigns all offices,
directorships and any other positions held with Albany or any of Albany's
subsidiaries or affiliates, or any of their employee benefit plans or trusts.
Albany agrees to provide Executive with a positive written reference.
7. Nothing herein is intended to alter the at-will nature of Executive's
employment relationship with Albany. Albany reserves the right to terminate
Executive prior to September 30, 2007 with or without cause. Cause shall be
deemed to exist if Albany determines that Executive has:
(i) undertaken a position in competition with Albany;
(ii) caused substantial harm to Albany with intent to do so or as a
result of gross negligence in the performance of his duties;
(iii) wrongfully and substantially enriched himself at the expense
of Albany; or
(iv) been convicted of felony;
8. Executive reserves the right to terminate his employment with Albany at
any time prior to September 30, 2007.
9. From the date hereof until the date Executive's employment with Albany
terminates (either as of the Separation Date or earlier), Executive shall
continue to perform the duties of his current position and assist in the
transition of his duties as directed by the Chief Executive Officer or the Board
of Directors. Executive further covenants and agrees to respond, for a
reasonable time thereafter not to exceed twelve months, to any inquiries from
Albany regarding incomplete or unresolved transitional matters. If Executive's
knowledge and expertise are still needed after the twelve month period, the
parties agree to negotiate a consulting agreement with terms mutually acceptable
to both parties. During the remainder of Executive's employment with Albany,
Albany shall continue to pay Executive at his current rate of compensation less
(i) applicable withholdings and deductions required by law or otherwise agreed
to by the parties, (ii) deductions of premiums due for any health care or life
insurance coverage provided by or through Albany, (iii) 401(k) savings plan or
other Albany benefit plan contributions and (iv) any other applicable
withholdings. During the remainder of Executive's employment with Albany,
Executive will be eligible to receive the standard package of employee benefits
available to similarly situated Albany employees. Albany reserves the right to
modify, supplement, amend or eliminate the standard benefits provided to its
employees, including, without limitation, the eligibility requirements and/or
premiums, deductibles, co-payments or other charges relating thereto.
10. Executive agrees that on or after the last date of his employment with
Albany he shall execute an additional release in the form annexed hereto (the
"Supplemental Release") covering the period from the date of Executive's
execution of this Agreement through his last date of employment. Executive
covenants and agrees that the obligations to be performed by Albany under this
Agreement after the last date of Executive's employment shall be contingent upon
the execution of the Supplemental Release. Failure to execute the Supplemental
Release, however, will not affect the validity of the release contained in
section 17 of this Agreement.
11. In the case that Executive's employment is terminated at the
Separation Date and not prior thereto as contemplated by paragraph 7 or 8,
Albany agrees to provide Executive with the following severance benefits to
which he would not otherwise be entitled. Executive acknowledges and agrees that
these severance benefits constitute adequate legal consideration for the
promises and representations made by him in this Agreement, and are in lieu of
any benefits payable under any severance plan now in existence or adopted prior
to the Separation Date.
(a) Albany will pay Executive the gross sum of $37,491.66 per month for
a period of twelve (12) months from the Separation Date, for a total
of $449,900 in the first twelve (12) months following the Separation
Date, then the gross sum of $38,041.66 per month for an additional
twelve (12) month period (combined, the "Severance Period") for a
total of $906,400 in the first 24 months following the Separation
Date. The aforesaid monthly payments (the "Severance Payments")
shall be paid net of all applicable withholdings and deductions
required by law or otherwise agreed to by the parties. The Severance
Payments will made by check, or direct deposit, on the 15th day of
the month and will begin after the Separation Date and after this
Agreement becomes irrevocable and continue on or about the 15th day
of every month thereafter until paid in full (and may contain pro
rata payment for any partial month). In the event Executive dies
before the last Severance Payment is made hereunder, the balance of
such payments shall be paid to his spouse or, if he shall have no
such spouse at that time, to his estate.
(b) Should Executive elect, pursuant to the protections afforded by the
Consolidated Omnibus Budget Reconciliation Act, to continue group
health care coverage as is from time to time provided by or through
Albany to all similarly situated eligible employees, Albany shall
pay the then applicable required contribution for the first eighteen
(18) months of the Severance Period, or until Executive terminates
such coverage, whichever shall occur first. Notwithstanding the
foregoing, the parties acknowledge that it may be more advantageous
for Executive to elect retiree health care benefits under the Albany
International Corp. Health Care Plan as of the Separation Date. In
that event, Executive shall be responsible for the payment of the
retiree contribution in accordance with the terms of that Plan.
(c) Albany reserves the right to modify, supplement, amend or
eliminate the coverages described in subparagraph (b) above,
including, without limitation, the eligibility requirements
and/or premiums, deductibles, co-payments or other charges
relating thereto.
(d) Albany shall pay Executive for any accrued, unused vacation
pursuant to existing corporate policy at Executive's last rate
of salary, less applicable withholdings and deductions
required by law or otherwise agreed to by the parties. Said
payment shall be made at the first normal pay date following
the Separation Date and irrevocability of this Agreement.
(e) Any stock options that have been previously awarded to
Executive shall be treated in accordance with the terms of
Albany's stock option plan under which such options were
awarded as if Executive's separation was an involuntary
termination. Any restricted stock units that have been
previously awarded to Executive shall similarly be treated in
accordance with the terms of the plans under which such
restricted stock units were granted as if the separation was
an involuntary separation. All such stock options and
restricted stock units shall continue vesting to and including
the Separation Date.
(f) Albany shall pay Executive an additional $96,708.00, less
applicable withholdings and deductions required by law, in one
lump sum on the first date following the sixth month
anniversary of Executive's Separation Date.
(g) Albany shall pay the cost of the financial consulting benefit
provided to Executive though the Ayco Company, L.P. until June 30,
2008 or such time as Albany discontinues providing such benefit to
its executives, whichever occurs sooner provided such costs do not
exceed $15,500. Thereafter, the cost of any such counseling shall be
borne by Executive.
(h) To assist Executive in obtaining new employment, Albany shall make
available and bear the cost of outplacement services to be provided
by Xxx Xxxxx Xxxxxxxx. Said services will be provided for a period
of up to three months following the Separation Date, or until
Executive finds suitable employment, whichever occurs first.
(i) Effective as of the Separation Date, or such earlier date as
Executive's employment may be terminated in accordance with
paragraph 7 or 8, hereof, Executive will no longer be an employee of
Albany, and will cease to accrue benefits under any pension,
deferred compensation, 401(k), profit-sharing or other Albany
employee welfare benefit plan.
(j) Executive acknowledges and agrees that, except for this Agreement,
Executive would have no right to receive all of the benefits
described above.
(k) Executive may keep his laptop computer after all proprietary and
confidential information is removed from its hard drives. It shall
be Executive's obligation to arrange for the removal of all
proprietary and confidential information through Albany's Global
Information Systems' Support Center.
12. In the event Executive's employment with Albany is terminated prior to
the Separation Date for cause, Executive shall not be entitled to, and Albany
shall not be obligated to provide, the severance benefits described in paragraph
11 and in such case the treatment of any stock options or restricted stock units
will be in strict conformity with the terms of the plans under which such option
or restricted stock units were granted. In the event Albany terminates
Executive's employment prior to the Separation Date without cause, or if
Executive terminates his employment with Albany prior to the Separation Date in
accordance with paragraph 8, Executive shall be entitled to receive the
severance benefits described in paragraph 11, including treatment of his stock
options and restricted stock units as if the separation was an involuntary
termination, provided however that the Severance Period shall begin as of the
date of such termination and cease twenty-four (24) months thereafter. In the
event Albany terminates Executive's employment prior to the Separation Date
without cause, Executive's employment with Albany, for the purposes of any
vesting requirements for Executive's stock options and restricted stock units,
shall nonetheless still be deemed to have terminated on the Separation Date.
13. Executive shall remain eligible for a bonus relating to the services
he performs in 2007. Any bonus awarded shall be determined at the same time and
in the same manner in which bonuses are awarded to Albany's management employees
under the then current and prevailing bonus program, except that any such bonus
paid to Executive shall be pro rated to reflect that actual time Executive was
employed by Albany during 2007 and payment of all or a portion such bonus may be
delayed to ensure that it is paid in accordance with Section 409A of the Code.
In the event Albany terminates Executive's employment prior to the Separation
Date without cause, for the purposes of proration, Executive's employment shall
be deemed to have terminated on the Separation Date. Any payment delayed
in accordance with Section 409A of the Code shall be paid in a
lump sum on the first date following the sixth month anniversary of Executive's
Separation Date.
14. In the event Executive elects to retire and begin receiving benefits
under the Albany International Corp. Supplemental Executive Retirement Plan
("SERP Benefits") at any time within the first six months after Executive's
Separation Date, Albany shall, in accordance with Section 409A of the Code,
delay payment, for up to six months, of the SERP Benefits that accrued after
January 1, 2005. Albany shall pay Executive any SERP Benefit withheld pursuant
Section 409A of the Code in a lump sum, along with the next regularly scheduled
SERP benefit payment next following the expiration of the six month period
described above.
15. It is the intent of the parties that this Agreement provides payments
and benefits that satisfy the distribution requirements of Section 409A of Code.
In the event any payments or benefits are deemed by the IRS to be non-compliant,
this Agreement, at Executive's option, shall be modified, to the extent
practical, so as to make it compliant by altering the payments or the timing of
their receipt. The methodology to effect or address any necessary modifications
shall be subject to reasonable and mutual agreement between the parties.
16. As used in this Agreement, the term "Albany" means, individually and
collectively, Albany, each subsidiary, parent company or affiliate of Albany,
and their respective employee welfare benefit plans, employee pension benefit
plans, successors and assigns (including all present and former shareholders,
directors, officers, fiduciaries, agents, representatives and employees of those
companies and other entities).
17. Subject to Executive's right to revoke stated in paragraph 4 above, by
signing this Agreement, Executive immediately gives up and releases Albany from,
and with respect to, any and all rights and claims that Executive may have
against Albany, whether or not Executive presently is aware of such rights or
claims. In addition, and without limiting the foregoing:
(a) Executive on behalf of himself, his agents, spouse, representatives,
assignees, attorneys, heirs, executors and administrators, fully
releases Albany and Albany's past and present successors, assigns,
parents, divisions, subsidiaries, affiliates, officers, directors,
shareholders, employees, agents and representatives from any and all
liability, claims, demands, actions, causes of action, suits,
grievances, debts, sums of moneys, controversies, agreements,
promises, damages, back and front pay, costs, expenses, attorneys
fees, and remedies of any type, which Executive now has or hereafter
may have, by reason of any matter, cause, act or omission arising
out of or in connection with Executive's employment or the
termination of his employment with Albany, including, without
limiting the generality of the foregoing, any claims, demands or
actions arising under the Age Discrimination in Employment Act of
1967 , the Older Worker's Benefit Protection Act, the Employee
Retirement Income Security Act of 1974, Title VII of the Civil
Rights Act of 1964, the Civil Rights act of 1991, the Civil Rights
Act of 1866, the Rehabilitation Act of 1973, the Americans with
Disabilities Act of 1990, and any other federal, state or local
statute, ordinance or common law of any state regarding employment,
discrimination in employment, or the termination of employment.
Notwithstanding the foregoing, Executive is not waiving any right
that cannot, as a matter of law, be voluntarily waived, including
the right to file or participate in the adjudication of a claim of
discrimination filed with any state or federal administrative
agency, though Executive expressly waives any right to recover
monetary damages as a result of any claim filed with any state or
federal administrative agency.
(b) If Executive breaches any obligation under this Agreement, Executive
agrees that Albany shall not be obligated to continue to make
payments under paragraph 11, and to reimburse Albany for any and all
payments previously made pursuant to paragraph 11.
(c) Notwithstanding the foregoing, nothing herein shall relieve Albany
of any indemnification obligations it might owe to Executive by
virtue of Executive's position as on officer of Albany under its
certificate of incorporation, corporate Bylaws or other written
agreement.
18. Executive agrees never to apply for employment with or otherwise seek
to be hired, re-hired, employed, re-employed or reinstated by Albany and waives
any reinstatement or future employment with Albany.
19. Executive acknowledges that as a consequence of his employment with
Albany, proprietary and confidential information relating to the business of
Albany may be or have been disclosed to or developed or acquired by Executive
which is not generally known to the trade or the general public and which is of
considerable value to Albany. Such information includes, without limitation,
information about trade secrets, inventions, patents, licenses, research
projects, costs, profits, markets, sales, customer lists, proprietary computer
programs, proprietary records, and
proprietary software; plans for future development, and any other information
not available to the trade or the general public, including information obtained
from or developed in conjunction with a third party that is subject to a
confidentiality or similar agreement between Albany and such third party. During
the remainder, if any, of, and after, his employment by Albany, Executive shall
not use such information, as denoted above, for his own benefit, or for the
benefit of any other employer or for any other purpose whatsoever other than the
performance of his remaining work for Albany, if any, and Executive shall
maintain all such information in confidence and shall not disclose any thereof
to any person other than employees of Albany authorized to receive such
information. This obligation is in addition to any similar obligations Executive
may have pursuant to any other agreement, statute or common-law. Nothing herein,
however, shall preclude Executive from describing his duties with Albany in
future job interviews.
20. Executive acknowledges and recognizes the highly competitive nature of
Albany's business and accordingly agrees as follows:
(a) For a period of one year following Executive's Separation Date,
whether on the Executive's own behalf or on behalf of or in
conjunction with any person, firm, partnership, joint venture,
association, corporation or other business, organization, entity or
enterprise whatsoever ("Person"), directly or indirectly:
(i) engage in any business which is in competition with Albany or
any of its subsidiaries or affiliates in the same geographical areas
as Albany or any of its subsidiaries or affiliates are engaged in
their business (a "Competitive Business");
(ii) enter into the employ of, or render any services to, any Person
in respect of any Competitive Business;
(iii) acquire a financial interest in, or otherwise become actively
involved with, any Competitive Business, directly or indirectly, as
an individual, partner, shareholder, officer, director, principal,
agent, trustee or consultant; provided, however, that in no event
shall ownership of less than 2% of the outstanding capital stock of
any corporation, in and of itself, be deemed a violation of this
Agreement is such capital stock is listed on a national securities
exchange or regularly traded in an over-the-counter market; or
(iv) interfere with, or attempt to interfere with, any business
relationships (whether formed before or after the Separation Date)
between Albany or any of its subsidiaries or affiliates and their
customers, clients, suppliers or investors.
(b) During the period of time ending three years after the Separation
Date Executive will not, whether on Executive's own behalf or on
behalf of or in conjunction with any Person, directly or indirectly:
(i) solicit or encourage any employee of Albany or any of its
subsidiaries or affiliates to leave the employment of Albany or any
of its subsidiaries or affiliates; or
(ii) hire any such employee who was employed by Albany or any of its
subsidiaries or affiliates as of the Separation Dates or, if later,
within the six-month period prior to such date of hire.
(c) It is expressly understood and agreed that although Executive and
Albany consider the restrictions in this paragraph 20 to be
reasonable, if a final determination is made by a court of competent
jurisdiction or an arbitrator that the time or territory or any
other restriction contained in this Agreement is an unenforceable
restriction against Executive, the provisions of this Agreement
shall not be rendered void but shall be deemed amended to apply as
to such maximum time and territory and to such maximum extent as
such court or arbitrator may determine or indicate to be
enforceable.
21. Executive specifically agrees and promises that he will not directly
or indirectly disparage Albany, (as defined in paragraph 16) or any of Albany's
officers, directors, employees, attorneys or representatives, or any of Albany's
products or services in any manner, at any time, to any person or entity. Albany
specifically agrees and promises that it will not directly or indirectly
disparage Executive in any manner, at any time, to any person or entity.
"Disparage" is defined as but not limited to any utterance whatsoever either
verbal, in writing, by gesture or any behavior of any kind that might tend to or
actually harm or injure Albany, whether intended or not.
22. This Agreement does not constitute an admission by Albany of any
liability to Executive, and Executive understands and agrees that Albany denies
any such liability to Executive.
23. This Agreement constitutes the entire agreement between Albany and
Executive relating to the subject matter thereof, and may not be amended or
modified in any way whatsoever except in writing signed by the parties
hereto. This Agreement shall not be in derogation of Executive's rights under
any Albany stock, pension, retirement, QSERP, or other similar plan or
agreement.
24. Albany and Executive intend for every provision of this Agreement to
be fully enforceable. But, if a court with jurisdiction over this Agreement
determines that all or part of any provision of this Agreement is unenforceable
for any reason, Albany and Executive intend for each remaining provision and
part to be fully enforceable as though the unenforceable provision or part had
not been included in this Agreement.
25. Executive acknowledges that he has read this entire Agreement, that he
fully understands its meaning and effect, and that he has voluntarily signed
this Agreement.
26. Notices or other deliveries required or permitted to be given or made
under this Agreement by Executive to Albany shall, except to the extent
otherwise required by law, be deemed given or made if delivered by hand or by
express mail or overnight courier service to Albany International Corp., 0000
Xxxxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, Xx. Notice by
Albany to Executive shall be given by hand of express mail or overnight courier
service as follows: To Xxxxxxx X. XxXxxxxx, 0000 Xxxx Xxxx, Xxxx Xxxxxxxxx, XX
with a copy to Xxxxxxx X. Xxxx, Xxxx Xxxxxxxxx Xxxxxxxxx Xxxxxx & Ford, LLP, Ten
Post Office Square, Boston, MA.
27. The terms of this Agreement are binding upon and shall be for the
benefit of Executive and Albany, as well as their respective heirs, executors,
administrators, successors and assigns.
28. Executive and Albany each agree that if an action is commenced by any
party alleging breach of this Agreement, the non-prevailing party shall be
liable to the prevailing party for any and all available legal and equitable
relief, as well as reasonable attorneys' fees and costs associated with pursuing
or defending such legal action.
29. Executive understands that the release contained in Paragraph 17
hereof is a general release, and represents that he has been advised to seek
counsel on the legal and practical effect of a general release, and recognizes
that he is executing and delivering this release, intending thereby to be
legally bound by the terms and provisions thereof, of his own free will, without
promises or threats or the exertion of duress. He also acknowledges that he has
had adequate time to review it, have it explained to him, and understands its
provisions.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, Executive and a duly authorized representative of
Albany have signed this Agreement as of the dates set forth below.
Albany International Corp.
Dated: July 11, 2007 By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Xx. Vice President - Human Resources
THE UNDERSIGNED FURTHER STATES THAT HE HAS CAREFULLY READ THE FOREGOING
SETTLEMENT AGREEMENT AND KNOWS THE CONTENTS THEREOF AND SIGNS THE SAME AS HIS
OWN FREE ACT. THIS SETTLEMENT AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
Dated: July 11, 2007 /s/ Xxxxxxx X. XxXxxxxx
----------------------------
Xxxxxxx X. XxXxxxxx
FOR COMPANY USE ONLY
The foregoing Executive Separation Agreement and General Release, signed
and dated by Executive, was received by me on behalf of Albany International
Corp. this 11th day of July, 2007.
/s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------
Xxxxxxx X. Xxxxx, Xx.
SUPPLEMENTAL RELEASE
This supplemental release given to Albany International Corp. ("Albany") by
Xxxxxxx X. XxXxxxxx ("Executive") is executed in consideration for the covenants
made by Albany in a Release and Separation Agreement signed by the Executive on
July 11, 2007.
The Executive and his heirs, assigns, and agents release, waive, and discharge
Albany, its directors, officers, employees, subsidiaries, affiliates, and agents
from each and every claim, action or right of any sort, known or unknown,
arising on or before the date of this Supplemental Release.
(1) The foregoing release includes, but is not limited to, any claim of
discrimination on the basis of race, sex, religion, marital status, sexual
orientation, national origin, handicap or disability, age, veteran status,
special disabled veteran status, citizenship status; any other claim based on a
statutory prohibition; any claim arising out of or related to an express or
implied employment contract, any other contract affecting terms and conditions
of employment, or a covenant of good faith and fair dealing; all tort claims;
and all claims for attorney's fees or expenses.
(2) The Executive represents that he understands the foregoing release,
that rights and claims under the Age Discrimination in Employment Act of 1967,
as amended, are among the rights and claims against Albany he is releasing, and
that he understands that he is not releasing any rights or claims arising after
the date of this Supplemental Release.
(3) This Release shall not affect any rights of Executive pursuant to the
aforesaid Release and Separation Agreement.
EXECUTIVE
____________________ DATE: _________________
Xxxxxxx X. XxXxxxxx
WITNESS: _____________________
